Bowie Knives and the Historic Argument

One argument being fielded in the circuit split driving the upcoming landmark SCOTUS case on the Second Amendment is a historical examination of Bowie knives.

In its landmark 2022 Bruen decision, the Court held that modern gun rules must be consistent with the nation’s historical tradition of firearm regulation.... Applying the historical test to modern sporting rifles has produced conflicting results. A divided panel of the 7th Circuit recently upheld Illinois’ ban, noting that the ubiquitous firearm from 1791 through the mid-19th century was a single-shot muzzleloader. AR-15s with large-capacity magazines, the majority said, are “a far cry from these antecedents.” The court pointed to historical restrictions on Bowie knives as a relevant analogue.

Days later, the 3rd Circuit went the other way on New Jersey’s similar ban. In a 10-5 decision, the majority rejected the Bowie knife comparison. There was no evidence those knives were commonly used for lawful purposes before being restricted, the court noted. By contrast, tens of millions of AR-15-style rifles are in civilian hands today and are overwhelmingly used for lawful purposes.

The 7th Circuit opinion is here. The relevant part begins on page 20; the dissent also cites and challenges the interpretation starting around page 67. Of special note here is the majority's rejection of the idea that Bowie knives were particularly criminal-linked, asserting that they were in common use for lawful purposes -- but were still commonly banned by laws because of their occasional utility to criminals. This is a surprising attempt to deploy the Heller standard to challenge the Bruen standard. 

The 3rd Circuit opinion is here. New Jersey cited Bowie knife bans in its arguments, and the 3rd circuit rejected them "for two reasons: They are too late in time, and none enacted an outright ban on a class of weapons in common use for lawful purposes." To some degree that is a difference of historical interpretation: were Bowie knives in 'common use for lawful purposes,' or were they not? 

However, there's another issue that the 3rd Circuit is raising: the 'assault weapons ban' doesn't bar a particularly dangerous sort of semiautomatic sporting rifle, it bars the entire class of semiautomatic sporting rifles. These can be shown to be both in common use and, statistically, almost exclusively for lawful purposes. Though legislatures attempting to ban them point to highly visible mass shootings involving such arms, mass shootings are a tiny part of the class of shootings; separately, homicidal shootings involving rifles are a tiny class. Once you get to 'mass shootings involving sporting rifles,' you're at statistical noise: better than 99% of such firearms are used exclusively lawfully. Indeed in any given year, in that post the math works out to  99.9975%.

This brings us to an issue not raised in any of the cases so far: the vagueness of the restriction. In the frontier era, such statistical nicety was not possible and legislatures were going off of press reports rather than hard numbers. This, I think, accounts for most of the historical knife bans. "Bowie knives" were not a very well-defined class of knives, and indeed historians still debate exactly what Jim Bowie's knife looked like. The link says the original was 'like a butcher knife in profile,' and doesn't mention if it had a hand guard of any sort. Early attempts to replicate it vary widely: 

Early Bowie knives do not fit the popular image of the weapon. One thinks of a blade with a concave arch (clip point) cut into the end of the blade, and a cross-guard to protect the hand. Early examples, however, had a thick, heavy butcher-knife-like blade, with a straight back (top) and no clip point or hand guard. The blade varied in length from 8½ to 12½ inches and was sharpened on the true edge. Wooden handles were attached with silver pins and washers. The Searles knives of the 1830s were one-piece ebony, checkered, and decorated with small silver nails. Blacksmiths fashioned most of the subsequent Bowie knives and added rudimentary crossguards to keep the hand from sliding onto the blade. Eventually, they lengthened the guards as protection from an opponent's blade, but the owner often found the extended guards clumsy and cut them off. The clip point, a curve on the top of the blade back of the point, became popular. The clip was often sharpened so that a backstroke would inflict a serious wound. Spear-point Bowie blades also were forged, dagger-shaped, with both edges sharpened. Blacksmith-made Bowies were generally plain and unsigned, had iron or brass mountings, and hardwood, bone, or horn handles. The knife was both a hunting knife and a tool. With it, one could clear a path, hack a sapling, dig a hole, or butcher game. In the siege of Bexar in 1835, Texans used Bowie knives to dig through roofs and walls and engage in hand-to-hand combat with the Mexicans. The knife was not designed or balanced for throwing.... 

Bowie knife collections indicate that only about one in ten was American made. English cutlers applied clever motifs and blade etchings that appealed to American tastes and patriotic spirit. Examples include such labels as "American Bowie Knife," "Texas Ranger Knife," "Arkansas Toothpick," "Patriot's Self Defender," "Death to Abolition," "Death to Traitors," "Americans Never Surrender," "Rio Grande Camp Knife," and "I'm A Real Ripper." Handle and guard mountings also carried symbols and slogans with American appeal. Cutlers attached handles of ivory, pearl, tortoise shell, black and gray buffalo horn, India stag horn, and fine woods. Handle pommels of nickel silver featured horseheads, shells, and geometric designs. 

In spite of this great lack of clarity about what precisely was being banned -- note this part of the story is quite analogous to the 'assault' weapons ban attempts -- "Bowie knives" were quite commonly on ban lists and even today are often mentioned by name in knife laws. This is because of the tremendous fame of the Sandbar fight in which Jim Bowie's prowess became nationally (in)famous. Legislatures didn't know exactly what they were, but they knew they didn't want such things around whatever they might be. 

Other knife styles commonly banned by name include 'dirks' and 'daggers.' Today, a 'dirk' is most famously the heritage Scottish weapon; but legislatures don't seem to have intended it at the time they invoked the name in the laws. Rather, they often seem to have been worried about German submarine infiltrators, assuming the Germans would be armed with their naval knife which was at the time commonly also called a 'dirk.' It's actually a double-edged knife we would more usually call a "dagger," unlike the Scottish dirk which is single-edged and usually has fish-scaling ridges on the reverse. 

The American Took & Knife Institute here has a similar historical article about the dirk, which was so badly defined in the law that you could sometimes be charged for carrying both a 'dirk' and a 'Bowie Knife' under different statutes for the same knife -- which, whatever it was, wasn't both at once. Likewise: 

Yet another example of elastic application of a statutory “dirk” restriction appears in Virginia, where the dirk restriction was applied to a “butterfly” knife. In the case of Delcid v Virginia, 526 S.E.2d 273 (2000), the defendant argued at trial that his butterfly knife did not conform to the judicially established definition of a dirk which held it to be a knife with two sharp edges and a point and the knife in question had a single sharp edge. The trial judge ruled that the knife was “a dirk with one side,” thus avoiding controlling authority from a higher court in the state. The conviction was upheld on appeal.

The ignorance of legislators is, sadly, not without widespread historical precedent. Neither has been the willingness of police and even courts to apply laws vigorously without clear understanding of what they actually intended to mean. That is a species of unconstitutional vagueness that ends up being dangerous to our Constitutional rights -- and not only the 2nd! All such rights can be winnowed if vague laws are allowed to infringe upon them, especially if the laws are then enforced with the carelessness that is common to the system.