The Heller Decision

I'm re-reading the Heller Decision, written for SCOTUS by Antonin Scalia. He makes the argument that the first ('prefatory') clause does not limit the scope of the second ('operative') clause to 'well organised militias'. I'm not as swayed by this argument as I was when I first read the opinion, but something else came to mind.

He concludes his analysis of the operative clause noting "we find that they guarantee the individual right to possess and carry weapons in case of confrontation". One rather odd aspect to this interpretation is the addition of the notion of confrontation. That in itself seems to limit the scope of the Amendment, and begs the question" does this right not exist in the absence of confrontation? If a confrontation is simply an argument or a disagreement, is one justified in carrying a weapon to any setting in which differences opinion are to be expected?

That is the first puzzle of the majority's ruling. The second is the notion of "arms". Scalia frequently uses weapons as a modern day synonym for arms. Note that the constitution does not refer specifically to firearms, which it could have done given that they did exist at the time of its drafting, but to arms in general. Knives must surely therefore be considered a subset of arms in general.

However there are numerous state regulations limiting the carrying of knives. For example this website summarizes the rules relating to the carrying of knives: "Carry laws forbid an individual from carrying, concealed or open, certain knives. For example, some states forbid an individual from conceal carry of knives over a certain length but open carry of that same knife is legal. Other states forbid the carry, concealed and open, of certain knives. Most knives that are barred from carry are ones deemed by society to have no utility uses and, therefore, their only use is as weapons".

That knives whose sole use is as a weapon are regulated. In New York State, for example, it is illegal to carry "a dirk, dagger, or stiletto with the intent to use it as a weapon against another". It might be argued that this permits the carrying of knives if the bearer is not intending to use it as a weapon, but that seems inconsistent with Scalia's addition that the Second Amendment applies "in case of confrontation".

Moreover, some types of knives are barred from being "kept" (owned) at all. As the "Knife Up" website notes: "Ownership laws forbid individuals from owning certain types of knives that society has deemed “deadly weapons” or “dangerous.” Most of the time, these knives were once associated with unlawful people such as gangs, the mob, and outlaws. It is for this reason that the Bowie knife has been outlawed in so many states".

So it appears that both the ownership and the carrying of knives are quite heavily regulated at the State level, but ought to be covered by the Second Amendment in the same way as guns are. So either the NRA is wrong about the limits to regulation the Second Amendment affords, or the States have on their books a raft of unconstitutional restrictions on the owning and carrying of knives.