Gongwer News Service
A Court of Appeals panel last week unanimously denied a Second Amendment challenge to the criminalization of possessing metallic knuckles, a first-of-its-kind ruling for appellate courts across the nation under federal or state constitutional challenges.
In a published opinion released last week written by Judge Christopher Murray, joined by Judge Mark Boonstra and Judge Thomas Cameron, the panel in People v. Dummer (COA Docket No. 369752) affirmed the Kent Circuit Court’s order to deny a motion to dismiss the case’s possession of metallic knuckles charge.
The defendant in the case was charged with, among other things, possession of the handheld weapons and moved the trial court to dismiss the charge. He argued that facially, and as individually applied to him, the statutory prohibition on metallic knuckles violated bot the Second Amendment of the U.S. Constitution, Article I Section 5 of the Michigan Constitution and the overall right for citizens to keep and bear arms.
A Kent judge denied the motion, holding that his argument failed because the defendant was not challenging the whole of the Michigan Penal Code’s modified weapons section, nullifying the facial challenge; because metallic knuckles are typically viewed as weapons used by criminals for improper, “dangerous and unusual” purposes; and because metallic knuckles were not primarily a self-defensive weapon.
Upon appeal, Murray wrote that Second Amendment challenges typically revolve around two questions: is the conduct at issued covered by the amendment and, if so, can the state regulate that conduct
consistent with the amendment?
“Here, that conduct is possession of metallic knuckles,” Murray wrote. “If the amendment does protect the challenged conduct, it is then the government’s burden to establish that the particular regulation
of that protected conduct is nonetheless permissible pursuant to our national historical tradition of weapon regulation.”
Several of aspects of that test fell in the defendant’s favor, Murray wrote, but Second Amendment jurisprudence over the years have boiled down to the fact that an “arm” protected by the amendment
includes only weapons commonly used and possessed by law-abiding citizens for lawful purposes.
That said, Murray wrote that neither party provided any evidence regarding the prevalence of metallic knuckles sold to the nationwide public or otherwise to prove whether they are commonly used for
self-defense or other lawful purposes.
“On this last point defendant has submitted statistical information from a website regarding how many states currently preclude the possession of metallic knuckles, how many regulate but do not ban their
possession, and how many states leave them unregulated. Accepting those representations as true, there are currently 21 other states with statutory prohibitions on possession of metallic knuckles identical – or very similar – to Michigan’s, while another 17 have myriad regulations on the possession and use of metallic knuckles,” Murray wrote. “The remaining 12 states do not regulate metallic knuckles. These numbers, again accepting their accuracy, show that just shy of a majority of states currently regulate the possession of these weapons, and a small minority have no regulation. While these numbers do not tell us much about how commonly they are used in today’s America, we will err on the side of caution.”
Under that line of thinking, the court held that the defendant’s conduct of bearing metallic knuckles was an activity covered by the plain text of the Second Amendment and was presumptively a
constitutionally protected activity.
But the analysis did not end there, as a showing that the possession of metallic knuckles was a protected act puts the burden on the government to show that its prohibition was rooted in historical
tradition and constitutionally permissible.
The prosecution in the case cited court precedent related to the regulation of metallic knuckles dating back to 1871 to 1921 from four states; another five state statutes banning them from 1872 to 2007;
and one scenario of a sate strictly prohibiting their use.
The longtime association of metallic knuckles with non-law-abiding citizens and criminal aggressors was also considered by the courts and various legislatures that put those prohibitions in place.
Murray wrote that Michigan’s own Supreme Court recognized that the Legislature made that distinction when it enacted the very act that Dummer was trying to challenge.
“Indeed, as far as we can discern, states began regulating (including banning) metallic knuckles in the 1840s, and continued to do so on a more frequent basis into the late 1800s,” Murray wrote. “These regulations entailed anything from total bans to limits on concealed carry, but importantly for our purposes, these state statutes reveal that these mid-to-late nineteenth century policymakers treated metallic knuckles as weapons that were unusual and dangerous, not used for self-defense of any kind, and typically only found in the hands of thugs and murderers.”
Murray added that the panel was not presented with nor had it found any statute or case law to consider metallic knuckles as anything other than a dangerous and unusual weapon possessed by individuals engaged in some sort of illegal activity.
“Indeed, these laws are 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. This can be seen in the laws and cases cited by Heller itself,” Murray wrote. “More to the point, these laws and the decisions interpreting them set out a guiding historic principle that appears uniform amongst a majority of States: brass knuckles are dangerous and unusual weapons that have not, from 1791 through the post-Civil War era, played a role in the defense of self or others.”
With that analysis in mind, the panel concluded that Dummer’s facial challenge to Michigan’s statute banning metallic knuckles failed.
“This holds true because there is an application of the statute that is constitutional under the Second Amendment: MCL 750.224(1)(d)’s ban on the possession of metallic knuckles falls within the historical tradition of prohibiting the concealed carry of metallic knuckles as a dangerous and unusual weapon,” Murray wrote. “Certainly, possession under MCL 750.224(1)(d) includes concealed carry, and the history outlined above reflects a significant historic tradition of states banning that activity. As a result, the defendant cannot prevail on his facial challenge, because the statute is not unconstitutional in all applications.”
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