Man finds 2nd Amendment protects his use of banned switchblade

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Although a switchblade is not typically considered the best weapon for home security, a recent District 3 appellate decision found that the owner of a folding blade in Wisconsin was still entitled to protection under the Second Amendment.

In an opinion issued out of Outagamie County late last month, the appellate court in State of Wisconsin v. Cory S. Herrmann, 2015 AP 53 CR confirmed that a Wisconsin statute banning switchblades was unconstitutional as it was being applied to the defendant.

For such a ban to pass muster following the U.S. Supreme Court’s seminal 2008 Heller decision, the government now has to show that an instance of designated alleged harm is “real, and not merely conjectural”, and that enforcing a particular statute would actually help keep Wisconsin residents safer.

According to stipulated facts, Cory S. Herrmann was at his home in Appleton, Wis. on Sept. 2, 2012, when he dropped his switchblade knife while demonstrating its use to a friend.

The sharp blade penetrated deep into Hermann’s left groin area, piercing the femoral artery and prompting at least one worried visitor to call 911.

Responding officers found the switchblade and confiscated it immediately. The weapon was described as a “spring-assisted folding knife with a 4-inch blade.” The state later charged Herrmann with violating Wis. Stat. 941.24(1), as well with possessing drug paraphernalia (a water bong).

Wis. Stat. 941.24(1) very broadly bans most switchblades from being possessed or owned in the state. Specifically, it prohibits:

“… any knife and blade which opens by pressing a button, spring or other device or by gravity or by a thrust or movement.”

Herrmann demanded that his case be dismissed, arguing that the US Supreme Court’s 2008 Columbia v. Heller, 554 US at 592 decision gave him the right to possess a switchblade in his house for home protection.

Judge Dee Dyer disagreed with Herrmann, stating that the statute was presumed to be constitutional and that Herrmann had the burden of proving otherwise. He was found guilty of both possessing drug paraphernalia and of unlawfully possessing a switchblade.

The state, in the appellate case, tried to suggest that the lower court’s decision was consistent with the earlier Heller and Donaldson decisions. After all, nothing in those decisions gave a defendant free rein to carry and possess “any weapon whatsoever for whatever purpose,” according to the state’s brief, which quoted Heller.

Moreover, the Heller decision does prohibit carrying “dangerous and unusual weapons.” The state’s brief went on to suggest that Herrmann’s switchblade would probably fall into that category of weapon.

The 2008 Heller decision specifically found that the city of Washington D.C. could not impose a blanket ban on handgun ownership, in part because the weapons to be banned were part of a “class of arms” that has been “overwhelmingly chosen by American society.” The state of Wisconsin argued that 94.24(1) should nonetheless survive Heller in part because switchblades do not fall into a “similar” class of arms.

Herrmann’s counsel argued that Heller was persuasive and much more on point in the current case, and left little room for doubt that Herrmann’s use of the switchblade was protected.

The appellate court agreed with Herrmann, confirming that the Supreme Court’s decision in Heller created a high threshold for state statutes, especially if 2nd Amendment rights involving home defense were at issue.

The Heller and McDonald decisions, as well as their progeny in the past seven years, have reinforced that there should be a more thoughtful application of the US Constitution’s Second Amendment protection of an individual’s right to bear and keep arms for self-defense.

After Heller and McDonald were decided, the appellate court pointed to a two step-test that had been used in subsequent cases. The test considers:

1. Whether a challenged law imposes a burden on conduct that falls within scope of 2nd Amendment guarantees;
2. And, if the answer to the first question is “yes,” then what are the means and ends concerned with the law in question?

In this case, said the court, the law did impose a burden on the defendant in a matter that fell within the 2nd Amendment’s and Wisconsin Constitution’s protections. So the state had to show that real harm to the larger community could have resulted from the use of a switchblade, and “that regulation will in fact alleviate these harms in a direct and material way,” quoting the Turner Broadcasting case.

Although the state asserted that Wis. Stat. 941.24(1) aims to protect the general public from possibly “lethal” surprise attacks by switchblade, the appellate court found the the state had come up short in its attempt to prove this fact.

The appellate court pointed to 2013 FBI statistics suggesting knives and cutting tools were involved only in 12.2 percent of the murders that are reported in the US. Those same statistics also showed that firearms were used in 68.9 percent of those crimes, and that handguns were used in almost 47.22 percent of the murders.

Additionally, if the Supreme Court in Heller found it unconstitutional to restrict handgun ownership for home protection even when serious concerns about handgun safety in Washington D.C. were involved, the appellate court noted, it was appropriate for the appellate court to find a Wisconsin statute unconstitutional for restricting the use or ownership of a considerably less dangerous weapon.

The appellate court reversed the case in part, overturning the single count of possession of a switchblade.