City of Seattle v. Montana

Alexander, J.

(concurring) — Although I concur in the result reached by the majority, I choose to write specially because I take issue with the majority opinion insofar as it leaves an impression that Seattle’s ordinance, which bans the carrying of certain kinds of knives, is a reasonable restriction on a citizen’s right "to bear arms in defense of himself,” as guaranteed by the Washington Constitution.8

It is my view that the majority incorrectly determines that the ordinance, Seattle Municipal Code 12A.14.080(B) (1987), which makes it "unlawful for a person knowingly to . . . [cjarry concealed or unconcealed on his/her person any dangerous knife,” 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. As the majority has noted, article I, section 24 is the provision in the state constitution that recognizes a citizen’s right "to bear arms in defense of himself, or the state.” In my judgment, there is much merit to the argument that the drafters of the state constitution intended, by those plain words, absolutely to protect a person’s right to carry arms for personal defense. Even assuming, though, that this constitutional right is not absolute as against the government’s police power, 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, as the majority indicates, a "reasonable regulation.” Majority op. at 593.

In short, I fail to see how the ordinance can be considered constitutional when it is applied so as to prohibit the *601carrying of "arms” for purposes of self-defense. Indeed, the majority opinion glosses over a seeming anomaly: the ordinance exempts from its scope the carrying of knives while engaged in hunting, fishing, the culinary arts, and other lawful occupations, activities not protected by the constitution, yet does not exempt from its scope the carrying of arms for the purpose recognized in the state constitution, self-defense.

Notwithstanding 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.9 Therefore, they are not afforded protected status by article I, section 24 of the state constitution.

Johnson and Madsen, JJ., concur with Alexander, J.

Reconsideration denied October 22, 1996.

I readily agree with the view expressed by Chief Justice Durham in her concurrence to this opinion to the effect that the majority should not have entered into speculation about the boundaries of regulation of the state constitutional right to bear arms in self-defense. The fact remains, however, that the bulk of the majority opinion addresses that issue. Therefore, I feel constrained to address it.

See State v. Delgado, 298 Or. 395, 692 P.2d 610 (1984) (where the Oregon Supreme Court set forth a detailed history of the "fighting knife” and concluded 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, which provides that “[t]he people shall have the right to bear arms for the defence [sic] of themselves, and the State”).