On October 21, a unanimous Fifth Circuit panel held in Knife Rights, Inc. v. Blanche, No. 25-10754, that the Federal Switchblade Act’s restrictions on interstate commerce in switchblade knives violate the Second Amendment. Chief Judge Elrod wrote for a panel that included Judges Willett and Wilson. The opinion rests on a proposition I have defended for years: knives are arms, and the government must justify any restriction on them with this nation’s regulatory tradition. Here, the government could not.
The Holding, and Which Statute Fell
Precision matters, because the Federal Switchblade Act contains two operative provisions and the panel treated them differently. Section 1242 of Title 15 reaches anyone who “knowingly introduces, or manufactures for introduction, into interstate commerce, or transports or distributes in interstate commerce, any switchblade knife,” and it carries a fine of up to $2,000, imprisonment of up to five years, or both. The Fifth Circuit held that provision unconstitutional and reversed the dismissal of that claim. Section 1243, which governs manufacture, sale, and possession in the territories, Indian country, and other areas of federal jurisdiction, is a separate matter that I address below.
The court opened with the point that decides the case:
“Applying the framework articulated in New York State Rifle & Pistol Association, Inc. v. Bruen, we hold that the FSA is unconstitutional.”
Knives Are Arms
Under Bruen, 597 U.S. 1 (2022), the first question is whether the Second Amendment’s plain text covers the conduct. The panel began with the definition in District of Columbia v. Heller, 554 U.S. 570, 581 (2008), and then recounted what any student of the founding knows: colonists carried knives as a constant necessity, and men of every station wore one as part of their daily dress. The court then addressed the switchblade directly:
“Switchblade knives are no exception.”
Springblade knives, the opinion explains, have been made for hundreds of years because a pocketknife that opens easily with wet, cold, or gloved hands has always been useful, and certain flintlock pistols of the 1700s carried them. Large-scale American production began in the 1880s. The record also showed millions of automatically opening knives in the country today, lawfully used for hunting, fishing, and camping. The court concluded:
“Consequently, switchblade knives are ‘arms’ ‘in common use’ both then and now.”
I have written about the common-use standard in the Harvard Journal of Law & Public Policy, and it is the same standard the petitioners invoke in Viramontes v. Cook County and Grant v. Higgins, the AR-15 cases the Supreme Court will hear on December 2.
The Government Failed on the “How”
Because the text covers the conduct, the burden shifted. The court put it plainly:
“The government bears the burden of establishing that the FSA comports with well-established principles of the Second Amendment and its regulatory tradition. The government fails to meet its burden.”
The government relied on nineteenth-century cases and laws regulating concealable weapons. The panel assumed that this tradition speaks to the “why” of the statute. But United States v. Rahimi, 602 U.S. 680, 692 (2024), teaches that a law with a permissible purpose can still burden the right to an extent beyond what the founding tolerated. The “how” is where the Switchblade Act failed:
“The government cites no historical analogue that regulates the manufacture, transportation, or distribution of ‘inherently concealable weapons,’ much less switchblade knives.”
The historical survey on which the government itself relied, a catalog of nearly two hundred pre-1900 statutes regulating daggers, dirks, and sword canes at 50 J. Legis. 223 (2024), did not help it either. Only two, an 1881 Arkansas law and an 1837 Georgia law, regulated bladed weapons in a manner analogous to Section 1242. Two outliers among two hundred statutes do not make a tradition.
The opinion opens with the 1955 film Rebel Without a Cause, in which a switchblade is drawn outside a planetarium, and ties the 1958 statute, Pub. L. 85-623, to the juvenile-delinquency anxieties of that decade. A statute born of a 1950s moral panic has no roots in the founding. Congress may not ban an arm because a motion picture made it look menacing.
The Section 1243 Problem and What the Ruling Means
The panel affirmed dismissal of the facial challenge to Section 1243. The court reasoned that the challengers had to show the provision has no lawful applications, and the government identified places such as courthouses, federal prisons, and military bases where arms restrictions are presumptively permissible. In the court’s words, “the challengers fail to establish that § 1243 has no lawful applications.”
I disagree. In my view the panel misapplied the framework for facial challenges, reaching the right conclusions on everything else and then withholding relief on a procedural ground. The court did not hold Section 1243 constitutional; it did not reach the Second Amendment question. Courts need clearer guidance on how the facial-challenge standard works in Second Amendment cases, and I expect this defect to be corrected in time.
The decision binds only Texas, Louisiana, and Mississippi, and the government may seek further review. But its reasoning travels. A victory for knives is persuasive authority for firearms, and the reverse is equally true. Credit belongs to Knife Rights and the plaintiffs who carried this case to judgment.
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.