City of Seattle v. Evans

¶1 — Wayne Anthony Evans contends that Seattle Municipal Code (SMC) 12A.14.0801 violates his right to bear arms under article I, section 24 of the Washington Constitution and the Second Amendment to the United States Constitution because the ordinance does not permit him to carry a small, fixed-blade “paring” knife for the purpose of self-defense. A jury convicted Evans of violating this ordinance, and both the superior court and the Court of Appeals affirmed.

¶2 We affirm the Court of Appeals but on different grounds. We hold that Evans’s paring knife is not an arm entitled to constitutional protection and that Evans therefore cannot establish that SMC 12A. 14.080 was unconstitutionally applied to him.

FACTS

¶3 Seattle Police Officer Michael Conners stopped a vehicle driven by Wayne Anthony Evans for speeding in the Central District of Seattle. As Conners approached Evans’s vehicle, he observed furtive movements from Evans and his passenger, and he smelled marijuana. Conners directed Evans to exit the vehicle and asked him whether he had any weapons. Evans responded that there was a knife in his pocket. Conners instructed Evans not to reach for the knife; Conners then reached into Evans’s front right pocket, retrieved a fixed-blade knife with a black handle, and placed Evans under arrest for possession of a fixed-blade knife.

¶4 The city of Seattle (City) charged Evans with the unlawful use of weapons in violation of SMC 12A. 14.080(B).2 The case proceeded to trial and the City introduced the knife into evidence and presented testimony from one witness, Con-*860ners. Conners identified the knife that he recovered from Evans at trial and the State entered that knife into evidence. When asked, Conners described the knife as having a “black handle with a metal colored, blade” that was “about—about this long,” apparently gesturing with his hands. Conners admitted that he was concerned that the knife had a fixed blade—that is, it had a blade that would not fold into the handle—and alternately described the blade as resembling a “kitchen knife” or a “paring knife.”3 He also stated that the knife had a sheath in the form of a plastic cover on the blade. ¶5 The municipal court instructed the jury:

Jury Instruction 3: A person commits the crime of Unlawful Use of Weapons when he or she knowingly carries a dangerous knife on his or her person.

Jury Instruction 4: Dangerous knife means a knife, regardless of blade length, with a blade which is permanently open and does not fold, retract, or slide into the handle of the knife and includes a dagger, sword, bayonet, bolo knife, hatchet, ax, straight-edged razor or razor blade not in a package, dispenser, or shaving appliance.[4]

The jury returned a general verdict of guilty, and Evans’s conviction was affirmed by the superior court and the Court of Appeals. See City of Seattle v. Evans, 182 Wn. App. 188, 327 P.3d 1303, review granted, 181 Wn.2d 1022, 339 P.3d 634 (2014).

¶6 We granted review and now affirm.

ANALYSIS

¶7 Evans brings an as-applied challenge to SMC 12A. 14.080, arguing that the statute’s prohibition on carry*861ing fixed-blade knives^ unconstitutionally infringes on his right to bear arms. In answering this challenge, the threshold question is whether Evans demonstrates that his fixed-blade knife is a protected arm under the Washington or federal constitution. Though we previously held that small, fixed-blade paring knives are not arms under the Washington Constitution, City of Seattle v. Montana, 129 Wn.2d 583, 919 P.2d 1218 (1996) (plurality opinion), Evans asks us to reconsider that holding in light of District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).

¶8 In considering whether paring knives are entitled to constitutional protection following Heller, we conduct a thorough survey of cases considering the protections afforded by the right to bear arms. Using principles and factors derived from Heller, Montana, and other courts to consider the scope of the term “arms,” we hold that not all knives are constitutionally protected arms and that Evans does not demonstrate that his paring knife is an “arm” as defined under our state or federal constitution. Therefore, Evans cannot establish that SMC 12A. 14.080(B) is unconstitutional as applied to him and we reject his as-applied challenge.5

I. Standard of Review

¶9 We review constitutional issues de novo. State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d 207 (2012). We presume that statutes are constitutional and place “ The *862burden to show unconstitutionality ... on the challenger.’ ” In re Estate of Hambleton, 181 Wn.2d 802, 817, 335 P.3d 398 (2014) (alteration in original) (quoting Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 215, 143 P.3d 571 (2006)).

¶10 “ ‘[A]n as-applied challenge to the constitutional validity of a statute is characterized by a party’s allegation that application of the statute in the specific context of the party’s actions or intended actions is unconstitutional.’ ” State v. Hunley, 175 Wn.2d 901, 916, 287 P.3d 584 (2012) (alteration in original) (quoting City of Redmond v. Moore, 151 Wn.2d 664, 668-69, 91 P.3d 875 (2004)). “ ‘Holding a statute unconstitutional as-applied prohibits future application of the statute in a similar context, but the statute is not totally invalidated.’ ” Id. (quoting Moore, 151 Wn.2d at 669). “In contrast, a successful facial challenge is one where no set of circumstances exists in which the statute, as currently written, can be constitutionally applied.” Moore, 151 Wn.2d at 669.

II. Article I, Section 24 and City of Seattle v. Montana

¶11 We first consider Evans’s argument that his paring knife is an arm under article I, section 24 of the Washington Constitution. Accord State v. Coe, 101 Wn.2d 364, 373-74, 679 P.2d 353 (1984) (we consider constitutional questions first under our own state constitution). Article I, section 24 of the Washington Constitution reads:

The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.

This “right to bear arms” is an individual right that exists in the context of that individual’s defense of himself or the state. State v. Sieyes, 168 Wn.2d 276, 292-93, 225 P.3d 995 (2010). We considered but did not decide whether the scope of the term “arms” embraced knives in City of Seattle v. *863Montana. See 129 Wn.2d at 591 (“In the absence of a Gunwall analysis on the question of whether, or what type of, knives constitute ‘arms’ under art. I, § 24, we decline to reach this question.” (citing State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986))).

¶12 In Montana, this court considered a challenge to former SMC 12A.14.080 (1987), substantively the same ordinance at issue here. Alberto Montana was convicted of the unlawful use of a weapon for possessing a small, fixed-blade paring knife approximately three inches long. On appeal, he argued that former SMC 12A.14.080 violated his right to bear arms under article I, section 24 and that the ordinance was unconstitutionally vague or overbroad.

¶13 This court issued a divided opinion. The lead opinion held that the ordinance, which makes it “unlawful for a person knowingly to ... [cjarry concealed or unconcealed on his/her person any dangerous knife,” was a “reasonable]” restriction on a citizen’s “right to bear arms in defense of himself,” as guaranteed by the Washington Constitution article I, section 24. Former SMC 12A. 14.080(B); Montana, 129 Wn.2d at 599. Justice Alexander’s concurrence rejected that view, opining that the lead opinion “incorrectly determines that the ordinance . . . passes muster under Washington’s constitution when applied to a case where the knives are ‘arms,’ as that term was envisioned by the drafters of our state constitution.” 129 Wn.2d at 600. His concurrence expressed the view that “the drafters of the state constitution intended, by [the] plain words [of Washington Constitution article I, section 24], absolutely to protect a person’s right to carry arms for personal defense.” Id. “Seattle’s ordinance is such a broad prohibition on the possession and carrying of knives, including those that fall within the definition of‘arms,’ that it is not... a ‘reasonable regulation’ [as the lead opinion would hold].” Id. The concurrence stated, “I fail to see how the ordinance can be considered constitutional when it is applied so as to prohibit the carrying of ‘arms’ for the purposes of self-defense.” Id. at 600-01.

*864¶14 Nonetheless, five justices held that fixed-blade paring knives and small kitchen knives—such as the knife at issue in this case—are not protected arms under the Washington State Constitution. See id. at 599 (Durham, C.J., concurring, joined by Guy, J.), 601 (Alexander, J., concurring, joined by Johnson and Madsen, JJ.) (Montana’s small paring knife is not an arm as it is neither a traditional nor a modern arm of self-defense). The four justices in the lead opinion declined to decide the issue but stated that “the term ‘arms’ extends only to weapons designed as such, and not to every utensil, instrument, or thing which might be used to strike or injure another person.” Id. at 590-91 (quoting State v. Nelson, 38 La. Ann. 942, 946, 58 Am. Rep. 202 (1886)). Thus, under Montana, Evans’s fixed-blade paring knife is not a protected arm under article I, section 24.6

III. The Parameters of the Right To Bear Arms

¶15 Evans urges us to reconsider Montana and hold that the term “arms” includes fixed-blade knives such as his paring knife. Evans also asserts that even if his knife is not protected under article I, section 24, Montana is abrogated and his knife is protected by the Second Amendment following the United States Supreme Court’s holding in Heller. In order for us to reconsider our holding, Evans must demonstrate either that the decision is incorrect or harmful or that the legal underpinnings of the decision have *865changed or disappeared altogether. W.G. Clark Constr. Co. v. Pac. Nw. Reg’l Council of Carpenters, 180 Wn.2d 54, 66, 322 P.3d 1207 (2014). Evans specifically argues that we must reconsider the parameters of the right to bear arms under the Washington Constitution in light of Heller and the protections afforded by the Second Amendment.

A. Survey of the term “arms”

¶16 The Second Amendment to the United States Constitution reads, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” As with article I, section 24, this guarantees an individual right to keep and bear arms. Heller, 554 U.S. at 592-94. This right is incorporated against the States. McDonald v. City of Chicago, 561 U.S. 742, 791, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010) (plurality opinion); see also Sieyes, 168 Wn.2d at 291.

¶17 The United States Supreme Court discussed the parameters of the right protected by the Second Amendment in Heller. Though Heller specifically held that the right to bear arms extended to handguns, the Supreme Court defined the term “arms” to encompass all bearable arms that were common at the time of the founding and that could be used for self-defense. 554 U.S. at 581, 627. The court continued:

The term [arms] was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.”

Id. at 581 (quoting 1 A New and Complete Law Dictionary (1771)). This definition is designed to protect an individual’s right to carry a weapon for the particular purpose of confrontation. Id. at 592. However, this definition of “arms” still contemplates that an arm is a weapon. Id. at 581 (“the term [arms] was applied, then as now, to weapons . . . ”); see also *866id. (noting that Samuel Johnson’s 1773 dictionary defined “arms” as “ ‘[w] eapons of offense, or armour of defence’ ” (alteration in original) (quoting 1 Dictionary of the English Language 106 (4th ed.) (reprint 1978))).

¶18 This definition of “arms” under the federal constitution is not unlimited: “the Second Amendment right, whatever its nature, extends only to certain types of weapons.” Id. at 623 (citing United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939)). Specifically, the Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. Id. at 625. The Court then stated that the District of Columbia’s handgun ban at issue in the case “amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose.” Id. at 628.

¶19 Evans’s reliance on Heller is misplaced—an analysis of the term “arms” under the Second Amendment does not require a different result than noted above. Heller addressed a local ordinance that completely banned handguns in the home and is simply too different to provide useful guidance here. See id. at 636 (Second Amendment bars “the absolute prohibition of handguns held and used for self-defense in the home”). Heller does not address the use of knives carried for self-defense. See Wooden v. United States, 6 A.3d 833, 839 (D.C. 2010) (“Heller is focused exclusively on ‘arms’ or ‘weapons,’ meaning firearms when read in context.”).

¶20 To the extent Heller might be applied here, it supports the notion that the small fixed-blade knife found in Evans’s front pocket does not qualify as an arm under the Second Amendment. As noted above, Heller unremarkably observes that “firearms constitute [ ] arms,” but further defines “arms” in part as “ ‘[w] eapons of offence.’ ” Heller, 554 U.S. at 581 (first alteration in original) (quoting 1A Dictionary of the English Language, supra, at 106). As the Heller Court observed, “[T]he most natural reading of‘keep *867Arms’ in the Second Amendment is to ‘have weapons.’ ” Id. at 582.

¶21 Several state courts have applied Helled & analysis of handguns as “arms” in considering whether the right to bear arms extends to other objects ostensibly used for self-defense.7 Relevant here, the Connecticut Supreme Court used the Heller analysis to determine whether a dirk knife—a long, straight-bladed dagger—was a bearable arm protected under the federal constitution. State v. DeCiccio, 315 Conn. 79, 117, 105 A.3d 165 (2014). Specifically, the court considered the “military origins,” “history,” and “purpose” of the dirk knife, comparing the dirk knife at times to a bayonet or short sword.8 Id. at 119-24. The court noted that the history of dirk knives “is consistent with the American military usage of knives in general,” tracing the dagger from its 18th century Scottish origins through to the United States Marine Corps “Ka-Bar fighting knife” issued in World War II to the weapon in the case before them. Id. at 121-22. The court further concluded that dirk knives are not “ ‘dangerous and unusual’ ” weapons and that DeCic-cio’s dirk knife fell within the term “arms” under the Second Amendment. Id. at 128.

¶22 Oregon considered the text and history of its own state constitution’s article I, section 27 in order to determine the meaning of the term “arms.” See State v. *868Kessler, 289 Or. 359, 361-70, 614 P.2d 94 (1980). Washington’s article I, section 24 was drawn from Oregon’s article I, section 27 and the constitution proposed by W. Lair Hill. Robert F. Utter & Hugh Spitzer, The Washington State Constitution: A Reference Guide 39 (2002). Indeed, though we frequently decline to decide the parameters of the right guaranteed by our own article I, section 24, we have cited with approval to the Oregon Supreme Court’s interpretation of its analogous provision. See, e.g., State v. Rupe, 101 Wn.2d 664, 707, 683 P.2d 571 (1984) (plurality opinion) (citing Kessler, 289 Or. 359, with approval); Montana, 129 Wn.2d at 601 n.9 (citing State v. Delgado, 298 Or. 395, 400-01, 692 P.2d 610 (1984)).

¶23 The Oregon Supreme Court has interpreted article I, section 27 of the Oregon Constitution to protect objects as “arms” when the object is “a kind of weapon, as modified by its modern design and function, [which] is of the sort commonly used by individuals for personal defense during either the revolutionary and post-revolutionary era, or in 1859 when Oregon’s constitution was adopted.” Delgado, 298 Or. at 400-01 (emphasis added) (footnote omitted); State v. Christian, 354 Or. 22, 30, 307 P.3d 429 (2013) (citing Kessler, 289 Or. 359). The Oregon Supreme Court has applied this definition in considering whether a billy club, a switchblade knife, and a loaded firearm are constitutionally protected arms. Kessler, 289 Or. 359 (billy club); Delgado, 298 Or. 395 (switchblade knife); Christian, 354 Or. 22 (loaded firearm).

¶24 In Delgado, Oregon specifically applied the definition of “arms” discussed above in considering whether switchblade knives—a type of jackknife with a blade between four and seven inches that folds into the handle and is released by a spring mechanism—are arms under article I, section 27. 298 Or. at 402-03. In answering this question, the court conducted a thorough historical analysis of the use of “fighting knives” in America and concluded that certain knives, including switchblade knives, have been *869commonly used for self-defense. Id. at 400-03. The court then held that switchblades were arms under article I, section 27. Id. at 403.

B. Defining “arms”

¶25 We have never decided the parameters of the right to bear arms. See Rupe, 101 Wn.2d at 706-07 (“Although we do not decide the parameters of this right here, defendant’s behavior—possession of legal weapons—falls squarely within the confines of the right guaranteed by Const, art. 1 § 24.”); Montana, 129 Wn.2d at 591. That question is properly before us now.

¶26 We hold that the right to bear arms protects instruments that are designed as weapons traditionally or commonly used by law-abiding citizens for the lawful purpose of self-defense. In considering whether a weapon is an arm, we look to the historical origins and use of that weapon, noting that a weapon does not need to be designed for military use to be traditionally or commonly used for self-defense. We will also consider the weapon’s purpose and intended function.

¶27 Contrary to Evans’s assertions, this approach— which is rooted in the United States Supreme Court’s decision in Heller and the Oregon Supreme Court’s interpretation of its state constitution’s article I, section 27—is fully consistent with our opinion in Montana. In particular, Oregon’s focus on historical use and function supports the idea, expressed by the lead opinion in Montana and relied on by the concurring opinions thereto, that not all knives are “arms.” Montana, 129 Wn.2d at 590-91 (“Under even the broadest possible construction, the term ‘arms’ extends only to weapons designed as such, and not to every utensil, instrument, or thing which might be used to strike or injure another person.”). It is, in fact, this definitional approach that resulted in our holding that fixed-blade paring knives and small kitchen knives are not protected arms under the Washington State Constitution:

*870Notwithstanding my disagreement with the majority, I concur in the result it reaches here because I am satisfied that the knives possessed by McCullough and Montana are not arms. Although certain objects that could fall into the generic definition of a dangerous knife may well be considered arms, the knives possessed by McCullough and Montana (a small paring knife and a filleting knife) are not, in my opinion, either traditional or modern arms of self-defense. Therefore, they are not afforded protected status by article I, section 24 of the state constitution.

Id. at 601 & n.9 (Alexander, J., concurring) (citing Delgado, 298 Or. 395, for the proposition that “historically, certain knives, for example, bowie knives and swords, have been commonly used for self-defense and, therefore, may be considered arms under article I, section 27 of the Oregon Constitution”).9

¶28 Evans does not demonstrate that our opinión in Montana is incorrect or harmful or that the legal underpinnings of the decision have changed. A survey of the relevant case law suggests instead that Montana provides an appropriate framework for analyzing the right to bear arms that is both useful and true to the purpose of that right. Further, the opinion is consistent with Heller and the decisions of other courts post -Heller. We therefore reject Evans’s invitation to reconsider Montana.

IV. Evans’s Knife Is Not a Protected “Arm”

¶29 With this framework in mind, we turn to Evans’s as-applied challenge to SMC 12A. 14.080. Evans asserts that his knife is a constitutionally protected arm and that the ordinance’s prohibition against carrying fixed-blade knives is unconstitutional as applied to him. We hold that Evans cannot establish that SMC 12A. 14.080 is un*871constitutional as applied to him because his paring knife is not a constitutionally protected arm.

¶30 Evans does not attempt to establish that his paring knife is a weapon designed and traditionally used for self-defense. Indeed, he offers no meaningful distinction between his paring knife and the paring knife at issue in Montana. He instead argues that all fixed-blade knives are constitutionally protected arms following Heller and that his paring knife is thus protected because it is a fixed-blade knife. To make this argument, Evans relies on language in Heller asserting that the term “arms” encompasses “weapons that were not specifically designed for military use and were not employed in a military capacity.” Heller, 554 U.S. at 581. He is correct that the Second Amendment protects the right to possess weapons designed for personal protection as well as for use in a militia. Id. at 581, 592. But this cannot be understood to grant a right for citizens to possess anything that may plausibly be used for self-defense—the Second Amendment protects the right to carry a weapon for self-defense. Id.

¶31 Evans also relies on DeCiccio and Delgado to reinforce his argument that all fixed-blade knives are arms.10 Neither case supports that interpretation: both cases rely on an extensive historical and functional analysis of the specific knife at issue, and DeCiccio expressly limits its holding to “knives with characteristics of the dirk knife at issue in the present case.” DeCiccio, 315 Conn, at 128 n.34; Delgado, 298 Or. at 400-03. The lengthy historical analysis and specific limiting language of both opinions actually undermine Evans’s argument and reinforce our conclusion that some knives are not arms.

*872|32 Evans compounds this error by setting up a false equivalence between the dirk knife at issue in DeCiccio and the paring knife at issue in his own case. Highlighting the DeCiccio court’s holding that dirk knives are constitutionally protected arms because they are weapons designed for and historically used in battle, Evans points out a passage in American Knives suggesting that dirk knives are “equally useful for meals.” See Harold L. Peterson, American Knives: The First History and Collectors’ Guide 19 (1958). Evans then points out that kitchen knives are useful for meals—they are inarguably designed and generally used for culinary purposes. However, he also asserts that kitchen knives may be and have been used for self-defense. Thus, he reasons that both dirk knives and paring knives are constitutionally protected arms because both may be used for multiple purposes, including self-defense.

¶33 This reasoning ignores the origins, use, purpose, and function of both knives. It is true that some weapons may be used for culinary purposes, as it is also true that many culinary utensils may be used when necessary for self-defense; but it does not follow that all weapons are culinary utensils or that all culinary utensils are weapons. Were we to adopt Evans’s analysis and hold that a kitchen knife was a protected arm because it could be used for self-defense, there would be no end to the extent of utensils arguably constitutionally protected as arms. If a kitchen knife is a protected arm, what about a rolling pin, which might be effectively wielded for protection or attack? Or a frying pan? Or a heavy candlestick? “Admittedly, any hard object can be used as a weapon, but it would be absurd to give every knife, pitchfork, rake, brick or other object conceivably employable for personal defense constitutional protection as ‘arms.’ ” Montana, 129 Wn.2d at 591 n.2.

¶34 Both the federal and state constitutions require us to give protection to certain weapons that have been designed and commonly used for self-defense. Heller, 554 U.S. at 581-82; Kessler, 289 Or. at 368-69. The Connecticut *873Supreme Court persuasively holds that dirk knives satisfy these criteria and are constitutionally protected arms. However, the small knife found on Evans’s person is a utility tool, not a weapon. While almost any common object may be used as a weapon, that does not necessarily mean that possession of otherwise innocuous objects that could be wielded with malice will trigger the constitutional protections afforded to “arms.” See Montana, 129 Wn.2d at 590-91, 599 (Durham, C.J., concurring), 601 (Alexander, J., concurring). Evans does not demonstrate that his paring knife is a constitutionally protected arm. We therefore reject his as-applied challenge.

CONCLUSION

¶35 We affirm the Court of Appeals but on different grounds, holding that Evans’s paring knife is not an arm entitled to constitutional protection. Therefore, Evans cannot establish that SMC 12A. 14.080 is unconstitutional as applied to him and we affirm the decision of the Court of Appeals.