Litigation Highlight: Are Brass Knuckles Protected by the Second Amendment?

Most Second Amendment litigation dealing with the scope of protected “arms” involves particularly dangerous or deadly firearms, such as the AR-15 and other semiautomatic rifles.  The Michigan Court of Appeals, however, recently confronted the argument that a criminal defendant’s possession of brass knuckles was constitutionally protected.  In People v. Dummer, a unanimous panel found that brass knuckles are covered “arms” but that history and tradition support a criminal ban on their possession.

Michigan prohibits manufacturing, selling, or possessing “metallic knuckles.”  The statute doesn’t define the prohibited item, but brass knuckles “are generally known to be ‘a set of metal finger rings or guards attached to a transverse piece and worn over the front of the doubled fist for use as a weapon.’”

Frederick Dummer was charged with violating this statute, among other crimes, and mounted a facial constitutional challenge under both the federal Second Amendment and Michigan’s state constitutional analogue.  The judges noted that, “[a]s far as we can discern, no appellate court across the nation has decided this issue under either the federal or a state constitution.”  The panel started by clarifying that the defendant had mounted a facial challenge but only to the portion of the statute banning brass knuckles (the same Michigan law also restricts machine guns, silencers, and billy clubs, among other weapons).  Therefore, the defendant was required to show that the brass-knuckle ban is “incapable of any valid application.”  The court also collapsed the federal and state constitutional challenges into a single analysis—noting that, though the substantive opinion references only the federal Second Amendment, “our rationale equally applies to our state constitutional provision.”

At step one of Bruen, the court asked whether brass knuckles are constitutionally protected “arms.”  While noting that brass knuckles “can be used to either attack or thwart off an attacker,” the court also recognized that Supreme Court precedent generally provides that “protected ‘arms’ include only those weapons commonly used and possessed by law-abiding citizens for lawful purposes.”  The judges placed the “common use” inquiry at step one of Bruen because “it is at that point that the challenger must prove that the arm at issue is facially covered by the Amendment.”  However, the court viewed “common use” as separate from asking whether the relevant weapon is “dangerous and unusual”—finding that the latter inquiry “is more focused on the historical treatment of a weapon” and thus belongs at step two.  Therefore, the judges asked first whether the defendant could show that brass knuckles were in common use for lawful purposes.  They cited Caetano approvingly here for the proposition that state regulation is a relevant gauge of commonality.  The judges ultimately “infer[red] that because a small minority of states do not regulate the possession and use of metallic knuckles, they are commonly used for lawful purposes.” 

At step two, the court asked whether Michigan’s ban on brass knuckles is consistent with the country’s historical regulatory tradition.  Noting the ongoing debate over whether historical evidence from 1791 or 1868 should govern, the judges determined that later-in-time evidence from the Reconstruction era was relevant so long as it did not contradict earlier evidence from the Founding Era.  The court “discern[ed] that from approximately 1845 and onward metallic knuckles were associated not with law-abiding citizens who sought to use the weapon for self-defense, but with criminals and aggressors, and were considered by the courts and legislatures of the mid-to-late nineteenth century as dangerous and unusual.”  In support, the opinion cited state laws from the 1840s through the end of the 19th century, including “at least 14 state[] . . . bans on concealed carry of metallic knuckles” and other restrictions on possession for both adults and minors.  The court said these laws demonstrated that brass knuckles at the time “were mainly used by the criminal element” and “typically only found in the hands of thugs and murderers.”  Moreover, these laws were upheld in court and not contradicted by Founding Era evidence.  In fact, the restrictions were “consistent with colonial period laws that criminalized the public carrying of dangerous and unusual weapons, as that activity caused affrays and fear amongst the public.”  Thus, the court affirmed the lower court decision rejecting defendant’s facial challenge to the brass-knuckle ban.

The Dummer court’s treatment of “common use” is somewhat unusual.  The judges seemed to view the lack of a regulatory ban itself as evidence that a certain weapon is commonly used for lawful purposes in the relevant jurisdition.  But there may well be many weapons that are not banned but also not commonly used.  For example, just because a state does not ban the personal possession of a tank does not mean that tanks are commonly used for self-defense in that state.  The Dummer court is clear that it is taking a deferential, or “cautionary,” approach to common use.  Yet it still seems to place the burden of demonstrating common use on the defendant, and that should require more than simply showing that a minority of states do not ban brass knuckles—such as, for example, statistics about how many people actually own brass knuckles.[1]  As with the Ninth Circuit’s earlier decision in Teter v. Lopez striking down Hawaii’s butterfly-knife ban, the court seems to equate the possibility that a weapon might be used for lawful self-defense purposes (as almost any weapon might be) with proof that it is.[2]

The decision here also highlights interesting issues that arise when gun laws are challenged under both the federal constitution and state constitutional analogues to the Second Amendment.  First, while the court accepts with little analysis that the legal framework is the same for both the federal and state challenges, that isn’t always true—especially in states that specify a different test such as strict scrutiny for state constitutional challenges.  And, even if a court takes the approach used in Dummer and applies the Bruen test across the board, it is not clear to me that the test operates the same way in the state and federal contexts.  For example, Michigan’s state constitutional arms protection dates from 1835 and uses different language than the federal Second Amendment.  As I’ve addressed in other writing, the state constitutional challenge likely should only be informed by in-state historical evidence because other state regulatory traditions can’t shed light on the original intended meaning and scope of the Michigan constitution.  Thus, the court here should have focused on Michigan’s own 1887 concealed-carry ban and how brass knuckles were treated in the state between 1835 and 1887.  At the least, this is an area where Bruen introduces new complexity to what might otherwise be a more straightforward instance of constitutional lock-stepping.