A central theme that runs throughout Ciyou & Dixon, P.C.’s blog posts is education--to gain an understanding about the law so that you are informed and the most effective citizen and/or legal consumer you can be. One part of this is having a voice in law making and trying to change or develop the law on the legislative front.
In posts in 2011, Ciyou & Dixon blogged about legislative issues arising within and potentially impacting its practice areas, which includes weapons and firearms, such as Indiana’s consideration and, ultimate adoption of, controversial Indiana Senate Bill 292.
This Bill, now law, re-balanced and removed most of the authority of local government to regulate firearms at the local level; local governmental units had been given this authority by the General Assembly many years prior when it codified Home Rule.
Turning to the present, on January 4, 2012, Senator Jim Tomes authored and introduced Senate Bill 6, also addressing weapons. This Bill (if passed) removes a provision of the Indiana penal code that makes it a Class B misdemeanor for a person to manufacture, possess, display, offer, sell, lend, give away, or purchase any knife with a blade that opens automatically. Such knives are commonly referred to as “switchblades.”
Senate Bill 6 is a simple bill and provision, but one with fascinating legal implications and dimensions, aside from evoking some emotional responses: this Bill raises constitutional issues and speaks to the very right of state sovereignty.
Indeed, it could be on a collision course with the Federal governments’ (i.e., Congress) right to impose laws otherwise under the guise of the Commerce Clause, given the potentially conflicting Federal law on point (addressed below). This is a good thing and keeps a proper balance of power. All sorts of legal issues manifest state(s)-Federal conflict presently, including immigration and health care.
To aid readers in opening and maintaining a dialogue on the subject, this post addresses some of the thorny issues Senate Bill 6 raises.
The first is the emotional dynamic. The legal theory supporting a ban on switchblades is they may be readily concealed and deployed, and thus, are more suited for criminal use: “Switchblade knives are more dangerous than regular knives because they are more readily concealable and hence more suitable for criminal use. So it is rational to ban them, and not regular knives as well.”
But are they?
Acknowledging the sensitivity for someone who has been injured by a criminal with a switchblade, this is a dubious distinction upon which to draw a legal and penal line. In fact, many professionals, including knife-handlers, take issue with this legal theory/notion because the blade of a switchblade is shorter than comparable fixed blade knives that can be just as easily concealed (longer, thicker and heavy blades cannot be effectively deployed and re-deployed on switchblades).
And a host of attributes of fixed blades may result in more serious injury if used by the criminal element and, thus, make fixed blades more lethal and effective for the criminal element. First, fixed-blades do not have to open; they are already exposed and may be deployed by the criminal element straight away.
In addition, fixed blades customarily have better handles or gripping surfaces that may facilitate repeated and more serious stab wounds than the blades associated with many commercially available switchblade knives.
Finally, a carefully designed hilt usually separates the blades of fixed knives, which is a vertical stop between the handle of a knife and the blade itself. This allows for more effective stabbing motions (thrust) and rapidity (speed) of thrusts by maintaining position of the hand and avoiding it from slipping onto the cutting surface. Most switchblades are not designed in such a robust fashion.
All of this is unpleasant, but as a legal principle, emotion should not be equated to fact and cause a “knee-jerk” law-making response, which may have been the case when switchblade bans were in vogue in the 1950s.
Notwithstanding, Indiana adopted a criminal code banning switchblade knives in 1957. With technological advances, there were more ways a folding knife could have its blade deployed “automatically” (and still are) than the penal code prohibited. For this reason, in 1983, the switchblade penal law was repealed and replaced with a more specific version banning such knives.
The current Indiana penal provision is set forth for readers’ use as follows:
“It is a Class B misdemeanor for a person to manufacture, possess, display, offer, sell, lend, give away, or purchase any knife with a blade that: (1) opens automatically; or (2) may be propelled; by hand pressure applied to a button, device containing gas, spring, or other device in the handle of the knife.”
In a decision in 2009, the Indiana Court of Appeals considered April Lacy’s challenge to this statutory provision of the General Assembly. She (Lacy) contended, in a criminal appeal following being convicted for having a switchblade that the switchblade ban contained in Ind.Code § 35-47-5-2 was unconstitutional on its face and violated Article I, Section 32 of the Indiana Constitution, which specifies:
“The people shall have a right to bear arms, for the defense of themselves and the State.”
The Court of Appeals disagreed, and it found this statutory provision did not place a material burden upon Lacy’s constitutionally protected core value of the right to defend herself:
“In summary, we cannot say that switchblades are typically possessed by law-abiding citizens for self-defense purposes. We also conclude that Ind.Code § 35-47-5-2 is limited because it does not prohibit the possession of all knives but only knives that open automatically...”
Therefore, switchblades, as articles of contraband, have a somewhat developed, fifty-year legal history in Indiana. Unlike a handgun, which is also said (legally thought) to be more easily concealed and thus regulated, but generally legal save as it is used, contraband, like switchblades, is inherently illegal and unable to be lawfully possessed for any reason.
If Senate Bill 6 is passed into law, this will change; and it will likely put switchblades into the class of ordinary knives that may be subject to constitutional protection under Article I, § 32 of the Indiana Constitution at some indeterminate point in the future (if challenged) as normal or ordinary defensive weapons. For this reason, Senator Tomes bill has profound implications.
As a law, it will change Indiana penal law, potentially impact and strengthen Indiana’s Constitutional right to bear arms, and bring into a sharp focus the right of the State to regulate its affairs versus the Congress. Again, and as already noted, many states have laws on the books that are already in tension and incongruent with Federal law (i.e., immigration) or flat-out in conflict with it (i.e., medical marijuana). This is, in part, why the judicial systems exist.
Specifically, “How is this the case under Senate Bill 6?”
Under Federal Anti-Switchblade Act , which was adopted at the same time as Indiana’s original switchblade ban in the later 1950s, it prohibits the possession of switchblade knives within any territory or possession of the United States. So this could create state-federal tension within the law, unless one of its exceptions applies. These exceptions run the gambit from military to technical, but do allow a one-armed man to lawfully possess a switchblade knife.
Who could or would potentially decide this dispute? It is foreseeable a challenge would reach the Indiana Supreme Court, and potentially, the United States Supreme Court.
For these reasons, consideration and study of Senate Bill 6 is a primer in federalism. It has significant legal implications and focuses on who should decide matters that may involve interstate commerce. Under the Commerce Clause, Congress clearly will take the position it has this power and authority to do so.
The states, particularly of late, are recoiling under the proliferation of federal laws (which run into the tens of thousands) and regulations and implications and burdens for the states. In addition, some legal experts argue such Federal laws are criminalizing what is actionable in a civil courts only and making criminals of an individual’s inadvertent stumble into some obscure Federal penal law.
For anyone interested in this legislation, along with these ancillary considerations, which precipitated this blog post, attorney Bryan Ciyou, the author of this blog post for Ciyou & Dixon, P.C., spoke with Sen. Tomes about his bill on Friday, January 6, 2012. Sen. Tomes invited everyone to the hearing to have a voice. This fascinating bill will be heard by Senate Corrections Committee on Tuesday, January 10th ad 9:00 a.m. in Room 130 of the Statehouse.
Interested? Concerned? Elated? Be involved. Be heard.
1. Crowley Cutlery Co. v. United States, 849 R.2d 273, 278 (7th cir.1988).
2. Ind.Code § 35-23-8-1 (amended in 1977, now repealed).
3. Ind.Code § 35-47-5-2 (amended in 2002).
4. Ind.Code § 35-47-5-2 (current).
5. Lacy v. State, 903 N.E.2d 486 (Ind.Ct.App.2009).
6. S.Rep. 85-1980, 85th Cong.2d Sess. (1958), 1958 U.S.C.C.A.N. 3435, 3436, 3437.
7. 15 U.S.C. §§ 1241-45 (current).