The Department of Justice has filed its Fifth Circuit appellate brief in Knife Rights, Inc. v. Bondi, No. 25-10754, defending the Federal Switchblade Act, 15 U.S.C. §§ 1241–1245. The case is on appeal from the Northern District of Texas, which upheld the 1958 statute’s interstate-commerce ban and refused to apply Bruen. Mountain States Legal Foundation represents Knife Rights, with the NRA and Second Amendment Foundation in support. The Fifth Circuit panel — Chief Judge Jennifer Walker Elrod, Judge Don R. Willett, and Judge Cory T. Wilson — heard oral argument on April 1, 2026. The brief’s central argument cannot be reconciled with the Supreme Court’s last two decades of Second Amendment law, and I want to walk through why — and offer my read of why DOJ filed it anyway.
A 1958 Statute, Dressed Up With 2026 Talking Points
The brief opens exactly the way an anti-gun amicus would open. It tells the court that the Federal Switchblade Act was passed in 1958 “following a full and complete study of juvenile delinquency conducted by the Senate Judiciary Committee Subcommittee on Juvenile Delinquency,” leaning on testimony from police chiefs that switchblades were tied to robberies and assaults by juveniles. That is a West Side Story-era public-safety pitch. When a Second Amendment brief leads with social cost rather than text and history, the argument is already in trouble.
Police chiefs are W-2 employees appointed by mayors, and the mayors who run the loudest cities — New York, Los Angeles, San Francisco, Chicago — are uniformly anti-gun Democrats. The “police chiefs” consensus on gun control is the consensus of the politicians who hire and fire them. Building a federal constitutional defense on what police chiefs told a Senate subcommittee in 1958 is not law. It is nostalgia in service of a ban.
“The Federal Switchblade Act was originally enacted in 1958 following a full and complete study of juvenile delinquency… automatic switchblade knives were on many occasions the instrument used by juveniles in the commission of robberies and assaults.”
The Supreme Court has been clear: we do not measure constitutional rights by how badly somebody can misuse them. We do not gut the Fourth Amendment because warrants slow down police. We do not gut the Second because some object can be carried discreetly.
The “Inherently Concealed Weapons” Theory Collapses on Contact With Heller
Here is where my frustration boils over. On pages 10 and 11 of the government’s brief, DOJ writes:
“The Supreme Court has repeatedly explained that there is a robust historical tradition permitting the legislature to prohibit the carrying of concealed weapons… The defining feature of an automatic switchblade is that its blade is concealed within the handle of a knife up until the moment that it is used, but there is no constitutional right to such inherently concealed weapons.”
Read that twice. The government’s theory is that an arm can be banned because its design makes it concealable.
That theory cannot survive Heller. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court struck D.C.’s handgun ban — and the handgun is the most readily concealable common arm in America, and the firearm used in violent crime here by a wider margin than any other. None of that mattered. The Court protected handguns anyway. McDonald v. City of Chicago, 561 U.S. 742 (2010), incorporated that holding against the states. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), went further and held that you have the right to carry that concealable handgun in public for self-defense.
So the government is telling the Fifth Circuit that an automatic switchblade falls outside the Second Amendment because it is “inherently concealed,” while three Supreme Court decisions protect the most concealable common firearm in America. Both cannot be true. And Caetano v. Massachusetts, 577 U.S. 411 (2016), already held that the Second Amendment “extends, prima facie, to all instruments that constitute bearable arms.” A switchblade is a bearable arm. Full stop.
Why I Think DOJ Filed a Brief It Knows Is Weak
The same DOJ — Pam Bondi as Attorney General, Harmeet Dhillon running the new Second Amendment Section in the Civil Rights Division — has done extraordinary work on the other side of the ledger: amici against New Jersey’s AR-15 ban in Cheeseman v. Platkin, against Illinois’s PICA in Barnett v. Raoul, a direct suit against D.C. over its semi-auto rifle ban, an enforcement action against the Los Angeles County Sheriff’s Department for slow-walking CCW permits under Bruen, and support for the plaintiffs in Wolford v. Lopez, Hawaii’s “vampire rule” case. So how does the same shop file this brief?
My read is strategy, not incompetence. Article II charges the President with taking care that the laws be faithfully executed. The executive branch has a strong tradition of defending federal statutes; a “Windsor” — where the United States flips and tells a court a federal law is unconstitutional — is a late-game, high-court move. I think DOJ has concluded that this Supreme Court, with the institutionalist instincts of Justice Brett Kavanaugh and Chief Justice John Roberts, will not strike federal gun laws right now, but will strike outlier state laws.
The pattern fits. We won Heller against D.C., McDonald against Chicago, Caetano against Massachusetts, and Bruen against New York — all state and local. When the federal government has been the target, we have lost: Rahimi, 602 U.S. 680 (2024), and Bondi v. VanDerStok, 604 U.S. ___ (2025), 7-2 on the ATF ghost-gun rule. United States v. Hemani, argued this term on § 922(g)(3), looks the same way to me.
Bad Precedent Is Worse Than a Weak Brief
If that is the chessboard, DOJ’s calculus is straightforward: a smell-test defense of the Federal Switchblade Act satisfies Article II’s take-care duty without dragging a bad federal-law fact pattern to the Supreme Court and locking in another Rahimi-style loss. Meanwhile, build pro-Second Amendment precedent at the state level, where this Court is willing to swing the hammer. Then point those wins back at the NFA and statutes like this one.
I have no inside information. I am reading the tea leaves. But it is the only theory I have that explains how the same DOJ writes the Cheeseman amicus and a brief telling the Fifth Circuit that “inherently concealed weapons” sit outside the Second Amendment. If the strategy works, fine. If it does not, this brief lives in the Federal Reporter as a quote anti-gun litigants cite for the next twenty years. That is the risk of filing weak arguments on purpose.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.