State v. DeCiccio ( 2014 )

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STATE OF CONNECTICUT v. JASON
WILLIAM DECICCIO
(SC 19104)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Vertefeuille, Js.
Argued October 23, 2013—officially released December 23, 2014
Michael Zariphes, assigned counsel, for the appel-
lant (defendant).
Nancy L. Walker, special deputy assistant state’s
attorney, with whom, on the brief, was Brian Kennedy,
senior assistant state’s attorney, for the appellee (state).
Opinion
PALMER, J. The defendant, Jason William DeCiccio,
has an extensive weapons collection that includes a
dirk knife and a police baton. A jury found him guilty
of two counts of having a weapon in a motor vehicle,
in violation of General Statutes (Rev. to 2009) § 29-38
(a),1 for using his Jeep Cherokee (Jeep) to transport
those items from his former residence in Connecticut
to his new residence in Massachusetts. The defendant
appeals from the judgment of conviction, rendered by
the trial court in accordance with the jury’s verdict,
contending, inter alia, that § 29-38 is unconstitutional
as applied to his conduct in the present case. Specifi-
cally, he claims that § 29-38: (1) is impermissibly vague
because the terms ‘‘dirk knife’’ and ‘‘police baton’’ are
not defined with sufficient clarity; and (2) violates the
second amendment to the United States constitution
insofar as it precluded him from using a vehicle to
transport those weapons for the purpose of moving
from one residence to another. We conclude that § 29-
38 is not unconstitutionally vague as applied to the facts
of this case. We also conclude, however, first, that the
possession of a dirk knife and a police baton in a per-
son’s home is protected by the second amendment and,
second, that our statutory scheme, which categorically
bars the transportation of those weapons by motor vehi-
cle from a former residence to a new residence, imper-
missibly infringes on that constitutional right. Because
the state acknowledges that the jury found that the
defendant was transporting those weapons between
residences when the police discovered them in his vehi-
cle, his conviction cannot stand. Accordingly, we
reverse the judgment of the trial court.
The record reveals the following facts, which the jury
reasonably could have found, and procedural history. In
2010, the United States Veterans Health Administration
hired the defendant, a member of the United States
Army and the Army National Guard who had served
overseas in numerous locations and capacities, to work
as a medical claims processor at a Veterans Administra-
tion (VA) hospital in Massachusetts. On July 22, 2010,
the defendant was in the process of moving his belong-
ings from his residence at his mother’s home in the
town of Clinton to his new residence, a room in a private
home in Bolton, Massachusetts, that he had rented.
While driving on West Main Street in Clinton, at approxi-
mately 4:30 p.m., the defendant’s Jeep struck another
sport utility vehicle that was stopped at a traffic light,
causing that vehicle to strike the vehicle in front of it.
The defendant then reversed his Jeep and drove into a
parking lot located across the street from the accident
scene. After emergency personnel arrived, the defen-
dant, who could not recall his own name, informed
police that he had suffered a head injury, and he
appeared disoriented and combative.2 The defendant
was subsequently transported by ambulance to Yale-
New Haven Hospital (hospital), where he was admitted
and treated for head injuries and post-traumatic
stress disorder.
While assessing the damage to the defendant’s Jeep,
Gregory Matakaetis, a Clinton police officer who had
responded to the accident, observed two machete
knives in plain view in the back seat of the Jeep. Mata-
kaetis also discovered an expandable police baton, a
belt clip holder for the baton, a sword and holder, a large
knife with a brass knuckle handle that had a depiction of
a dragon on it (dragon knife), and a dirk knife. Mata-
kaetis found a military dog tag, lead weights, and a
black ‘‘duty bag’’ in the Jeep, as well. The defendant
had kept all of these items as mementos of his military
service overseas in Afghanistan, Germany, and Kosovo,
and was in the process of moving them to his new
residence in Massachusetts when he was involved in
the automobile accident.
Following his release from the hospital, the state
charged the defendant in a substitute information with
six counts of having a weapon in a motor vehicle in
violation of § 29-38 (a). Each count alleged the unlawful
possession of one of the seized items, specifically, the
police baton, the two machete knives, the dirk knife,
the sword, and the dragon knife. The case was tried to
a jury, which found the defendant guilty of unlawfully
having the police baton and the dirk knife in his vehicle,
and not guilty with respect to the other four counts.3
The trial court rendered a judgment of conviction in
accordance with the jury’s verdict and sentenced the
defendant to a total effective sentence of three years
imprisonment, execution suspended after fifteen
months, and three years probation with special condi-
tions. The trial court subsequently denied the defen-
dant’s postverdict motion for a judgment of acquittal,
rejecting his claims that § 29-38 is unconstitutionally
vague as applied and violates the second amendment.
This appeal followed.4
On appeal, the defendant claims that § 29-38 is uncon-
stitutionally vague as applied to the facts of the present
case because he had inadequate notice that the weapons
that formed the basis of his conviction fall within the
proscription of that statutory provision. The defendant
also contends that, as applied to his conduct, § 29-38
contravenes his second amendment right to bear arms
because it afforded him no lawful means of transporting
his dirk knife and police baton to his new residence,
thereby effectively precluding him from possessing
those weapons at his new residence. We reject the
defendant’s claim that § 29-38 is unconstitutionally
vague. We agree, however, first, that the second amend-
ment protects the defendant’s right to possess the dirk
knife and police baton in his home and, second, that
the statute’s complete ban on transporting those items
between residences unduly burdens that right.5 The
defendant’s conviction, therefore, must be reversed.6
I
WHETHER § 29-38 IS UNCONSTITUTIONALLY
VAGUE AS APPLIED
We begin with the defendant’s contention that § 29-
38 is unconstitutionally vague as applied, first, because
the terms ‘‘dirk knife’’ and ‘‘police baton,’’ which are not
statutorily defined, do not otherwise have a sufficiently
clear or definite meaning and, second, because § 29-38
is impermissibly ambiguous as to whether the moving
exception of § 29-38 (b) (5) (D), which does not
expressly include within its terms dirk knives and police
batons, nevertheless extends to those items. We are not
persuaded by either of the defendant’s vagueness
arguments.
Before addressing the merits of the defendant’s
claims, we set forth the legal principles applicable to
those claims. ‘‘The determination of whether a statutory
provision is unconstitutionally vague is a question of
law over which we exercise de novo review. . . . In
undertaking such review, we are mindful that [a] statute
is not void for vagueness unless it clearly and unequivo-
cally is unconstitutional, making every presumption in
favor of its validity. . . . To demonstrate that [a stat-
ute] is unconstitutionally vague as applied to him, the
[defendant] therefore must . . . demonstrate beyond
a reasonable doubt that [he] had inadequate notice of
what was prohibited or that [he was] the victim of
arbitrary and discriminatory enforcement. . . . [T]he
void for vagueness doctrine embodies two central pre-
cepts: the right to fair warning of the effect of a govern-
ing statute . . . and the guarantee against standardless
law enforcement. . . . If the meaning of a statute can
be fairly ascertained a statute will not be void for
vagueness since [m]any statutes will have some inher-
ent vagueness, for [i]n most English words and phrases
there lurk uncertainties.’’ (Citation omitted; internal
quotation marks omitted.) State v. Winot, 294 Conn. 753,
758–59, 988 A.2d 188 (2010). Moreover, an ambiguous
statute will be saved from unconstitutional vagueness if
the core meaning of the terms at issue may be elucidated
from other sources, including other ‘‘statutes, published
or unpublished court opinions in this state or from other
jurisdictions, newspaper reports, television programs
or other public information . . . .’’ State v. Scruggs,
279 Conn. 698, 719, 905 A.2d 24 (2006).
Finally, even though a statutory term that is suscepti-
ble to a number of differing interpretations may be
impermissibly vague as applied to some situations, the
term is not necessarily vague as applied in all cases;
rather, whether the statute suffers from unconstitu-
tional vagueness is a case-specific question, the resolu-
tion of which depends on the particular facts involved.
See, e.g., State ex rel. Gregan v. Koczur, 287 Conn. 145,
156–57, 947 A.2d 282 (2008). Similarly, a term is not
void for vagueness merely because it is not expressly
defined in the relevant statutory scheme. State v. Jacob,
69 Conn. App. 666, 674, 798 A.2d 974 (2002). Thus, we
must analyze the language and purpose of § 29-38 (a)
to determine if it has a reasonably ascertainable, core
meaning such that, as applied to the defendant’s posses-
sion of the weapons at issue in the present case, he
had fair notice that those weapons fall within the pro-
scription of that statutory provision. See, e.g., State v.
Wilchinski, 242 Conn. 211, 221–23, 700 A.2d 1 (1997).
A
Whether the Statutory Terms ‘‘Dirk Knife’’ and ‘‘Police
Baton’’ Are Unconstitutionally Vague
We begin with the defendant’s claim that § 29-38 is
unconstitutionally vague because the terms ‘‘dirk knife’’
and ‘‘police baton’’ are not statutorily defined and their
meaning is not otherwise sufficiently clear or definite
to satisfy the requirement of fair notice. To resolve
this claim, we must determine whether the process of
statutory interpretation reveals a core meaning for
those terms such that a person of ordinary intelligence
would be able to understand what class or type of
weapon the legislature intended to ban by its prohibi-
tion against having a dirk knife or a police baton in a
motor vehicle. In performing this task, we first consider
the language of § 29-38 (a), which provides in relevant
part: ‘‘Any person who knowingly has, in any vehicle
owned, operated or occupied by such person, any
weapon . . . shall be fined not more than one thou-
sand dollars or imprisoned not more than five years or
both, and the presence of any such weapon . . . in any
vehicle shall be prima facie evidence of a violation of
this section by the owner, operator and each occupant
thereof. . . .’’ For purposes of § 29-38 (a), the word
‘‘weapon’’ includes ‘‘any police baton or nightstick’’ and
‘‘any dirk knife . . . .’’ Because it is apparent that the
language of § 29-38 provides no ready answer to the
constitutional question raised by the defendant’s claim,
we must use other available tools of statutory construc-
tion to resolve that claim.
1
Dirk Knife
We first address the defendant’s contention that the
term ‘‘dirk knife’’ is unconstitutionally vague and, as a
result, § 29-38 ‘‘impermissibly delegates the resolution
of the definition of [the term] to be determined by
[police officers], judges and juries on [an] ad hoc and
subjective basis.’’ By way of illustration, the defendant
notes that, in contrast to Connecticut’s statutory
scheme, which contains no definition of the term, Cali-
fornia has enacted legislation that expressly defines the
term ‘‘dirk’’; Cal. Penal Code § 16470 (Deering 2012);7
an action by the California legislature that remedied
flaws identified by court decisions applying previous
versions of the California statute. The defendant also
maintains that there is ambiguity in the word ‘‘dirk’’
because, although common usage treats the terms
‘‘dirk’’ and ‘‘dagger’’ as synonyms, the technical meaning
of the term, as explicated by various cutlery treatises,
demonstrates that a dirk is not necessarily a dagger,
but may also be a knife with a single-edged blade. In
this regard, the defendant also asserts that numerous
dictionary definitions of the term ‘‘dirk’’ do not specifi-
cally identify a dirk as a double-edged knife. The state
contends that the meaning of the term ‘‘dirk knife,’’
namely, a knife designed primarily for stabbing and
featuring a sharp tapered blade, is readily accessible
from numerous online and print sources, including sis-
ter state case law. See, e.g., Summerall v. State, 41 So.
3d 729, 736–37 (Miss. App. 2010); In re Jesse QQ., 243
App. Div. 2d 788, 789–90, 662 N.Y.S.2d 851, appeal
denied, 91 N.Y.2d 804, 691 N.E.2d 631, 668 N.Y.S.2d 559(1997). We agree with the state that, as applied to the
present case, § 29-38 is not void for vagueness with
respect to the term ‘‘dirk knife’’ because the core mean-
ing of that term includes a knife, like the knife seized
from the defendant’s vehicle, that is designed primarily
for stabbing purposes, rather than for utilitarian pur-
poses, and that has a blade with sharpened edges and
a narrowed or tapered point, as well as a handle with
guards intended to facilitate the act of stabbing or
thrusting.
We commence our analysis of the defendant’s claim
with a description of the knife at issue, which is com-
prised of a black handle and a metal blade. The handle
is four and one-half inches long and one inch wide, and
terminates with a two inch guard. The dagger like blade
of the knife, both edges of which are sharpened, is
approximately one and one-half inches wide and five
and one-half inches long. A distinctive feature of the
knife is that, two and one-half inches from the hilt, the
blade forks into two distinct parallel prongs with a
small space between them that taper to independent
sharp points.
We turn next to the term ‘‘dirk knife.’’ Because Gen-
eral Statutes § 1-1 requires us to construe statutory
words and phrases ‘‘according to the commonly
approved usage of the language,’’ we look to the diction-
ary to determine the commonly understood meaning
of the term. E.g., Sams v. Dept. of Environmental Pro-
tection, 308 Conn. 359, 404, 63 A.3d 953 (2013). Consis-
tent with the definition that the defendant posits in his
brief, a dictionary that this court often uses in accor-
dance with § 1-1 defines ‘‘dirk’’ as ‘‘a long straight-
bladed dagger . . . .’’ Merriam-Webster’s Collegiate
Dictionary (11th Ed. 2003) p. 354. ‘‘Dagger,’’ in turn, is
defined in relevant part as ‘‘a sharp pointed knife for
stabbing . . . .’’ Id., p. 313. Similarly, another oft-cited
dictionary defines ‘‘dirk’’ as ‘‘[a] dagger’’; American Her-
itage Dictionary of the English Language (5th Ed. 2011)
p. 512; and the word ‘‘dagger’’ is defined in relevant
part as ‘‘[a] short pointed weapon with sharp edges.
. . .’’ Id., p. 456.
Because, for present purposes, these dictionary defi-
nitions of the term ‘‘dirk’’ are not entirely elucidating,
we turn to extrinsic evidence of the intended meaning
of the term. Although there is no recorded legislative
history providing direct insight into the legislature’s
contemplation of the meaning of the term ‘‘dirk,’’ it
bears noting that the legislature added it to the statutory
scheme in 1953 with the enactment of Public Acts 1953,
No. 205, §§ 1 and 2, which amended the dangerous
weapons statutes, now codified at § 29-38 (a) and Gen-
eral Statutes § 53-206 (a),8 by expanding the definition
of the term ‘‘weapon’’ to include ‘‘any dirk knife or
switch knife or any knife having an automatic spring
release device by which a blade is released from the
handle, having a blade of over one and a half inches in
length . . . .’’ The scant legislative history accompa-
nying the enactment of that public act reflects the fact
that the legislature was concerned with a proliferation
of stabbings caused by dangerous knives, particularly
those with long blades and switchblades. See 5 S. Proc.,
Pt. 3, 1953 Sess., pp. 1073–75, remarks of Senators
Joseph S. Longo and Patrick J. Ward.
The case law of other states invariably construes the
term ‘‘dirk knife’’ in statutes similar to § 29-38 as a knife
designed or primarily intended for use as a stabbing
weapon. For example, in Summerall v. State, supra, 41
So. 3d 729, the Mississippi Court of Appeals engaged
in an extensive discussion of the meaning of the term
and concluded that, ‘‘to qualify as a dirk knife, the
weapon must . . . be designed primarily for use as a
stabbing weapon,’’ and, to that end, it also must ‘‘have
a blade with at least one sharpened edge which tapers
to a point . . . .’’ Id., 737. In adopting this definition,
the court in Summerall was persuaded by the analysis
undertaken by the Appellate Division of the New York
Supreme Court in In re Jesse QQ., supra, 243 App.
Div. 2d 788, which had reached the same conclusion
regarding the meaning of the term ‘‘dirk.’’ Id., 789
(explaining that ‘‘test for a dirk is whether the instru-
ment has a blade with at least one sharpened edge [that]
tapers to a point and is primarily intended for use as
a stabbing weapon’’).
Statutory provisions and case law from other states,
as well as reference treatises on cutlery, are generally
consistent with Summerall and In re Jesse QQ. See,
e.g., Cal. Penal Code § 16470 (Deering 2012) (‘‘[a]s used
in this part, ‘dirk’ or ‘dagger’ means a knife or other
instrument with or without a handguard that is capable
of ready use as a stabbing weapon that may inflict great
bodily injury or death’’); State v. Walthour, 876 So. 2d
594, 597 (Fla. App. 2004) (‘‘ ‘Dirk’ and ‘dagger’ are used
synonymously, and consist of any straight stabbing
weapon. The test is its capacity for use [as] a stabbing
weapon.’’); Commonwealth v. Miller, 22 Mass. App. 694,
697, 497 N.E.2d 29 (1986) (concluding that five inch by
one and one-half inch, single-edged asymmetrical blade
in folded knife was not ‘‘enough like a dirk to be pro-
scribed’’ by state’s dangerous weapons statute, but not-
ing that characteristics, such as ‘‘a blade tapering to a
sharpened tip, may indicate that the knife in question,
though shorter than a normal dirk, was indeed designed
for stabbing’’); Knight v. State, 116 Nev. 140, 145–47,
993 P.2d 67 (2000) (‘‘a dirk appears to be simply a type
of dagger,’’ which is ‘‘a short weapon used for thrusting
and stabbing,’’ and ‘‘[r]elevant factors to consider when
determining whether a knife is a dirk or dagger include
whether the knife has handguards and a blade that locks
in place’’ [internal quotation marks omitted]); State v.
McJunkins, 171 Or. App. 575, 579, 15 P.3d 1010 (2000)
(skinning knife was not ‘‘dirk’’ or ‘‘dagger’’ under Ore-
gon’s concealed weapons statute because dirk is type
of dagger, which is defined as knife that ‘‘is generally
slender, straight, and coming to a point,’’ and its ‘‘func-
tion is to stab, historically to pierce armor,’’ and there
was no evidence that skinning knife ‘‘was designed for
stabbing’’); see also E. Janes, The Story of Knives (1968)
pp. 55, 67 (noting that original Scottish dirks had large,
single-edged, straight blades but that subsequent dag-
gers were cut down from old swords, with double-edged
dirk used in early nineteenth century becoming ‘‘in fact,
a short sword’’); H. Peterson, American Knives: The
First History and Collectors’ Guide (1958) pp. 95–101
(describing ‘‘naval dirk’’ as ‘‘[t]he most colorful of all
the naval knives’’ and ‘‘[a] companion to and substitute
for the sword,’’ with blade shape that evolved during
nineteenth century from straight and double-edged to
curved and then back to straight, and noting that dirks
featured large handles separated from blade by promi-
nent guards, or quillons).
In contrast to Summerall and In re Jesse QQ., Virginia
courts have indicated that a knife does not fall within
the meaning of the term ‘‘dirk’’ unless both edges of its
blade are sharpened. See Thompson v. Commonwealth,
277 Va. 280, 290–91, 673 S.E.2d 469 (2009) (butterfly
knife with four inch blade and one-edged blade is not
weapon of ‘‘like kind’’ to dirk because ‘‘[w]ithout two
sharp edges and a protective guard . . . the butterfly
knife is not designed for stabbing purposes like a dagger
. . . but rather for cutting purposes’’); McMillan v.
Commonwealth, 55 Va. App. 392, 399, 686 S.E.2d 525(2009) (concluding that knife at issue ‘‘does not fit the
definition of a dirk, described as any stabbing weapon
having two sharp edges and a point’’); Richards v. Com-
monwealth, 18 Va. App. 242, 246 n.2, 443 S.E.2d 177(1994) (explaining that ‘‘usual meaning’’ of ‘‘ ‘dirk’ or
weapon of like kind is any stabbing weapon having
two sharp edges and a point, including daggers, short
swords and stilettos’’). For purposes of the present case,
however, we need not decide whether a knife with only
one sharpened edge may constitute a dirk because the
knife seized from the defendant’s vehicle has two sharp-
ened edges.
We therefore conclude that § 29-38 is not void for
vagueness as applied to the defendant because the core
meaning of the term ‘‘dirk knife’’ may be ascertained
from case law in other states and available print refer-
ence materials on cutlery. The authorities to which we
have cited make clear that, whatever else the term
‘‘dirk’’ may describe, at the very least, it applies to a
knife that is designed primarily for stabbing purposes,
rather than utilitarian purposes, has a blade with sharp-
ened edges that tapers to a point, and has a handle
with guards intended to facilitate the act of stabbing
or thrusting. See, e.g., Knight v. State, supra, 116 Nev.
146; cf. N. Strung, An Encyclopedia of Knives (1976) p.
94. Accordingly, although we acknowledge the possibil-
ity that the statutory reference to dirk knives might be
vague as applied to some knives, we are satisfied that
a person of ordinary intelligence would be on notice
that a knife that has all of the foregoing characteristics
falls within the statute’s ‘‘unmistakable core of prohib-
ited conduct . . . .’’ (Internal quotation marks omit-
ted.) State ex rel. Gregan v. Koczur, supra, 287 Conn.
156; see also id., 156–57 (‘‘[a] defendant whose conduct
clearly comes within a statute’s unmistakable core of
prohibited conduct may not challenge the statute
because it is vague as applied to some hypothetical
situation’’ [internal quotation marks omitted]). Further-
more, this definition is consistent with the general pur-
pose of §§ 29-38 and 53-206, namely, to prohibit the
carrying of knives that are primarily designed as stab-
bing weapons, and not for some other legitimate pur-
pose. Because the defendant does not contend that the
state failed to establish that the knife at issue in the
present case had all of the characteristics that we have
identified or that the evidence was otherwise insuffi-
cient, we now turn to his claim with respect to the
police baton.
2
Police Baton
The defendant contends that he reasonably could not
have known that the metal instrument that he carried
in his Jeep and for which he was prosecuted, which
is approximately one and one-half feet in length and
consists of a ten inch long handle that connects to a
telescoping metal rod, approximately one-half inch in
diameter, which terminates with a semicircle metal
bulb, is an expandable police baton within the meaning
of § 29-38 (a). The defendant argues that the term is
unconstitutionally vague because ‘‘an ordinary diction-
ary fails to even give a definition of a police baton.’’9
The state disputes the defendant’s vagueness claim,
relying on images obtained from the Internet that the
state characterizes as ‘‘nearly identical’’ to the item
seized from the defendant’s Jeep, as well as dictionary
definitions for the terms ‘‘baton’’ and the related ‘‘billy
club.’’ We agree with the state that the statute’s ban on
having a police baton in a vehicle is not void for
vagueness as applied to the defendant in the present
case.
Merriam-Webster’s Collegiate Dictionary defines the
word ‘‘baton’’ in relevant part as: ‘‘1. Cudgel, truncheon;
specif[ically]: billy club . . . .’’10 (Emphasis omitted.)
Merriam-Webster’s Collegiate Dictionary, supra, p. 103.
A ‘‘billy club’’ is defined as ‘‘a heavy, usu[ally] wooden
club; specif[ically]: a police officer’s club . . . .’’
(Emphasis omitted.) Id., p. 122; see also id., p. 303
(defining ‘‘cudgel’’ as ‘‘a short heavy club’’); id., p. 1343
(defining ‘‘truncheon’’ as obsolete term for ‘‘club’’ and
‘‘bludgeon,’’ and as ‘‘baton’’ or ‘‘a police officer’s billy
club’’). We also note that the related term ‘‘nightstick,’’
which is used in § 29-38 (a) along with ‘‘police baton,’’
is defined synonymously as ‘‘a police officer’s club
. . . .’’ Id., p. 837. Although the dictionary definition of
‘‘baton’’ indicates that the term is commonly or fre-
quently used to refer to an instrumentality made of
wood, there is nothing in that definition that excludes
such an instrumentality from its purview solely because
it is made of something else. We therefore turn to extra-
textual sources to ascertain whether the expandable
metal instrument seized from the defendant’s vehicle
is a police baton.
The legislative history of § 29-38 is silent as to the
specific type of instruments that the legislature envi-
sioned would fall within the definition of police baton
or nightstick.11 Statutes should be construed, however,
to effectuate the legislature’s intent, consistent with the
ordinary meaning of the words used, as technologies
evolve. See, e.g., Rutledge v. State, 745 So. 2d 912, 916
(Ala. Crim. App. 1999) (observing that ‘‘it is impossible
for the [l]egislature to consider every societal and tech-
nological change that may occur and the effect those
changes may have [on] the particular conduct it is seek-
ing to regulate’’). Thus, changes in technology will not
render statutes void for vagueness when the intent of
the legislature remains clear. See, e.g., State v. Weeks,
761 A.2d 44, 46–47 (Me. 2000) (statute not unconstitu-
tionally vague as applied to computer files because
statute ‘‘prohibiting the dissemination of videotapes,
motion pictures, slides, and negatives depicting child
pornography . . . clearly reaches the dissemination of
stored images as well as finished pictures’’). It is signifi-
cant, then, that the technology of police batons and
nightsticks has evolved from wooden nightsticks to
include the widespread use of expandable metal batons
in law enforcement agencies nationwide. Police depart-
ments adopting the use of expandable metal batons,
which are also referred to as collapsible batons, have
done so because they are intermediate force devices
that, when appropriately used, are unlikely to cause
death or serious bodily injury, more comfortable for
officers to wear and carry, and more easily accessible
than conventional fixed batons. See, e.g., Federal Law
Enforcement Training Center, United States Marshals
Service, ‘‘The Expandable Baton (1997)’’ (training
video), available at https://archive.org/details/gov.
ntis.ava20437vnb1 (last visited November 28, 2014); D.
Young, ‘‘Where Have All the Batons Gone?’’
PoliceOne.com (April 1, 2005), available at http://
www.policeone.com/police-products/less-lethal/
batons/articles/99726/ (last visited November 28, 2014);
‘‘Los Angeles: Commission OKs Use of Expandable
Batons,’’ L.A. Times, March 30, 1995, available at http://
articles.latimes.com/1995-03-30/local/me-48897_1_
expandable-baton (last visited November 28, 2014).
Furthermore, as the state notes, readily available
descriptions and images of expandable batons are strik-
ingly similar to the baton that the defendant in the
present case possessed, a fact that supports the conclu-
sion that a person of ordinary intelligence would or
reasonably should be aware that possessing such an
item in a motor vehicle violates § 29-38. See, e.g., Galls:
The Authority in Public Safety Equipment and Apparel
(online catalog displaying numerous models of expand-
able batons), available at http://www.galls.com/
expandable-batons (last visited November 28, 2014);
see also California Dept. of Consumer Affairs, Bureau
of Security and Investigative Services, ‘‘Baton Training
Manual: Student Text’’ (March, 2006) p. 13 (describing
characteristics of straight, expandable baton), available
at http://www.bsis.ca.gov/forms_pubs/bat_stuman.pdf
(last visited November 28, 2014). Indeed, it would be
unreasonable, and incompatible with the statute’s obvi-
ous public safety purpose, to conclude that § 29-38 can-
not be read as encompassing expandable metal batons,
particularly in view of the fact that these devices—like
other weapons subject to the statute, such as dirks,
stilettos, and certain martial arts weapons—may readily
be reduced to an easily concealable size.
Finally, a construction of the term ‘‘police baton’’ as
including metal expandable batons is consistent with
the case law of other jurisdictions. See Shahit v. Tosqui,
United States District Court, Docket No. 04-71538 (E.D.
Mich. June 1, 2005) (noting that ‘‘extendable baton fits
comfortably within the dictionary definitions of’’ terms
‘‘billy’’ and ‘‘bludgeon,’’ which are not defined by Michi-
gan criminal statutes), aff’d, 192 Fed. Appx. 382 (6th
Cir. 2006); People v. Patrick, California Court of Appeal,
Docket No. C067982 (Cal. App. July 31, 2012) (rejecting
defendant’s reliance on dictionary definitions indicating
that ‘‘billy’’ is or usually is made from wood in conclud-
ing that metal expandable baton was ‘‘billy’’ within
meaning of statute), review denied, California Supreme
Court, Docket No. S205337 (Cal. November 14, 2012);
People v. Mercer, 42 Cal. App. 4th Supp. 1, 4–5, 49 Cal.
Rptr. 2d 728 (App. Dept. Super. 1995) (concluding that
possession of collapsible baton violated statute prohib-
iting possession of ‘‘ ‘any instrument or weapon of the
kind commonly known as a blackjack, slungshot, billy,
sandclub, sap, or sandbag’ ’’ because dictionary defini-
tion of ‘‘billy’’ encompasses club carried by police offi-
cer). But see People v. Phillips, New York County Court,
Docket No. 2005-034 (N.Y. County April 1, 2005) (follow-
ing People v. Talbert, 107 App. Div. 2d 842, 844, 484
N.Y.S.2d 680 [1985], which held that ‘‘the term ‘billy’
must be strictly interpreted to mean a heavy wooden
stick with a handle grip [that], from its appearance, is
designed to be used to strike an individual and not
for other lawful purposes,’’ in concluding that metal
collapsible baton is not ‘‘billy’’ prohibited by New York
statute proscribing criminal possession of weapon).
Accordingly, we agree with the state that § 29-38 is
not unconstitutionally vague as applied to expandable
metal police batons.12
B
Whether § 29-38 Is Unconstitutionally Vague
with Respect to the Application of
the Moving Exception in
§ 29-38 (b) (5) (D)
The defendant next claims that § 29-38 is void for
vagueness in the absence of a ‘‘clarification [of] the
moving exception’’ contained in § 29-38 (b) (5) (D). The
defendant, who characterizes the existing statute as
‘‘clearly susceptible to arbitrary and discriminatory
enforcement,’’ claims that we should place a judicial
gloss on the moving exception of § 29-38 (b) (5) (D)
and extend that exception to dirk knives and police
batons. In support of this contention, the defendant
maintains that we should follow our interpretation of
the nearly identically worded § 53-206 (b) (3) (D)13 in
State v. Campbell, 300 Conn. 368, 13 A.3d 661 (2011),
in which we read a similar exception into that statutory
provision to avoid a construction of the provision that
would have rendered it unworkable under certain cir-
cumstances. See id., 379–80. He contends that this judi-
cial gloss is necessary because, ‘‘when reading [§ 29-
38] as a whole and considering the exceptions set forth
in [sub]section (b) of the statute, a person of ordinary
intelligence such as [himself], who was also a member
of the armed forces of this state (Army National Guard),
could not and would not reasonably conclude that he
would be prohibited from . . . transporting such
weapons as those [at issue in the present case] while
moving them from his former residence to his new res-
idence.’’
The defendant’s claim is belied by the plain language
of § 29-38. Subsection (a) of § 29-38 prohibits certain
conduct, including, of course, the vehicular transporta-
tion of dirk knives and police batons, and subsection
(b), which is comprised of numerous subdivisions and
subparagraphs that operate as affirmative defenses to
be pleaded and proven by the defendant,14 contains
no language that even arguably would authorize the
defendant’s transportation of a dirk knife or a police
baton. Indeed, § 29-38 (b) does provide for certain
exceptions to the general prohibition against having a
dirk knife or a police baton in a vehicle. For example,
under § 29-38 (b) (2), a security guard may have a police
baton in a vehicle while engaged in the pursuit of his
official duties, and § 29-38 (b) (5) permits the transpor-
tation of knives, the edged portion of which is four
inches or more in length, in a vehicle under certain
enumerated circumstances. The defendant has identi-
fied no such exception, however, that might be con-
strued as permitting his transportation of a dirk knife
or police baton in his vehicle. Consequently, there is
nothing in the statutory language to support the con-
tention that it is unclear whether the defendant’s con-
duct in the present case was exempt from prosecution
under § 29-38 (b).
The defendant’s reliance on State v. Campbell, supra,300 Conn. 368, in which we construed § 53-206, the
related and nearly identical statute prohibiting the car-
rying of dangerous weapons, is misplaced. In fact,
Campbell undermines the defendant’s claim. In Camp-
bell, the defendant, Andre Campbell, was convicted
under § 53-206 (a) of carrying a dangerous weapon, in
particular, a switchblade knife, ‘‘in connection with an
incident that took place in a common hallway of the
college dormitory where he resided.’’ Id., 370–71. The
issue in that case was whether Campbell was entitled
to a jury instruction on an ‘‘implied exception to § 53-
206 if the jury found that the conduct occurred in his
place of abode,’’ and, more specifically, ‘‘[w]hether the
Appellate Court properly [had] relied on State v. Sealy,
208 Conn. 689, 546 A.2d 271 (1988), to conclude that a
residence or place of abode cannot include common
corridors and areas used to access a bathroom, kitchen
and other areas necessary to life . . . .’’ (Internal quo-
tation marks omitted.) State v. Campbell, supra, 371.
Following oral argument, however, we ordered supple-
mental briefing ‘‘on the question of whether subpara-
graphs (D) and (E) of § 53-206 (b) (3) provide[d] an
implicit exception for the carrying of a weapon in an
individual’s residence or place of abode for any weapon
other than a knife, the edged portion of the blade of
which is four inches or more in length (long knife).’’
Id., 371–72.
We concluded that the statutory exception pertaining
to the carrying of knives, namely, § 53-206 (b) (3), which
is identical to § 29-38 (b) (5) in all material respects,
does not apply to weapons other than long knives. Id.,
378. Observing that the pre-1999 version of § 53-206 (b)
had maintained a broader ‘‘exception for ‘any . . .
weapon or implement’ listed in the prohibitory clause,’’
we ‘‘conclude[d] that the exceptions set forth in sub-
paragraphs (D) and (E) of § 53-206 (b) (3) [that is, the
moving exception and the repair exception] plainly and
unambiguously appl[ied] only to the carrying of long
knives.’’ Id. Although we ‘‘reaffirm[ed] our holding in
State v. Sealy, supra, 208 Conn. 693 [and n.2],15 that the
language of what is now § 53-206 (b) (3) (D) and (E)
implicitly provides an exception for carrying a long
knife in one’s residence or abode’’; (footnote added)
State v. Campbell, supra, 300 Conn. 378; we neverthe-
less concluded that Campbell ‘‘would not be entitled to
a jury instruction under the statute even if the common
hallway of the dormitory constituted his abode because
he was carrying a switchblade knife, which is prohibited
irrespective of location.’’ Id. In so concluding, we
rejected Campbell’s argument that ‘‘limiting the excep-
tions set forth in subparagraphs (D) and (E) of § 53-
206 (b) (3) to long knives would be unworkable’’; id.,
379; concluding that, ‘‘[t]o the extent that any exception
set forth in § 53-206 (b) would be unworkable if the
person to whom it applied were not permitted to store
the weapon in a convenient place or to transport the
weapon so that it could be used for the permitted pur-
pose . . . permission to do so is implicit in the excep-
tion. . . . Similarly, we conclude that an exception
permitting an individual to carry a specific dangerous
weapon for a particular purpose implicitly permits the
individual to move the weapon with his or her house-
hold goods and to transport the weapon for purposes
of repair. We conclude, therefore, that the exceptions
set forth in § 53-206 (b) are workable without the exis-
tence of [a broad] implicit exception permitting the
carrying of any and all dangerous weapons in one’s
residence or place of abode.’’16 (Citations omitted;
emphasis added; footnotes omitted.) Id., 379–80.
In Campbell, ‘‘[w]e emphasize[d] that this does not
mean that an individual would be permitted to carry
all of the dangerous weapons specified in § 53-206 (b)
on his or her person in [his or her] residence or place
of abode for other purposes. . . . For example, it does
not follow from the fact that a martial arts student
would be permitted to carry a martial arts weapon from
his or her residence to a place of repair that the individ-
ual would be permitted as a general matter to carry the
weapon in his or her residence. If that were the case,
there would be no reason why an individual who was
not a martial arts student should be prohibited from
carrying a martial arts weapon in his or her residence.
There is no indication, however, that the legislature was
concerned with protecting a general sphere of privacy in
the home, where individuals would be permitted to
carry any dangerous weapon for any purpose they see
fit. Rather, the clear purpose of the exceptions is to
allow individuals to carry specific dangerous weapons
for specific purposes and, to the extent that using the
weapon for the permitted purpose requires the individ-
ual to carry it for ancillary purposes such as transporta-
tion to the place of use or repair, to permit carrying
the weapon for those purposes.’’17 (Citation omitted;
emphasis omitted.) Id., 380 n.6. Accordingly, we con-
cluded that, because ‘‘the statute . . . recognizes no
‘presumed lawful reason’ for carrying a switchblade
knife’’; id., 381; Campbell was not ‘‘entitled to a jury
instruction under the statute even if the common hall-
way of the dormitory constituted his abode because he
was carrying a switchblade knife, which is prohibited
irrespective of location.’’ Id., 378.
Consistent with our construction of the moving
exception of § 53-206 (b) (3) in Campbell, we conclude
that the linguistically indistinguishable moving excep-
tion of § 29-38 (b) (5) (D) does not apply to the defen-
dant’s dirk knife or police baton, which, like switch-
blades, are items that are ‘‘prohibited [by statute] irre-
spective of location.’’18 Id. The plain and unambiguous
statutory language, coupled with our recent construc-
tion in Campbell of an identically worded provision in
a related statute, gave the defendant fair warning that he
was not permitted to use his motor vehicle to transport a
dirk knife or police baton when, as in the present case,
there is no other statutory exception that permits him
to transport those items lawfully.19 Accordingly, we con-
clude that § 29-38 (a) is not void for vagueness in the
absence of our clarification of the moving exception in
§ 29-38 (b) (5) (D).
II
WHETHER § 29-38, AS APPLIED, VIOLATES
THE SECOND AMENDMENT
We now turn to the defendant’s claim, which is based
on the United States Supreme Court’s recent decisions
in McDonald v. Chicago, 561 U.S. 742, 130 S. Ct. 3020,
177 L. Ed. 2d 894 (2010), and District of Columbia v.
Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637(2008), that a construction of § 29-38 in accordance
with our interpretation of § 53-206 in State v. Campbell,
supra, 300 Conn. 378–80, that the moving exception is
inapplicable to dirk knives and police batons, renders
§ 29-38 in violation of the second amendment to the
United States constitution. The defendant further con-
tends that, to save § 29-38 from constitutional infirmity,
we should place a judicial gloss on § 29-38 to permit
the possession of those items during the transportation
of them from a former residence to a new residence.
In addressing the defendant’s claims, we first must
determine whether dirk knives and police batons consti-
tute arms within the meaning of the second amendment.
If we conclude that they are, we then must determine
whether the statute’s prohibition against transporting
those weapons from one residence to another does not
violate the defendant’s rights under the second amend-
ment because the state has a sufficiently strong interest
in enforcing such a prohibition. We address the parties’
arguments on these points in turn.
A
Background
We begin with a brief review of the scope of the
second amendment, as explained by the United States
Supreme Court in its landmark decision in District of
Columbia v. Heller, supra, 554 U.S. 570. In Heller, the
United States Supreme Court was called on to deter-
mine the constitutionality of District of Columbia ordi-
nances that broadly prohibited the possession of hand-
guns, in the home and elsewhere; see id., 574–76; and
also required citizens to ‘‘keep their lawfully owned
firearms, such as registered long guns, ‘unloaded and
disassembled or bound by a trigger lock or similar
device’ unless they are located in a place of business
or are being used for lawful recreational activities.’’ Id.,
575. In determining whether the second amendment
confers an individual right to possess arms and, if so,
the scope of such a right,20 the court conducted an
extensive textual and historical analysis of the second
amendment, which provides: ‘‘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.’’ U.S. Const., amend. II. Upon examining the
prefatory and operative clauses of the second amend-
ment; see generally District of Columbia v. Heller,
supra, 577–600; the court concluded that it ‘‘guaran-
tee[s] the individual right to possess and carry weapons
in case of confrontation.’’21 Id., 592. The court observed,
however, that this right is ‘‘not unlimited, just as the
[f]irst [a]mendment’s right of free speech [is] not . . . .
Thus, [the court] do[es] not read the [s]econd [a]mend-
ment to protect the right of citizens to carry arms for
any sort of confrontation, just as [the court] do[es] not
read the [f]irst [a]mendment to protect the right of
citizens to speak for any purpose.’’ (Citation omitted;
emphasis omitted.) Id., 595. After considering the
parameters of the second amendment right, the court
held that it does protect the possession of ‘‘weapons
. . . typically possessed by law-abiding citizens for law-
ful purposes’’; id., 625; and does not protect ‘‘dangerous
and unusual weapons.’’ (Internal quotation marks omit-
ted.) Id., 627. The court further concluded that the Dis-
trict of Columbia’s firearms ordinances violated ‘‘the
inherent right of self-defense [that] has been central
to the [s]econd [a]mendment right. The handgun ban
amounts to a prohibition of an entire class of arms that
is overwhelmingly chosen by American society for that
lawful purpose. The prohibition extends, moreover, to
the home, where the need for defense of self, family,
and property is most acute. Under any of the standards
of scrutiny that we have applied to enumerated constitu-
tional rights, banning from the home the most preferred
firearm in the nation to keep and use for protection of
one’s home and family . . . would fail constitutional
muster.’’ (Citation omitted; footnote omitted; internal
quotation marks omitted.) Id., 628–29.
Two years later, the United States Supreme Court
considered whether the second amendment right to
keep and bear arms is incorporated in the concept of
due process and, therefore, applicable to the states via
the fourteenth amendment. See McDonald v. Chicago,
supra, 561 U.S. 750. The court in McDonald explained
that its ‘‘decision in Heller points unmistakably to the
answer. Self-defense is a basic right, recognized by
many legal systems from ancient times to the present
day, and, in Heller, [the court] held that individual self-
defense is the central component of the [s]econd
[a]mendment right.’’ (Emphasis omitted; footnote omit-
ted; internal quotation marks omitted.) Id., 767. Follow-
ing a detailed historical analysis; see generally id.,768–77; the court concluded that the second amend-
ment is applicable to the states because ‘‘the [f]ramers
and ratifiers of the [f]ourteenth [a]mendment counted
the right to keep and bear arms among those fundamen-
tal rights necessary to our system of ordered liberty.’’
Id., 778.
Heller aptly has been characterized as having adopted
‘‘a two-pronged approach to [s]econd [a]mendment
challenges. First, [the court] ask[s] whether the chal-
lenged law imposes a burden on conduct falling within
the scope of the [s]econd [a]mendment’s guarantee.
. . . If it does not, [the] inquiry is complete. If it does,
[the court] evaluate[s] the law under some form of
means-end scrutiny. If the law passes muster under that
standard, it is constitutional. If it fails, it is invalid.’’
(Citation omitted; footnote omitted.) United States v.
Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010), cert. denied,
U.S. , 131 S. Ct. 958, 178 L. Ed. 2d 790 (2011);
see also United States v. Chovan, 735 F.3d 1127, 1136–37
(9th Cir. 2013), cert. denied, U.S. , 135 S. Ct.
187, 190 L. Ed. 2d 146 (2014); Kachalsky v. Westchester,
701 F.3d 81, 93 (2d Cir. 2012), cert. denied sub nom.
Kachalsky v. Cacase, U.S. , 133 S. Ct. 1806, 185
L. Ed. 2d 812 (2013). The appropriate degree of means-
end scrutiny, generally some form of intermediate scru-
tiny, depends on the extent to which the challenged
law burdens conduct protected under the second
amendment.22 See, e.g., Kachalsky v. Westchester, supra,
93; Shew v. Malloy, 994 F. Supp. 2d 234, 246–47 (D.
Conn. 2014).
B
Whether Dirk Knives and Police Batons
Are Protected Arms Under
the Second Amendment
As we have explained, in evaluating the constitution-
ality of the statutory proscription against the transporta-
tion of dirk knives and police batons, we first must
determine whether those weapons fall within the term
‘‘[a]rms’’ for purposes of the second amendment.23 See,
e.g., United States v. Henry, 688 F.3d 637, 640 (9th
Cir. 2012) (‘‘because we conclude that machine gun
possession is not entitled to [s]econd [a]mendment pro-
tection, it is unnecessary to consider [the defendant’s]
argument that the [D]istrict [C]ourt applied the incor-
rect level of constitutional scrutiny in evaluating his
claims’’), cert. denied, U.S. , 133 S. Ct. 996, 184
L. Ed. 2d 773 (2013); United States v. Marzzarella,
supra, 614 F.3d 94–95 (analyzing whether firearm with
obliterated serial number is arm within meaning of sec-
ond amendment). We are guided in that task by the
United States Supreme Court’s decision in Heller,
which, beyond its broader holding that the second
amendment protects the right of individuals to bear
arms, also explains the contours of that right as it
applies to the possession of particular weapons. More
specifically, in determining that none of its prior prece-
dents foreclosed a text based construction of the sec-
ond amendment as an individual right,24 the court
reviewed at length its opinion in United States v. Miller,
307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939), in which
the court had upheld ‘‘against a [s]econd [a]mendment
challenge [a] federal indictment for [the transportation
of] an unregistered short-barreled shotgun in interstate
commerce, in violation of the National Firearms Act,
[Pub. L. No. 474] 48 Stat. 1236 [1934].’’ District of
Columbia v. Heller, supra, 554 U.S. 621–22; see United
States v. Miller, supra, 176, 183. The court emphasized
in Heller that Miller had concluded only that the short-
barreled shotgun was a ‘‘type of weapon . . . not eligi-
ble for [s]econd [a]mendment protection: ‘In the
absence of any evidence tending to show that the pos-
session or use of a [short-barreled shotgun] at this time
has some reasonable relationship to the preservation
or efficiency of a well regulated militia, [the court could
not] say that the [s]econd [a]mendment guarantees the
right to keep and bear such an instrument.’ . . . ‘Cer-
tainly,’ the [c]ourt [in Miller] continued, ‘it is not within
judicial notice that this weapon is any part of the ordi-
nary military equipment or that its use could contribute
to the common defense.’ ’’ (Citation omitted; emphasis
omitted.) District of Columbia v. Heller, supra, 622,
quoting United States v. Miller, supra, 178. The court
emphasized that ‘‘Miller stands . . . for the proposi-
tion that the [s]econd [a]mendment right, whatever its
nature, extends only to certain types of weapons.’’25
District of Columbia v. Heller, supra, 623.
Significantly, however, for purposes of the present
case, the court in Heller then articulated ‘‘what types
of weapons Miller permits. Read in isolation, Miller’s
phrase ‘part of ordinary military equipment’ could mean
that only those weapons useful in warfare are protected.
That would be a startling reading of the opinion, since
it would mean that the National Firearms Act’s restric-
tions on machineguns (not challenged in Miller) might
be unconstitutional, machineguns being useful in war-
fare in 1939. We think that Miller’s ‘ordinary military
equipment’ language must be read in tandem with what
comes after: ‘[O]rdinarily when called for [militia] ser-
vice [able-bodied] men were expected to appear bearing
arms supplied by themselves and of the kind in common
use at the time.’ . . . The traditional militia was formed
from a pool of men bringing arms ‘in common use at
the time’ for lawful purposes like self-defense. ‘In the
colonial and revolutionary war era, [small-arms] weap-
ons used by militiamen and weapons used in defense
of person and home were one and the same.’ . . .
Indeed, that is precisely the way in which the [s]econd
[a]mendment’s operative clause furthers the purpose
announced in its preface. We therefore read Miller to
say only that the [s]econd [a]mendment does not pro-
tect those weapons not typically possessed by law-abid-
ing citizens for lawful purposes, such as short-barreled
shotguns.’’ (Citations omitted; emphasis omitted.) Id.,624–25; see also United States v. Miller, supra, 307
U.S. 179–82 (discussing, inter alia, William Blackstone’s
Commentaries on the Laws of England, Adam Smith’s
The Wealth of Nations, and state statutes governing
citizens’ obligations to participate in militia and to sup-
ply weapons such as muskets or firelocks, ammunition,
swords and bayonets).
The court further noted that this reading of Miller’s
‘‘important limitation’’ on the second amendment right
finds ‘‘[support in] the historical tradition of prohibiting
the carrying of ‘dangerous and unusual weapons.’ ’’ Dis-
trict of Columbia v. Heller, supra, 554 U.S. 627. The
court dismissed the potential objection ‘‘that if weapons
that are most useful in military service—M-16 rifles and
the like—may be banned, then the [s]econd [a]mend-
ment right is completely detached from the prefatory
clause. . . . [T]he conception of the militia at the time
of the [s]econd [a]mendment’s ratification was the body
of all citizens capable of military service, who would
bring the sorts of lawful weapons that they possessed
at home to militia duty. It may well be true today that
a militia, to be as effective as militias in the [eighteenth]
century, would require sophisticated arms that are
highly unusual in society at large. Indeed, it may be
true that no amount of small arms could be useful
against modern-day bombers and tanks. But the fact
that modern developments have limited the degree of
fit between the prefatory clause and the protected right
cannot change [the] interpretation of [that] right.’’ Id.,627–28. Applying this analysis, the court held that the
District of Columbia ordinances violated ‘‘the inherent
right of self-defense [that] has been central to the [s]ec-
ond [a]mendment right,’’ observing that the ‘‘handgun
ban amounts to a prohibition of an entire class of ‘arms’
that is overwhelmingly chosen by American society for
that lawful purpose.’’ Id., 628. With this background,
we now address the issue of whether the dirk knife and
police baton that the defendant had in his vehicle in
violation of § 29-38 are ‘‘arms’’ within the scope of the
second amendment, that is, whether they are weapons
with traditional military utility that are ‘‘typically pos-
sessed by law-abiding citizens for lawful purposes’’;
id., 625; and not ‘‘dangerous and unusual weapons.’’
(Internal quotation marks omitted.) Id., 627.
1
Dirk Knives
The state contends that dirk knives fall outside the
scope of the second amendment because they ‘‘are not
normally carried by private, law-abiding citizens for
defense of hearth and home, and are not traditional
military weapons.’’ The state supports this argument
with citations to a number of nineteenth century cases
to which the court in Heller cites; see, e.g., Aymette v.
State, 21 Tenn. (2 Hum.) 154, 158–59 (1840); English v.
State, 35 Tex. 473, 477 (1871); State v. Workman, 35 W.
Va. 367, 372–73, 14 S.E. 9 (1891); and several post-
Heller cases, principally, an unpublished decision of
the Massachusetts Appeals Court, Commonwealth v.
Alem A., Massachusetts Appeals Court, Docket No. 10-
P-600 (Mass. App. December 5, 2011), review denied,
461 Mass. 1105, 961 N.E.2d 589 (2012), as well as Norton
v. South Portland, 831 F. Supp. 2d 340, 362 (D. Me.
2011), Mack v. United States, 6 A.3d 1224, 1236 (D.C.
2010), and Wooden v. United States, 6 A.3d 833, 839–40
(D.C. 2010). As we explain hereinafter, however, these
authorities are either distinguishable or otherwise
unpersuasive in light of Heller; the more persuasive
authority supports the conclusion that dirk knives con-
stitute ‘‘arms,’’ as the court in Heller explicated that
term.
A particularly thorough and authoritative analysis of
this issue is found in State v. Delgado, 298 Or. 395, 692
P.2d 610 (1984), a case in which the Oregon Supreme
Court considered whether an Oregon state statute that
‘‘prohibit[ed] the mere possession and mere carrying
of a switchblade knife’’ violated the right to bear arms
under the Oregon constitution.26 Id., 397. The court
applied the historically based definition of the term
‘‘arms’’ that it previously had articulated in State v.
Kessler, 289 Or. 359, 368, 614 P.2d 94 (1980)—a defini-
tional approach that mirrors the model employed by the
United States Supreme Court in District of Columbia v.
Heller, supra, 554 U.S. 624–25, for purposes of the sec-
ond amendment—observing that, ‘‘because settlers dur-
ing the revolutionary era used many of the same
weapons for both personal and military defense, the
term ‘arms,’ as contemplated by the constitutional fram-
ers, was not limited to firearms but included those hand-
carried weapons commonly used for personal defense.
. . . Thus, the term ‘arms’ ‘includes weapons com-
monly used for either purpose, even if a particular
weapon is unlikely to be used as a militia weapon.’ ’’27
(Citation omitted.) State v. Delgado, supra, 399. The
court further explained: ‘‘The appropriate inquiry in the
case . . . is whether a kind of weapon, as modified by
its modern design and function, 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.’’ (Footnote
omitted.) Id., 400–401; see also id., 401 (‘‘it must be
determined whether the drafters would have intended
the word ‘arms’ to include the [switchblade] knife as a
weapon commonly used by individuals for [self-
defense]’’).
After examining the centuries long evolution of the
knife as a weapon used by military forces around the
world; see id., 401–402; the court in Delgado explained
that the switchblade knife was simply a technological
improvement on folding knives such as military jack-
knives and the ‘‘constant or enduring’’ pocketknife. Id.,
402. Accordingly, the court concluded that, if the Ore-
gon dangerous weapons statute ‘‘proscribed the posses-
sion of mere pocketknives, there can be no question
but that the statute would be held to conflict directly
with [a]rticle I, [§] 27 [of the Oregon constitution]. The
only difference is the presence of the spring-operated
mechanism that opens the knife.’’ Id., 403. The court
therefore invalidated the state’s absolute prohibition on
the possession of switchblade knives.28 Id., 404. But
see Lacy v. State, 903 N.E.2d 486, 491–92 (Ind. App.)
(applying similar general historical analysis in post-
Heller second amendment challenge to statutory ban
on carrying switchblade knife but relying on case law
and legislative history under federal law prohibiting,
inter alia, interstate transportation of switchblade
knives, 15 U.S.C. §§ 1241 through 1245, for proposition
that ‘‘switchblades are primarily used by criminals and
are not substantially similar to a regular knife or jack-
knife,’’ meaning that court could not ‘‘say that switch-
blades are typically possessed by law-abiding citizens
for [self-defense] purposes’’), transfer denied, 915
N.E.2d 991 (Ind. 2009).
Guided by the definition of the term ‘‘arms,’’ as articu-
lated in District of Columbia v. Heller, supra, 554 U.S.
624–25, and the analytical approach employed in both
Heller and State v. Delgado, supra, 298 Or. 399–403, we
examine the military origins and history of the dirk
knife, starting with the fact that, as a general matter,
fixed, long blade ‘‘[k]nives have long been part of Ameri-
can military equipment. The federal Militia Act of 1792
[c. 33, 1 Stat. 271] required all able-bodied free white
men between [the ages of] eighteen and forty-five to
possess, among other items, ‘a sufficient bayonet.’ This
establishes both that knives were common and were
arms for militia purposes. Colonial militia laws required
that men (and sometimes all householders, regardless
of sex) own not only firearms but also bayonets or
swords; the laws sometimes required [the] carrying [of]
swords in [nonmilitia] situations, such as when going to
church. In New England, the typical choice for persons
required to own a bayonet or a sword was the sword
because most militiamen fulfilled their legal obligation
to possess a firearm by owning a ‘fowling piece’ (an
ancestor to the shotgun, particularly useful for bird
hunting), and these firearms did not have studs [on]
which to mount a bayonet.
‘‘Well after the nation’s founding, knives continued
to be an important tool for many American soldiers.
During World War II, American soldiers, sailors, and
airmen wanted and purchased fixed blade knives, often
of considerable dimensions. At least in some units, sol-
diers were ‘authorized an M3 trench knife, but many
carried a favorite hunting knife.’ The Marine Corps
issued the Ka-Bar fighting knife. As one World War II
memoir recounts, ‘[t]his deadly piece of cutlery was
manufactured by the company bearing its name. The
knife was [one] foot long with a [seven inch long] by
[one and one-half inch wide] blade. . . . Light for its
size, the knife was beautifully balanced.’ Vietnam mem-
oirs report that Ka-Bar and similar knives were still in
use, but ‘not [everyone was] issued a Ka-Bar knife.
There [were] not enough to go around. If you [did not]
have one, you [were forced to] wait until someone [was]
going home from Vietnam and [gave] his to you.’ Even
today, some Special Forces units regularly carry combat
knives.’’ (Emphasis omitted; footnotes omitted.) D.
Kopel et al., ‘‘Knives and the Second Amendment,’’ 47
U. Mich. J.L. Reform 167, 192–93 (2013).
The history of dirk knives in particular is consistent
with the American military usage of knives in general.
‘‘A dirk is a long straight-bladed dagger or short sword
usually defined by comparison [to] the ceremonial
weapons carried by Scottish highlanders and naval offi-
cers in the [e]ighteenth and [n]ineteenth [c]enturies.’’
Commonwealth v. Miller, supra, 22 Mass. App. 695. In
the 1700s, the Scottish brought the dirk to the Americas,
where its design evolved from a knife with a handle
grip overlapping a large single-edged blade, to a double-
edged blade; after 1745, dirk blades ‘‘[q]uite frequently
. . . were made from old sword blades.’’ H. Peterson,
supra, p. 19. As the dirk has evolved to be nearly synony-
mous with the dagger, the term became ‘‘appli[cable]
to all the short side arms carried by naval officers,’’
such that it came to include ‘‘true daggers and sharply
curved knives almost of cutlass length.’’ Id., p. 2; see
also id., p. 95 (describing dirk as ‘‘[t]he most colorful
of all the naval knives’’ and ‘‘[a] companion to and
substitute for the sword’’). The blade shape of dirks
evolved during the nineteenth century from straight and
double-edged to curved and then back to straight; all
dirks featured large handles separated from the blade
by prominent guards, or quillons. See id., pp. 96–101
(collecting photographs); see also E. Janes, supra, p.
67 (noting that dirk used in early nineteenth century
had double-edged blade, becoming, ‘‘in fact, a short
sword’’). Indeed, as the naval dirk evolved over time
to become the Ka-Bar fighting knife and other military
issued combat knives—all of which look remarkably
like the dirk knife at issue in the present case—the
enhancements have included now common stabbing
oriented features such as relatively long blades tapered
to a sharp point, multiple edges, a handle with a hilt to
protect the user’s hand during thrusting, and thick grips.
Compare H. Peterson, supra, pp. 100–101 (photographs
of nineteenth century naval dirks), with id., pp. 108,
111 (describing and depicting Navy Mark 2 and Ka-Bar
knives), and id., p. 109 (noting that naval Mark 2 knife
was ‘‘only possible weapon’’ for use in defending against
enemy frogmen during underwater demolition work).
As to whether dirk knives are ‘‘ ‘dangerous and
unusual weapons’ ’’; District of Columbia v. Heller,
supra, 554 U.S. 627; and, therefore, not ‘‘arms’’ within
the meaning of the second amendment, their more lim-
ited lethality relative to other weapons that, under
Heller, fall squarely within the protection of the second
amendment—e.g., handguns—provides strong support
for the conclusion that dirk knives also are entitled to
protected status. See D. Kopel et al., supra, 47 U. Mich.
J.L. Reform 182–83 (citing empirical research demon-
strating that, in 2010, knives or cutting instruments were
used in 13.1 percent of United States murders, in com-
parison to firearms, which accounted for 67.5 percent,
and that, in one state between 1978 and 1993, 39 percent
of firearm penetrating traumas were fatal, compared to
7.1 percent of knife penetrating traumas); see also id.,
182 (‘‘[i]f handguns may not be prohibited, in spite of
the clear public safety concerns, then a category of arm
that is less dangerous clearly may not be prohibited,
either’’); E. Volokh, ‘‘Implementing the Right to Keep
and Bear Arms for Self-Defense: An Analytical Frame-
work and a Research Agenda,’’ 56 UCLA L. Rev. 1443,
1481–82 (2009) (suggesting that weapon is protected if
it ‘‘is no more practically dangerous than what is in
common use among law-abiding citizens’’). This consid-
eration, coupled with the fact that dirk knives bear a
close relation to the bayonet and the sword, and have
long been used for military purposes, removes them
from the category of weapons that may be deemed
dangerous and unusual, thereby rendering them subject
to protection under the second amendment.29 See, e.g.,
M. O’Shea, ‘‘The Right to Defensive Arms After District
of Columbia v. Heller,’’ 111 W. Va. L. Rev. 349, 377
(2009) (‘‘after Heller, it appears indisputable that the
‘arms’ protected by the [s]econd [a]mendment include
common defensive weapons other than firearms, such
as knives and pepper spray’’); cf. People v. Yanna, 297
Mich. App. 137, 145, 824 N.W.2d 241 (2012) (‘‘Heller
concluded that handguns are not sufficiently dangerous
to be banned. Tasers and stun guns, while plainly dan-
gerous, are substantially less dangerous than hand-
guns.’’).
Although the state cites to numerous authorities that,
at first blush, might appear to support a contrary conclu-
sion, a more careful review of these authorities reveals
that they lack persuasive force. We turn first to its post-
Heller authorities, most notably, Commonwealth v.
Alem A., supra, Massachusetts Appeals Court, Docket
No. 10-P-600, which is directly on point insofar as it
concluded that the second amendment, as elucidated
by Heller, does not extend to a large, double-edged
knife. Nevertheless, the Massachusetts Appeals Court
designated its decision in Alem A. as unpublished and
nonprecedential, presumably because its entire consti-
tutional analysis consists of a single paragraph. Even
that limited analysis is suspect in view of the court’s
reasoning that, because double-edged knives are
deemed ‘‘dangerous’’ under the Massachusetts statute
prohibiting the carrying of dangerous weapons, they
are, ipso facto, ‘‘ ‘dangerous and unusual’ ’’ and, as a
consequence, not protected under the second amend-
ment. Id. Alem A. is wholly unpersuasive authority that
we respectfully decline to follow.
The state’s reliance on Wooden v. United States,
supra, 6 A.3d 833, is misplaced because that case is
readily distinguishable on procedural grounds. In
Wooden, the District of Columbia Court of Appeals
rejected a second amendment challenge to a conviction
of carrying a dangerous weapon, in that case, an ordi-
nary knife that the defendant, Stacia Wooden, had
brought to an altercation with her husband’s ex-girl-
friend. See id., 834–35. The court in Wooden, however,
emphasized that, because Wooden’s claim was unpre-
served, it would be considered only for plain error,
which required her to establish that it was ‘‘clear or
obvious’’ that she was entitled to prevail under Heller.
Id., 835. In the context of this heightened showing
required of Wooden, the court explained that, due to
Heller’s focus on firearms, it could not ‘‘find it ‘plain’—
‘clear’ or ‘obvious’—that the [court in] Heller . . .
would extend its ruling to knives carried exclusively
for use as a dangerous weapon in self-defense. Absent
the kind of historical analysis the [c]ourt applied to
guns, Heller does not give [the court] the assurance
necessary to find plain error in the . . . instructions
[under the carrying a dangerous weapon statute] as
applied to knives.’’30 (Emphasis in original.) Id., 839–40.
This circumscribed analysis significantly diminishes
Wooden’s precedential value, especially because the
court expressly declined to foreclose the possibility
that, in a case in which the issue is properly preserved
and briefed, it would recognize that the protections of
the second amendment apply to the possession of
knives. See id., 839 (observing that, ‘‘[p]erhaps a
detailed Heller-type analysis would result in a conclu-
sion that some kinds of knives today—perhaps ordinary
pocket knives or key chain knives, if not switchblades
. . . may qualify for [s]econd [a]mendment protection’’
[footnotes omitted]); see also Mack v. United States,
supra, 6 A.3d 1234–36 (following Wooden and rejecting
plain error challenge to conviction for carrying danger-
ous weapon because court could not ‘‘say it [was] ‘clear’
or ‘obvious’ that the [s]econd [a]mendment secures the
right of the people ‘to keep and bear’ ice picks,’’ particu-
larly outside of home).
Finally, the most venerable authorities on which the
state relies, in particular, the nineteenth century cases
of Aymette v. State, supra, 21 Tenn. (2 Hum.) 154,
English v. State, supra, 35 Tex. 473, and State v. Work-
man, supra, 35 W. Va. 367, bear on the issue presented
only insofar as they contributed to the general definition
of protected weapon set forth in District of Columbia
v. Heller, supra, 554 U.S. 624–25, and United States v.
Miller, supra, 307 U.S. 178.31 Beyond their definitional
import, however, these state court decisions lack per-
suasive value because none of them acknowledges the
military origins—and contemporaneous use—of the
dirk knife; instead, they summarily classify the dirk
knife with other weapons deemed to be particular to the
criminal element, observing, inter alia, that the ‘‘terms
dirks, daggers, slungshots, sword canes, brass knuckles
and bowie knives, belong to no military vocabulary.
Were a soldier on duty found with any of these things
about his person, he would be punished for an offense
against discipline.’’ English v. State, supra, 477. Finally,
the fact that all three of these cases classify the pistol
as a weapon not protected by the second amendment;
see Aymette v. State, supra, 159–60; English v. State,
supra, 474–75; State v. Workman, supra, 373; renders
them particularly anachronistic in light of Heller’s focus
on the handgun as the paradigmatic protected weapon
given its status as ‘‘the most preferred firearm in the
nation to keep and use for protection of one’s home
and family . . . .’’32 (Citation omitted; internal quota-
tion marks omitted.) District of Columbia v. Heller,
supra, 554 U.S. 628–29; see also Kachalsky v. Westches-
ter, supra, 701 F.3d 91 n.14 (noting that English and
other such cases ‘‘were decided on the basis of an
interpretation of the [s]econd [a]mendment—that pis-
tols and similar weapons are not ‘arms’ within the mean-
ing of the [s]econd [a]mendment or its state consti-
tutional analogue—that conflicts with the [United
States] Supreme Court’s present reading of the
[a]mendment’’).33
For these reasons, we agree with the defendant that,
under Heller, the dirk knife that he was transporting
to his new residence falls within the term ‘‘[a]rms’’ for
purposes of the second amendment.34 We therefore
must decide whether the state’s interest in prohibiting
the defendant from possessing that weapon in his vehi-
cle is sufficient to overcome the defendant’s second
amendment rights. We first consider, however, whether
the defendant’s possession of the police baton also is
subject to protection under the second amendment.
2
Police Baton
In response to the defendant’s contention that he had
a second amendment right to have the police baton in
his vehicle, the state contends that police batons are
‘‘dangerous and unusual’’ when possessed by persons
not associated with law enforcement. In particular, the
state points to the facts of the Rodney King case; see
Koon v. United States, 518 U.S. 81, 86–87, 116 S. Ct.
2035, 135 L. Ed. 2d 392 (1996) (describing assault of
King by police with, inter alia, police batons); as illustra-
tive of the degree of physical injury that a police baton
can cause. The state also relies on People v. Brown,
253 Mich. 537, 538, 541–43, 235 N.W. 245 (1931), and
State v. Workman, supra, 35 W. Va. 373, for the proposi-
tion that blackjacks (Brown) and billies (Workman)—
weapons of a similar nature to police batons—are
unique to the criminal element and, consequently, are
not protected under the second amendment. On the
basis of more contemporary authority, including State
v. Kessler, supra, 289 Or. 359, we agree with the defen-
dant that police batons are ‘‘[a]rms’’ within the meaning
of the second amendment because they are weapons
with traditional military utility that are typically pos-
sessed by law-abiding citizens for lawful purposes, and
they are neither especially dangerous nor unusual.
We begin with a brief discussion of People v. Brown,
supra, 253 Mich. 537, in which the Michigan Supreme
Court considered the defendant’s claim that his convic-
tion of carrying a dangerous weapon in an automobile
predicated on his possession of a blackjack violated
the state constitutional right to ‘‘bear arms for the
defense of himself and the [s]tate.’’ (Internal quotation
marks omitted.) Id., 538, quoting Mich. Const. (1908),
art. 2, § 5. After noting the restrictions on the scope of
the state constitutional right to bear arms;35 People v.
Brown, supra, 541; the court observed that Michigan’s
dangerous weapons statute, which did ‘‘not include
ordinary guns, swords, revolvers, or other weapons usu-
ally relied [on] by good citizens for defense or pleasure’’;
id., 542; was instead ‘‘a partial inventory of the arsenal
of the ‘public enemy,’ the ‘gangster.’ It describes some
of the particular weapons with which he [engages in
warfare] on the [s]tate and reddens his murderous trail.
The blackjack is properly included in the list of out-
lawed weapons. As defined in [one popular encyclope-
dia], it is . . . ‘a bludgeonlike weapon consisting of a
lead slug attached to a leather thong. The more carefully
constructed [blackjacks] contain a spring within the
handle which serves to ease the effect of the impact
[on] the wrist of the [person] who wields the weapon.
The blackjack has the reputation of being a characteris-
tic weapon of urban gangsters and rowdies.’ ’’ Id. The
court therefore concluded that the statutory prohibition
against blackjacks did not violate the defendant’s state
constitutional right to bear arms for self-defense. Id.,542–43; see also State v. Swanton, 129 Ariz. 131, 132,
629 P.2d 98 (App. 1981) (noting that then existing, pre-
Heller case law did not extend second amendment pro-
tection to states, and concluding that defendant did not
have right to possess nunchakus or nunchuks under
Arizona constitution because ‘‘the term ‘arms’ as used
[therein] means such arms as are recognized in civilized
warfare and not those used by a ruffian, brawler or
assassin’’); State v. Workman, supra, 35 W. Va. 373(observing that second amendment refers only to
‘‘weapons of warfare to be used by the militia, such as
swords, guns, rifles, and muskets . . . and not to pis-
tols, bowie-knives, brass knuckles, billies, and such
other weapons as are usually employed in brawls,
street-fights, duels and affrays’’).
In contrast, in State v. Kessler, supra, 289 Or. 359,
the court considered the claim of the defendant, Randy
Kessler, that his conviction of ‘‘ ‘possession of a slugging
weapon,’ ’’ arising from his possession of two billy clubs
in his apartment, violated his state constitutional right
to bear arms. Id., 361, 370. Following a comprehensive
analysis of the historical underpinnings of the provision
of the Oregon constitution at issue, the court held that
Kessler’s possession of billy clubs in his apartment was
constitutionally protected.36 Id., 372. After observing
that ‘‘[t]he club is considered the first personal weapon
fashioned by humans’’; id., 371; and ‘‘is still used today
as a personal weapon, commonly carried by the police.’’
Id., 371–72; see also id., 372 (noting statutory exception
permitting peace officers to possess and carry black-
jacks and billies); the court concluded that the drafters
of the Oregon constitution ‘‘intended ‘arms’ to include
the hand-carried weapons commonly used by individu-
als for personal defense. The club is an effective, hand-
carried weapon [that] cannot logically be excluded from
this term.’’ Id., 372.
Kessler is more persuasive than Brown with respect
to whether police batons fall within the protection of the
second amendment. Perhaps most importantly, police
batons simply are not the same as blackjacks, rendering
Brown distinguishable in that important regard.37 See
Commonwealth v. Perry, 455 Mass. 1010, 1012, 916
N.E.2d 762 (2009) (‘‘ ‘expandable baton’ ’’ not ‘‘ ‘black-
jack’ ’’ for purpose of dangerous weapon statute).
Indeed, in contrast to the blackjack, which, as we noted
previously, has been characterized as a weapon used
primarily for illegitimate purposes;38 see, e.g., People v.
Brown, supra, 253 Mich. 542; expandable metal police
batons, also known as collapsible batons, are instru-
ments manufactured specifically for law enforcement
use as nonlethal weapons. Furthermore, the widespread
use of the baton by the police, who currently perform
functions that were historically the province of the mili-
tia; see, e.g., D. Kopel, ‘‘The Second Amendment in
the Nineteenth Century,’’ 1998 BYU L. Rev. 1359, 1534;
demonstrates the weapon’s traditional military utility.
Cf. People v. Yanna, supra, 297 Mich. App. 145–46 (not-
ing that, because 95 percent of police departments
nationwide use Tasers and stun guns, there is ‘‘no rea-
son to doubt that the majority of Tasers and stun guns
are used only for lawful purposes,’’ and sustaining
defendant’s second amendment challenge to statute
prohibiting ownership and possession of those devices
in home); M. O’Shea, supra, 111 W. Va. L. Rev. 391–93
(suggesting examination of ‘‘[o]rdinary [p]olice [a]rms’’
issued to patrol officers by governments as illustrative
of common use for second amendment analysis).
This widespread acceptance of batons within the law
enforcement community also supports the conclusion
that they are not so dangerous or unusual as to fall
outside the purview of the second amendment. To this
end, the fact that police batons are inherently less lethal,
and therefore less dangerous and less intrinsically
harmful, than handguns, which clearly constitute
‘‘arms’’ within the meaning of the second amendment,
provides further reason to conclude that they are enti-
tled to constitutional protection. Cf. People v. Yanna,
supra, 297 Mich. App. 145 (‘‘[T]he prosecution also
argues that Tasers and stun guns are so dangerous that
they are not protected by the [s]econd [a]mendment.
However, it is difficult to see how this is so since Heller
concluded that handguns are not sufficiently dangerous
to be banned. Tasers and stun guns, while plainly dan-
gerous, are substantially less dangerous than handguns.
Therefore, [T]asers and stun guns do not constitute
dangerous weapons for purposes of [s]econd [a]mend-
ment inquiries.’’); D. Kopel et al., supra, 47 U. Mich. J.L.
Reform 184 (‘‘[K]nives are far less dangerous than guns.
Any public safety justification for knife regulation is
necessarily less persuasive than the public safety justifi-
cation for firearms regulation.’’). Indeed, expandable
batons are intermediate force devices that, when used
as intended,39 are unlikely to cause death or permanent
bodily injury. For these reasons, we are persuaded that
the police baton that the defendant had in his vehicle
is the kind of weapon traditionally used by the state
for public safety purposes and is neither so dangerous
nor so unusual as to fall outside the purview of the
second amendment’s right to keep and bear arms.
C
Means-End Scrutiny of § 29-38
Finally, we must determine whether the statutory ban
on the defendant’s possession of the dirk knife and
police baton in his vehicle for the purpose of trans-
porting them to his new residence survives constitu-
tional scrutiny. Our resolution of this issue requires us
to evaluate the impact of this statutory restriction on
the ‘‘core’’ right identified in District of Columbia v.
Heller, supra, 554 U.S. 630, namely, the right to possess
certain arms in the home for the purpose of self-
defense.40 The defendant contends that § 29-38, as
applied to his transportation of those weapons in the
present case, so severely burdens his right to bear arms
in his own home that the statutory restriction should
be subjected to strict judicial scrutiny. Specifically, he
argues that the statute’s blanket prohibition against
using a vehicle to transport a dirk knife and a police
baton from one home to another makes it unreasonably
difficult, if not impossible, to lawfully move those weap-
ons to a new home. In such circumstances, the defen-
dant asserts, § 29-38 impermissibly infringes on his
second amendment rights because the complete statu-
tory ban on transporting those protected weapons is
insufficiently related to the state’s concededly impor-
tant interest in ensuring public safety. Finally, the defen-
dant asserts that the only way to save § 29-38 from
constitutional infirmity is for this court to engraft a
moving exception onto that provision that is broader
in scope than the existing exception, set forth in § 29-
38 (b) (5) (D), which, as written, does not apply to dirk
knives and police batons. See part I B of this opinion.
The state contends that, even if, as we have con-
cluded, the dirk knife and police baton seized from the
defendant’s vehicle fall within the purview of the second
amendment’s right to keep and bear arms, heightened
judicial scrutiny is inapplicable because § 29-38 does
not constitute a substantial burden on rights guaranteed
under the second amendment. The state argues, rather,
that, because § 29-38 does not prohibit the use of a
vehicle to transport certain other weapons from one
residence to another, its infringement on second
amendment rights is insignificant. For similar reasons,
the state also asserts that, if heightened scrutiny is
appropriate, intermediate, rather than strict, scrutiny
should apply. The state further contends that the stat-
ute’s ban on transporting ‘‘a few inherently dangerous
weapons,’’ including dirk knives and police batons—
which, the state acknowledges, are illegal either to
transport or to carry, without exception; see generally
General Statutes §§ 29-38 and 53-206—survives inter-
mediate scrutiny because it ‘‘employ[s] a reasonable
means to meet the [substantial governmental interest
in] promoting public safety on our streets’’ by ‘‘keeping
dangerous and deadly weapons off [those] streets and
out of cars.’’ (Internal quotation marks omitted.)
Although we reject the state’s contention that the statu-
tory ban on transporting dirk knives and police batons
does not substantially burden the defendant’s rights
under the second amendment, we agree with the state
that intermediate rather than strict scrutiny is the appro-
priate standard. We also conclude, however, that § 29-
38, as applied to the facts of this case, does not survive
that heightened level of constitutional review.
In Heller, the United States Supreme Court did not
articulate the level of scrutiny applicable to laws that
are found to restrict or burden second amendment
rights, explaining that the District of Columbia’s com-
plete ban on possessing an operable firearm in the home
failed constitutional muster under any standard. Dis-
trict of Columbia v. Heller, supra, 554 U.S. 628–29. The
court did observe, however, that rational basis scrutiny
would be inapplicable in view of the second amend-
ment’s status as an enumerated right. Id., 628 n.27.
Consistent with the approach that other federal cir-
cuit courts of appeals have adopted, the Second Circuit
Court of Appeals has observed that, because of ‘‘Heller’s
emphasis on the weight of the burden imposed by the
[District of Columbia] gun laws, [the court does] not
read [Heller] to mandate that any marginal, incremental
or even appreciable restraint on the right to keep and
bear arms be subject to heightened scrutiny. Rather,
heightened scrutiny is triggered only by those restric-
tions that . . . operate as a substantial burden on the
ability of law-abiding citizens to possess and use a fire-
arm for self-defense (or for other lawful purposes).’’
United States v. Decastro, 682 F.3d 160, 166 (2d Cir.
2012), cert. denied, U.S. , 133 S. Ct. 838, 184 L.
Ed. 2d 665 (2013); see also Heller v. District of Colum-
bia, 670 F.3d 1244, 1257 (D.C. Cir. 2011) (‘‘a regulation
that imposes a substantial burden [on] the core right
of self-defense protected by the [s]econd [a]mendment
must have a strong justification’’); Ezell v. Chicago, 651
F.3d 684, 708 (7th Cir. 2011) (‘‘a severe burden on the
core [s]econd [a]mendment right of armed self-defense
will require an extremely strong public-interest justifi-
cation and a close fit between the government’s means
and its end’’); United States v. Masciandaro, 638 F.3d
458, 470 (4th Cir.) (‘‘[a] severe burden on the core [s]ec-
ond [a]mendment right of armed self-defense should
require strong justification’’ [internal quotation marks
omitted]), cert. denied, U.S. , 132 S. Ct. 756,
181 L. Ed. 2d 482 (2011). Thus, if a statutory provision
restricting the use of a particular weapon does not
substantially burden conduct protected by the second
amendment, the provision meets constitutional require-
ments without any further inquiry. E.g., United States
v. Decastro, supra, 164–65 (concluding that, because
federal gun control statute at issue ‘‘only minimally
affects the ability to acquire a firearm, it is not subject
to any form of heightened scrutiny’’). Put differently,
only if the ‘‘challenged law imposes a [substantial] bur-
den on conduct falling within the scope of the [s]econd
[a]mendment’s guarantee . . . [does the court] evalu-
ate [it] under some form of means-end [or heightened]
scrutiny.’’ United States v. Marzzarella, supra, 614 F.3d
89. Accordingly, we first must determine whether the
statutory ban on using a vehicle to transport a dirk
knife and a police baton from one home to another
constituted a substantial burden on the defendant’s sec-
ond amendment rights, thereby requiring heightened
scrutiny of the regulatory scheme.41
Although neither the state nor the defendant has iden-
tified a case that is directly on point factually with the
present one, it is evident that the prohibition against
transporting a dirk knife and a police baton to a new
home constitutes a significant restriction on the right
to possess those weapons in that new home. Indeed,
aside from an outright ban on possessing those weap-
ons, it is difficult to conceive of a greater abridgement
of that right than a restriction that bars the use of a
vehicle to transport either of those weapons from one
home to another. Moreover, under § 29-38, it is unlawful
for an ordinary citizen, like the defendant, to transport
those weapons from the place of purchase to the pur-
chaser’s home.42 As a consequence, the statute’s com-
plete proscription against using a vehicle to transport
the two protected weapons deprives their owner of any
realistic opportunity either to bring them home after
they have been purchased or to move them from one
home to another. In fact, at oral argument before this
court, the state acknowledged that, in light of that statu-
tory prohibition, there may be no lawful means of doing
either.43 In contrast to other statutory schemes that
have been found not to substantially burden second
amendment rights; see, e.g., United States v. Decastro,
supra, 682 F.3d 168 (prohibition of 18 U.S.C. § 922 [a] [3]
on transporting into person’s state of residence firearms
acquired outside of state does not substantially burden
second amendment rights because it neither ‘‘keep[s]
someone from purchasing a firearm in [his or] her home
state, which is presumptively the most convenient place
to buy anything’’ nor ‘‘bar[s] purchases from an out-of-
state supplier if the gun is first transferred to a licensed
gun dealer in the purchaser’s home state,’’ and, there-
fore, there were ‘‘ample alternative means of acquiring
firearms for self-defense purposes’’); § 29-38’s categori-
cal ban on transporting dirk knives and police batons
from one home to another operates as a significant
infringement on the defendant’s right to keep and bear
arms in his home, such that heightened judicial scrutiny
of that prohibition is warranted. See Heller v. District of
Columbia, supra, 670 F.3d 1255, 1257 (court subjected
firearm registration requirements to heightened scru-
tiny because they made ‘‘it considerably more difficult
for a person lawfully to acquire and keep a firearm,
including a handgun, for the purpose of self-defense in
the home’’); United States v. Booker, 644 F.3d 12, 25
(1st Cir. 2011) (statutory ban on possession of firearm
by person convicted of misdemeanor crime of domestic
violence implicates right to bear arms under second
amendment and thereby triggers heightened scrutiny),
cert. denied, U.S. , 132 S. Ct. 1538, 182 L. Ed.
2d 175 (2012); United States v. Chester, 628 F.3d 673,
681–82 (4th Cir. 2010) (same).
We also must determine, therefore, whether the statu-
tory ban on transporting dirk knives and police batons
from a former residence to a current residence satisfies
the appropriate level of means-end scrutiny. As a gen-
eral matter, the applicable level of scrutiny depends on
‘‘how close the law comes to the core of the [s]econd
[a]mendment right and the severity of the law’s burden
on the right.’’ Ezell v. Chicago, supra, 651 F.3d 703;
accord Peruta v. San Diego, 742 F.3d 1144, 1191 (9th
Cir. 2014) (Thomas, J., dissenting); Peterson v. Marti-
nez, 707 F.3d 1197, 1218 (10th Cir. 2013) (Lucero, J.,
concurring); see also Heller v. District of Columbia,
supra, 670 F.3d 1257 (level of scrutiny applicable under
second amendment ‘‘depends on the nature of the con-
duct being regulated and the degree to which the chal-
lenged law burdens the right’’ [internal quotation marks
omitted]); United States v. Chester, supra, 628 F.3d
682 (same). ‘‘In analyzing the first prong of [this test,
namely], the extent to which the law burdens the core
of the [s]econd [a]mendment right, [the court relies] on
Heller’s holding that the [s]econd [a]mendment has the
core lawful purpose of self-defense, [District of Colum-
bia v. Heller, supra, 554 U.S. 630], and that . . . [the
primary interest protected by the second amendment
is] the right of law-abiding, responsible citizens to use
arms in defense of hearth and home. [Id., 635] . . . .
‘‘In analyzing the second prong of [the test, namely],
the extent to which a challenged prohibition burdens
the [s]econd [a]mendment right . . . laws which regu-
late only the manner in which persons may exercise
their [s]econd [a]mendment rights are less burdensome
than those [that] bar firearm [or other weapon] posses-
sion completely. . . . [Thus] . . . regulations [that]
leave open alternative channels for self-defense are less
likely to place a severe burden on the [s]econd [a]mend-
ment right than those [that] do not. Cf. [United States
v.] Marzzarella, [supra, 614 F.3d 97] (applying interme-
diate scrutiny to a regulation [that] leaves a person free
to possess any otherwise lawful firearm he chooses—
[as] long as it bears its original serial number).’’ (Cita-
tions omitted; emphasis in original; internal quotation
marks omitted.) Jackson v. San Francisco, United
States Circuit Court of Appeals, Docket No. 12-17803
(9th Cir. March 25, 2014).
The statutory restriction in the present case strikes
close to the core protection of the second amendment
because it erects a virtual bar to possessing certain
protected weapons, including dirk knives and police
batons, in the home for the purpose of self-defense. On
the other hand, this restriction on the right to have
those weapons in the home does not adversely affect
an individual’s ability to do the same with respect to a
myriad of other weapons that fall within the purview
of the second amendment. For example, under § 29-38
(a), any person may transport a pistol or revolver in a
motor vehicle if that person has a proper permit, and
§ 29-38 (b) (4) permits the transportation by vehicle of
an unloaded BB. gun if it is stored in the trunk or kept
in a locked container other than the glove compartment
or console. Similarly, under § 29-38 (b) (5) (D), an indi-
vidual may use a vehicle to transport a knife, the edged
portion of the blade of which is four inches or more in
length, for the purpose of removing one’s household
goods from one place to another. Indeed, as the state
concedes, the defendant was entitled to use his car to
transport his machetes, sword and long dragon knife
to his new home. The availability of these and other
options for possessing protected weapons in the home
mitigates the adverse effect of the statutory prohibition
against transporting dirk knives and police batons from
one home to another.
Although the defendant advocates for the application
of strict scrutiny, he does not support his argument
with relevant case law applying that level of review in
the second amendment context. In light of the nature
and extent of the restrictions at issue in the present
case, we agree with the state that intermediate scrutiny
represents the applicable level of constitutional review.
‘‘[A]lthough addressing varied and divergent laws,
courts throughout the country have nearly universally
applied some form of intermediate scrutiny in the [s]ec-
ond [a]mendment context.’’44 New York State Rifle &
Pistol Assn., Inc. v. Cuomo, 990 F. Supp. 2d 349, 366
(W.D.N.Y. 2013).
Accordingly, we turn to the question of whether § 29-
38, as applied to the facts of the present case, survives
intermediate scrutiny. To establish that it does, the state
must demonstrate that the absolute ban on transporting
dirk knives and police batons is ‘‘substantially related
to an important government objective.’’ Clark v. Jeter,
486 U.S. 456, 461, 108 S. Ct. 1910, 100 L. Ed. 2d 465(1988); see also Kachalsky v. Westchester, supra, 701
F.3d 96 (‘‘[challenged law must be] substantially related
to the achievement of an important governmental inter-
est’’). ‘‘In making this determination, substantial defer-
ence to the predictive judgments of [the legislature] is
warranted. . . . The [United States] Supreme Court
has long granted deference to legislative findings
regarding matters that are beyond the competence of
courts. . . . In the context of firearm [or weapon] regu-
lation, the legislature is far better equipped than the
judiciary to make sensitive public policy judgments
(within constitutional limits) concerning the dangers in
carrying firearms [or other weapons] and the manner
to combat those risks. . . . Thus, [the court’s] role is
only to [ensure] that, in formulating its judgments, [the
legislature] has drawn reasonable inferences based on
substantial evidence. . . . Unlike [with] strict scrutiny
review, [the court is] not required to ensure that the
legislature’s chosen means [are] narrowly tailored or
the least restrictive available means to serve the stated
governmental interest. To survive intermediate scru-
tiny, the fit between the challenged regulation need
only be substantial, not perfect.’’ (Citations omitted;
internal quotation marks omitted.) Kachalsky v. West-
chester, supra, 97; see also Kerrigan v. Commissioner
of Public Health, 289 Conn. 135, 160–61, 957 A.2d 407(2008).
Nevertheless, to establish the requisite substantial
relationship between the purpose to be served by the
statutory provision and the means employed to achieve
that end, the explanation that the state proffers in
defense of the provision must be ‘‘exceedingly persua-
sive.’’ (Internal quotation marks omitted.) United States
v. Virginia, 518 U.S. 515, 533, 116 S. Ct. 2264, 135 L.
Ed. 2d 735 (1996). Moreover, ‘‘[t]he justification must
be genuine, not hypothesized or invented post hoc in
response to litigation. And it must not rely on overbroad
generalizations . . . .’’ Id. The reason for this require-
ment is to ensure ‘‘that the validity of [the challenged
statute] is determined through reasoned analysis rather
than through the mechanical application of traditional,
often inaccurate, assumptions.’’ (Internal quotation
marks omitted.) State v. Dyous, 307 Conn. 299, 318,
53 A.3d 153 (2012). ‘‘[I]n judging the closeness of the
relationship between the means chosen . . . and the
government’s interest, three interrelated concepts must
be considered: the factual premises [that] prompted the
legislative enactment, the logical connection between
the remedy and those factual premises, and the breadth
of the remedy chosen.’’ (Internal quotation marks omit-
ted.) Id., 327.
Post-Heller case law supports the commonsense con-
clusion that the core right to possess a protected
weapon in the home for self-defense necessarily entails
the right, subject to reasonable regulation, to engage in
activities necessary to enable possession in the home.45
Thus, the safe transportation of weapons protected by
the second amendment is an essential corollary of the
right to possess them in the home for self-defense when
such transportation is necessary to effectuate that
right.46 Conversely, in rejecting second amendment
challenges to measures prohibiting the possession of
handguns outside the home, courts have deemed it sig-
nificant that those regulatory schemes contained provi-
sions including, in addition to the right to possess
handguns in the home, limited exceptions permitting
the transportation of handguns between homes, or
between home and dealer or repairer.47
We conclude that the state has not provided sufficient
reason for extending the ban on transporting dirk knives
and police batons to a scenario, like the present one,
in which the owner of those weapons uses his vehicle
to move them from a former residence to a new one.
Indeed, the state has proffered no such justification; it
relies, rather, on the assertion that § 29-38 ‘‘substantially
furthers its public safety objective by imposing a permit
requirement on having pistols and revolvers in the car
and by identifying a few inherently dangerous weapons,
among them a dirk knife and a police baton, that are
illegal to carry or transport under any circumstances.’’
Section 29-38 contains a variety of limited exceptions,
however, permitting the transportation of other weap-
ons that the legislature also has determined to be dan-
gerous, and some of those exceptions pertain to
weapons that are significantly more lethal than dirk
knives and police batons, such as handguns and long
knives, including machetes and swords. This fact
defeats any claim that a similarly limited exception
allowing the transportation of dirk knives and police
batons from one home to another would frustrate or
impede the concededly compelling governmental inter-
est of ensuring the safety of the public and police offi-
cers. See, e.g., United States v. Marzzarella, supra, 614
F.3d 99 (‘‘[i]f a regulation fails to cover a substantial
amount of conduct implicating the asserted compelling
interest, its underinclusiveness can be evidence that
the interest is not significant enough to justify the regu-
lation’’). As those existing exceptions demonstrate, the
legislature is fully capable of adopting reasonable regu-
latory measures, in the interest of public safety, short
of a ban on transporting dirk knives and police batons
from one residence to another, while also accommodat-
ing the defendant’s second amendment right to keep
those weapons in the home for self-defense. See, e.g.,
Commonwealth v. Reyes, 464 Mass. 245, 256–57, 982
N.E.2d 504 (2013) (rejecting second amendment chal-
lenge to statute requiring that firearm kept in motor
vehicle be stored in locked container or be equipped
with mechanical lock or other safety device). As writ-
ten, however, § 29-38 is not substantially related to that
public safety interest because its ban on transporting
dirk knives and police batons extends unnecessarily to
conduct that is entitled to second amendment protec-
tion.48 The defendant has established, therefore, that
his conviction under § 29-38 (a) for using his Jeep to
transport a dirk knife and police baton to his new resi-
dence violated his second amendment right to keep and
bear arms. Consequently, his conviction cannot stand.
We turn, then, to the appellate remedy. ‘‘It is well
established that this court has a duty to construe stat-
utes, whenever possible, to avoid constitutional infirmi-
ties . . . . [W]hen called [on] to interpret a statute, we
will search for an effective and constitutional construc-
tion that reasonably accords with the legislature’s
underlying intent. . . . This principle directs us to
search for a judicial gloss . . . that will effect the legis-
lature’s will in a manner consistent with constitutional
safeguards.’’ (Citations omitted; internal quotation
marks omitted.) State v. Cook, 287 Conn. 237, 245, 947
A.2d 307, cert. denied, 555 U.S. 970, 129 S. Ct. 464, 172
L. Ed. 2d 328 (2008); see also, e.g., State v. Indrisano,
228 Conn. 795, 805, 640 A.2d 986 (1994) (‘‘we may also
add interpretive gloss to a challenged statute in order
to render it constitutional’’ [internal quotation marks
omitted]). In the present case, however, even if we were
to place a gloss on § 29-38 to save it from constitutional
infirmity by excepting from its purview the transporta-
tion of protected weapons, including dirk knives and
police batons, from one residence to another, the state
has conceded that that is what the defendant was doing
when he was found to have those weapons in his vehi-
cle. As a result, placing such a gloss on § 29-38 would
not provide the state with a lawful means of establishing
that the defendant’s possession of the dirk knife and
police baton in his vehicle violated § 29-38.
Furthermore, we already have determined that § 29-
38 plainly does not except such conduct from its reach.
See part I B of this opinion. We previously have declined
to place a gloss on a statute that contradicts its plain
meaning; Keller v. Beckenstein, 305 Conn. 523, 536–37,
46 A.3d 102 (2012); and we see no reason to do so in
the present case. Indeed, following such an approach
would be incompatible with the principle that it is
appropriate to place a judicial gloss on a statutory provi-
sion only if that gloss comports with the legislature’s
underlying intent. See State v. Cook, supra, 287 Conn.
245. When, as in the present case, however, such a gloss
is not consistent with the intent of the legislature as
expressed in the clear statutory language, we will not
rewrite the statute so as to render it constitutional.
Thus, because § 29-38 is unconstitutional as applied to
the facts of this case, the defendant is entitled to a
judgment of acquittal on both of the charges for which
he was convicted.
Finally, we wish to emphasize that our holding is a
narrow one and that the legislature is free to regulate the
carrying and transportation of all weapons, including, of
course, dirk knives and police batons, in the interest
of public safety. Nothing in this opinion is meant to
limit that broad regulatory authority, except insofar as
the legislature may seek to use that authority in a man-
ner that cannot be squared with the rights protected by
the second amendment. Because the existing statutory
scheme places an undue burden on the defendant’s
right to possess and keep his dirk knife and police baton
in his home by making it impossible for him to transport
those weapons there, that scheme does not pass consti-
tutional muster as applied to the defendant’s conduct
in the present case.
The judgment is reversed and the case is remanded
with direction to render judgment of acquittal on both
counts of having a weapon in a motor vehicle.
In this opinion the other justices concurred.
1
General Statutes (Rev. to 2009) § 29-38 provides: ‘‘(a) Any person who
knowingly has, in any vehicle owned, operated or occupied by such person,
any weapon, any pistol or revolver for which a proper permit has not been
issued as provided in section 29-28 or any machine gun which has not been
registered as required by section 53-202, shall be fined not more than one
thousand dollars or imprisoned not more than five years or both, and the
presence of any such weapon, pistol or revolver, or machine gun in any
vehicle shall be prima facie evidence of a violation of this section by the
owner, operator and each occupant thereof. The word ’weapon’, as used in
this section, means any BB. gun, any blackjack, any metal or brass knuckles,
any police baton or nightstick, any dirk knife or switch knife, any knife
having an automatic spring release device by which a blade is released from
the handle, having a blade of over one and one-half inches in length, any
stiletto, any knife the edged portion of the blade of which is four inches or
over in length, any martial arts weapon or electronic defense weapon, as
defined in section 53a-3, or any other dangerous or deadly weapon or
instrument.
‘‘(b) The provisions of this section shall not apply to: (1) Any officer
charged with the preservation of the public peace while engaged in the
pursuit of such officer’s official duties; (2) any security guard having a baton
or nightstick in a vehicle while engaged in the pursuit of such guard’s official
duties; (3) any person enrolled in and currently attending a martial arts
school, with official verification of such enrollment and attendance, or any
certified martial arts instructor, having any such martial arts weapon in a
vehicle while traveling to or from such school or to or from an authorized
event or competition; (4) any person having a BB. gun in a vehicle provided
such weapon unloaded and stored in the trunk of such vehicle or in a locked
container other than the glove compartment or console; and (5) any person
having a knife, the edged portion of the blade of which is four inches or
over in length, in a vehicle if such person is (A) any member of the armed
forces of the United States, as defined in section 27-103, or any reserve
component thereof, or of the armed forces of the state, as defined in section
27-2, when on duty or going to or from duty, (B) any member of any military
organization when on parade or when going to or from any place of assembly,
(C) any person while transporting such knife as merchandise or for display
at an authorized gun or knife show, (D) any person while lawfully removing
such person’s household goods or effects from one place to another, or
from one residence to another, (E) any person while actually and peaceably
engaged in carrying any such knife from such person’s place of abode or
business to a place or person where or by whom such knife is to be repaired,
or while actually and peaceably returning to such person’s place of abode
or business with such knife after the same has been repaired, (F) any person
holding a valid hunting, fishing or trapping license issued pursuant to chapter
490 or any salt water fisherman while having such knife in a vehicle for
lawful hunting, fishing or trapping activities, or (G) any person participating
in an authorized historic reenactment.’’
All references in this opinion to § 29-38 are to the 2009 revision unless
otherwise noted.
2
The defendant suffered a traumatic brain injury as the result of a mine
explosion while serving overseas in Kosovo. He testified that this prior
injury exacerbated any subsequent head trauma, including the trauma that
he suffered as a result of the automobile accident on July 22, 2010.
3
The jury apparently agreed with the defendant’s contention that he was
transporting the two machetes, the dragon knife and the sword in accordance
with the moving exception of § 29-38 (b) (5) (D). See footnote 1 of this
opinion. It is this finding by the jury that provides the basis for the state’s
concession that the defendant also was transporting the dirk knife and
police baton from his former residence to his new residence.
4
The defendant appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
5
We note that the state and the defendant agree that there is no statutory
prohibition against owning a dirk knife or a police baton and storing the
weapon in one’s home. As we explain more fully hereinafter, however; see
part I B of this opinion; in State v. Campbell, 300 Conn. 368, 378–80, 13 A.3d
661 (2011), this court construed General Statutes § 53-206, which prohibits
a person from carrying certain enumerated dangerous weapons, as prohib-
iting the possession of certain weapons, including dirk knives and police
batons, either inside or outside the home. Moreover, § 29-38 expressly pro-
hibits the possession of either weapon in a vehicle.
6
The defendant also raises a claim of instructional impropriety predicated
on the contention that the trial court’s jury instructions were inadequate to
preserve his second amendment rights. In view of our conclusion that, under
the facts of this case, the defendant’s conviction for transporting the dirk
knife and police baton is unconstitutional under the second amendment,
we need not address the defendant’s instructional claim.
7
California Penal Code § 16470 (Deering 2012) provides: ‘‘As used in this
part, ‘dirk’ or ‘dagger’ means a knife or other instrument with or without a
handguard that is capable of ready use as a stabbing weapon that may inflict
great bodily injury or death. A nonlocking folding knife, a folding knife that
is not prohibited by Section 21510, or a pocketknife is capable of ready use
as a stabbing weapon that may inflict great bodily injury or death only if
the blade of the knife is exposed and locked into position.’’ We note that
the defendant cites Cal. Penal Code § 12020 (c) (24) (Deering 2008), which
was transferred, without substantive change, to Cal. Penal Code § 16470in 2012.
8
General Statutes § 53-206 provides: ‘‘(a) Any person who carries upon
his or her person any BB. gun, blackjack, metal or brass knuckles, or any
dirk knife, or any switch knife, or any knife having an automatic spring
release device by which a blade is released from the handle, having a blade
of over one and one-half inches in length, or stiletto, or any knife the edged
portion of the blade of which is four inches or more in length, any police
baton or nightstick, or any martial arts weapon or electronic defense weapon,
as defined in section 53a-3, or any other dangerous or deadly weapon or
instrument, shall be fined not more than five hundred dollars or imprisoned
not more than three years or both. Whenever any person is found guilty of
a violation of this section, any weapon or other instrument within the provi-
sions of this section, found upon the body of such person, shall be forfeited
to the municipality wherein such person was apprehended, notwithstanding
any failure of the judgment of conviction to expressly impose such forfeiture.
‘‘(b) The provisions of this section shall not apply to (1) any officer charged
with the preservation of the public peace while engaged in the pursuit of
such officer’s official duties; (2) the carrying of a baton or nightstick by a
security guard while engaged in the pursuit of such guard’s official duties;
(3) the carrying of a knife, the edged portion of the blade of which is four
inches or more in length, by (A) any member of the armed forces of the
United States, as defined in section 27-103, or any reserve component thereof,
or of the armed forces of the state, as defined in section 27-2, when on duty
or going to or from duty, (B) any member of any military organization when
on parade or when going to or from any place of assembly, (C) any person
while transporting such knife as merchandise or for display at an authorized
gun or knife show, (D) any person who is found with any such knife con-
cealed upon one’s person while lawfully removing such person’s household
goods or effects from one place to another, or from one residence to another,
(E) any person while actually and peaceably engaged in carrying any such
knife from such person’s place of abode or business to a place or person
where or by whom such knife is to be repaired, or while actually and
peaceably returning to such person’s place of abode or business with such
knife after the same has been repaired, (F) any person holding a valid
hunting, fishing or trapping license issued pursuant to chapter 490 or any salt
water fisherman carrying such knife for lawful hunting, fishing or trapping
activities, or (G) any person while participating in an authorized historic
reenactment; (4) the carrying by any person enrolled in or currently
attending, or an instructor at, a martial arts school of a martial arts weapon
while in a class or at an authorized event or competition or while transporting
such weapon to or from such class, event or competition; (5) the carrying
of a BB. gun by any person taking part in a supervised event or competition
of the Boy Scouts of America or the Girl Scouts of America or in any
other authorized event or competition while taking part in such event or
competition or while transporting such weapon to or from such event or
competition; and (6) the carrying of a BB. gun by any person upon such
person’s own property or the property of another person provided such
other person has authorized the carrying of such weapon on such property,
and the transporting of such weapon to or from such property.’’
9
By way of example, the defendant cites to the fourth edition of Webster’s
New World Dictionary which, he asserts, defines ‘‘baton’’ as ‘‘a staff serving
as a symbol of office,’’ ‘‘a slender stick used in directing music,’’ ‘‘a metal
rod twirled by a drum major,’’ and ‘‘a short, light rod used in relay races.’’
10
Other definitions of the term ‘‘baton’’ are: ‘‘a staff borne as a symbol
of office,’’ ‘‘a narrow heraldic bend,’’ ‘‘a slender rod with which a leader
directs a band or orchestra,’’ ‘‘a hollow cylinder carried by each member
of a relay team and passed to the succeeding runner,’’ and ‘‘a hollow metal
rod with a weighted bulb at one or both ends that is flourished or twirled
by a drum major or drum majorette . . . .’’ Merriam-Webster’s Collegiate
Dictionary, supra, p. 103. Although the dictionary on which the defendant
relies provides only these definitions and contains no mention of a police
baton; see footnote 9 of this opinion; that dictionary is a more general
reference source that lacks the comprehensive coverage of dictionaries that
ordinarily are more appropriate for use in accordance with § 1-1.
11
In 1999, the legislature amended General Statutes (Rev. to 1999) § 29-
38 and General Statutes (Rev. to 1999) § 53-206 to include within their
purview ‘‘any police baton or nightstick . . . .’’ Public Acts 1999, No. 99-
212, §§ 12 and 14 (P.A. 99-212). The only commentary in the legislative
history with respect to this portion of P.A. 99-212 was a colloquy during
the debate in the House of Representatives between Representatives Ronald
S. San Angelo and Michael P. Lawlor clarifying that a police officer may
possess his or her nightstick or police baton at home because the statutory
exception for law enforcement ‘‘also encompasses when [a police officer
is] at home. [As] long as he was not using those dangerous weapons in any
fashion that was inconsistent with his official duties, either on duty or off
duty, that would be okay.’’ 42 H.R. Proc., Pt. 15, 1999 Sess., p. 5454, remarks
of Representative San Angelo.
12
The defendant testified at trial that the baton seized from his vehicle
is a metal extension tube that he had used as an army medic for splinting
leg fractures. Nevertheless, as with the dirk knife, whether the state estab-
lished that the item at issue was a prohibited police baton gave rise to a
question of fact for the jury; see, e.g., Richards v. Commonwealth, supra,18 Va. App. 246 n.2; cf. State v. Wilchinski, supra, 242 Conn. 228; and the
defendant makes no claim that the evidence was insufficient to support the
jury’s finding that he had a police baton in his vehicle in violation of § 29-
38 (a). We also note that the mere fact that someone uses a prohibited
weapon in a manner other than that for which it is manufactured would
not alter the classification of the item.
13
See footnote 8 of this opinion.
14
See State v. Campbell, 116 Conn. App. 440, 445 n.3, 975 A.2d 757 (2009)
(‘‘the [trial] court [improperly] characterized the residence or place of abode
exception as the second element of the crime’’ under § 53-206 [b] because
‘‘[t]he claim that a defendant is within his residence or place of abode while
possessing the weapon is a defense to the crime of carrying a dangerous
weapon, not an element’’), aff’d, 300 Conn. 368, 13 A.3d 661 (2011); see also
State v. Valinski, 254 Conn. 107, 125, 756 A.2d 1250 (2000) (‘‘the state
must disprove an exception to culpability as an element of the crime when
charging the defendant under a statute in which that exception is located
within the enacting or prohibiting clause . . . whereas the defendant bears
the burden of persuasion if the exception is not found within the enacting
or prohibiting clause’’ [citation omitted]).
15
In State v. Sealy, supra, 208 Conn. 689, we upheld the conviction of the
defendant, Anthony Sealy, of carrying a dangerous weapon in violation of
General Statutes (Rev. to 1985) § 53-206 (a), arising from Sealy’s possession
of a butcher knife with a blade that was four and one-half inches long in
the common hallway of a small apartment building in which he resided. Id.,
691, 696. We rejected Sealy’s claim, predicated on the moving exception of
that provision, that the trial court improperly had instructed the jury that
‘‘[General Statutes (Rev. to 1985)] § 53-206 (a) would be violated if [Sealy]
had the knife outside his apartment in a common area.’’ Id., 692. Examining
the statutory moving exception in General Statutes (Rev. to 1985) § 53-206
(a), we observed that ‘‘[i]mplicit in this provision is an exception for carrying
a weapon in an individual’s residence or abode, and a recognition of the
protected zone of privacy in his or her dwelling.’’ Id., 693; see also id., 693 n.2
(noting that ‘‘General Statutes [Rev. to 1985] § 53-206 [a] does not expressly
except from its terms the carrying of a dangerous weapon in one’s dwelling
or abode’’ but that it was ‘‘an implied exception’’). The court, however,
applied search and seizure privacy principles to the facts of the case and
rejected Sealy’s argument that ‘‘his exclusive use and control over this area
rendered the landing and stairway part of his residence and, therefore, [that]
his carrying a weapon in this area was exempt from the operation of [General
Statutes (Rev. to 1985)] § 53-206 (a).’’ Id., 693.
16
In support of his claim that limiting the exceptions of subparagraphs
(D) and (E) of § 53-206 (b) (3) to long knives would be unworkable, Campbell
relied on the martial arts exception set forth in § 53-206 (b) (4), arguing
that that exception, which ‘‘permits ‘the carrying by any person enrolled in
or currently attending, or an instructor at, a martial arts school of a martial
arts weapon while in a class or at an authorized event or competition or
while transporting such weapon to or from such class, event or competition’
. . . would be meaningless if such a person could not carry a martial arts
weapon at home.’’ State v. Campbell, supra, 300 Conn. 379. In rejecting
Campbell’s claim that the exceptions of subparagraphs (D) and (E) of § 53-
206 (b) (3) would be unworkable if applied only to long knives, we construed
the exceptions set forth in § 53-206 (b), including the martial arts exception,
as implicitly permitting the storing and carrying of that weapon insofar as
it was necessary to do so to ensure that the exception would not be rendered
unworkable or meaningless. See id., 379–80. Thus, by way of example, we
explained that ‘‘a martial arts student who carried a martial arts weapon
[on] his or her person while transporting it to and from classes or other
events, but kept the weapon stored at home, would not be violating the
statute.’’ Id., 379.
17
It is important to note, however, that, in Campbell, we declined to
address Campbell’s claim on appeal that the implicit abode exception that
we recognized in State v. Sealy, supra, 208 Conn. 693, was constitutionally
required, explaining that, ‘‘[t]o the extent that [Campbell] claims that § 53-
206 is unconstitutional as applied to persons who carry dangerous weapons
in their residence or place of abode, the claim was not preserved before
the trial court, and [Campbell] has not sought review under State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989). Accordingly, we decline to
review it.’’ (Footnote omitted.) State v. Campbell, supra, 300 Conn. 382.
18
As we explain more fully hereinafter; see part II of this opinion; although
we stated in Campbell that, under § 53-206, the legislature has prohibited
the carrying of certain weapons even in the home; see State v. Campbell,
supra, 300 Conn. 378; that prohibition may violate the second amendment
depending on the weapon at issue.
19
The defendant explains that he was an active member of the military
at the time of his arrest, and that he was taking martial arts classes, as well.
We agree with the state, however, that, pursuant to Campbell, this evidence
is irrelevant to our analysis because neither of the exceptions in § 29-38 (b)
that are applicable to military service or to the performance of martial arts
pertains to dirk knives or police batons.
20
The court in Heller observed that the parties ‘‘set out very different
interpretations of the [second] [a]mendment. [The] [p]etitioners . . . [pos-
ited] that it protects only the right to possess and carry a firearm in connec-
tion with militia service. . . . [The] [r]espondent argue[d] that it protects
an individual right to possess a firearm unconnected with service in a militia,
and to use that arm for traditionally lawful purposes, such as self-defense
within the home.’’ (Citations omitted.) District of Columbia v. Heller, supra,
554 U.S. 577.
21
The court emphasized that its reading of the operative clause in this
manner was consistent with the prefatory clause, observing that: ‘‘It is
therefore entirely sensible that the [s]econd [a]mendment’s prefatory clause
announces the purpose for which the right was codified: to prevent elimina-
tion of the militia. The prefatory clause does not suggest that preserving
the militia was the only reason Americans valued the ancient right; most
undoubtedly thought it even more important for self-defense and hunting.
But the threat that the new [f]ederal [g]overnment would destroy the citizens’
militia by taking away their arms was the reason that right—unlike some
other English rights—was codified in a written [c]onstitution.’’ District of
Columbia v. Heller, supra, 554 U.S. 599.
22
This second amendment analysis has its origins in the United States
Supreme Court’s first amendment jurisprudence, pursuant to which certain
speech is unprotected, and varying degrees of judicial scrutiny are applied
to speech depending on the nature of the speech at issue. See, e.g., Ezell
v. Chicago, 651 F.3d 684, 702 (7th Cir. 2011); United States v. Chester, 628
F.3d 673, 682 (4th Cir. 2010).
23
Beyond certain weapons themselves, the court in Heller also placed
outside the protection of the second amendment other ‘‘longstanding prohibi-
tions’’ on firearms possession, emphasizing that ‘‘nothing in [its] opinion
should be taken to cast doubt on longstanding prohibitions on the possession
of firearms by felons and the mentally ill, or laws forbidding the carrying
of firearms in sensitive places such as schools and government buildings,
or laws imposing conditions and qualifications on the commercial sale of
arms.’’ District of Columbia v. Heller, supra, 554 U.S. 626–27; see also id.,627 n.26 (describing such proscriptions as ‘‘presumptively lawful regulatory
measures only as examples; [the] list does not purport to be exhaustive’’).
These prohibitions have been characterized as ‘‘exceptions to the right to
bear arms.’’ United States v. Marzzarella, supra, 614 F.3d 91; see also United
States v. Rozier, 598 F.3d 768, 771 (11th Cir.) (concluding that felons are
‘‘disqualified from the exercise of [s]econd [a]mendment rights [under
Heller]’’ [internal quotation marks omitted]), cert. denied, 560 U.S. 958, 130
S. Ct. 3399, 177 L. Ed. 2d 313 (2010); United States v. Vongxay, 594 F.3d
1111, 1115 (9th Cir.) (person maintains right to possess firearm in home for
self-defense, provided he is ‘‘not disqualified from the exercise of [s]econd
[a]mendment rights’’ [internal quotation marks omitted]), cert. denied,
U.S. , 131 S. Ct. 294, 178 L. Ed. 2d 193 (2010).
24
For example, in explaining the meaning of the word ‘‘arms,’’ the United
States Supreme Court noted that ‘‘[t]he term was applied, then as now, to
weapons that were not specifically designed for military use and were not
employed in a military capacity’’; District of Columbia v. Heller, supra, 554
U.S. 581; observing that, ‘‘[a]lthough one founding-era thesaurus limited
‘arms’ (as opposed to ‘weapons’) to ‘instruments of offence generally made
use of in war,’ even that source stated that all firearms constituted ‘arms.’ ’’
Id.; see also id., 582 (rejecting as ‘‘bordering on the frivolous’’ argument
‘‘that only those arms in existence in the [eighteenth] century are protected
by the [s]econd [a]mendment,’’ and concluding that ‘‘the [s]econd [a]mend-
ment [on its face] extends . . . to all instruments that constitute bearable
arms, even those that were not in existence at the time of the founding’’).
25
Indeed, in Heller, the court emphasized that Miller’s ‘‘holding is not
only consistent with, but positively suggests, that the [s]econd [a]mendment
confers an individual right to keep and bear arms (though only arms that
‘have some reasonable relationship to the preservation or efficiency of a
well regulated militia’). Had the [c]ourt [in Miller] believed that the [s]econd
[a]mendment protects only those serving in the militia, it would have been
odd to examine the character of the weapon rather than simply note that
the two crooks were not militiamen.’’ District of Columbia v. Heller, supra,
554 U.S. 622.
26
The Oregon state constitution provides in relevant part: ‘‘The people
shall have the right to bear arms for the defence of themselves, and the
State . . . .’’ Or. Const., art. I, § 27.
27
Consistent with the analysis of the United States Supreme Court in
Heller, the Oregon Supreme Court in Kessler explained: ‘‘In the colonial and
revolutionary war era, weapons used by militiamen and weapons used in
defense of person and home were one and the same. A colonist usually had
only one gun [that] was used for hunting, protection, and militia duty, plus
a hatchet, sword, and knife. . . . When the revolutionary war began, the
colonists came equipped with their hunting muskets or rifles, hatchets,
swords, and knives. The colonists suffered a severe shortage of firearms in
the early years of the war, so many soldiers had to rely primarily on swords,
hatchets, knives, and pikes (long staffs with a spear head). . . .
‘‘Therefore, the term ‘arms’ as used by the drafters of the constitutions
probably was intended to include those weapons used by settlers for both
personal and military defense. The term ‘arms’ was not limited to firearms,
but included several [hand-carried] weapons commonly used for defense.
The term ‘arms’ would not have included [a] cannon or other heavy ordnance
not kept by militiamen or private citizens.’’ (Citations omitted.) State v.
Kessler, supra, 289 Or. 368. Noting the impact of advances in technology
on the development of weaponry, the court emphasized that, ‘‘[w]hen the
constitutional drafters referred to an individual’s ‘right to bear arms,’ the
arms used by the militia and for personal protection were basically the same
weapons. Modern weapons used exclusively by the military are not ‘arms’
[that] are commonly possessed by individuals for defense, [and] therefore,
the term ‘arms’ in the [Oregon] constitution does not include such weapons.’’
Id., 369; see also id. (‘‘advanced weapons of modern warfare have never
been intended for personal possession and protection’’). After observing
that the state constitutional provision at issue expressly ‘‘guarantees a right
to bear arms for defense of themselves, and the [s]tate’’; (internal quotation
marks omitted) id.; the court further emphasized that the ‘‘term ‘arms’ in
[the Oregon] constitution therefore would include weapons commonly used
for either purpose, even if a particular weapon is unlikely to be used as a
militia weapon.’’ Id. Accordingly, the court held in Kessler that the state
was constitutionally barred from prohibiting the possession of a billy club
in the home because the court’s ‘‘historical analysis of [a]rticle I, [§] 27, [of
the Oregon constitution] indicates that the drafters intended arms to include
the hand-carried weapons commonly used by individuals for personal
defense. The club is an effective, hand-carried weapon [that] cannot logically
be excluded from this term.’’ (Internal quotation marks omitted.) Id., 372.
28
The court emphasized, however, that its ‘‘decision does not mean [that]
individuals have an unfettered right to possess or use constitutionally pro-
tected arms in any way they please. The legislature may, if it chooses to
do so, regulate possession and use. . . . [The] court recognizes the seri-
ousness with which the legislature views the possession of certain weapons,
especially [switchblades]. The problem here is that [Oregon’s dangerous
weapons statute] absolutely proscribes the mere possession or carrying of
such arms. This the [Oregon] constitution does not permit.’’ (Citations omit-
ted; footnote omitted.) State v. Delgado, supra, 298 Or. 403–404.
29
We note that several other jurisdictions, in relatively recent cases, have
addressed constitutional challenges to particular restrictions on the carrying
or possession of fixed blade knives. They have done so, however, without
first deciding whether the knife at issue fell within the meaning of the term
‘‘arms’’ for purposes of the second amendment (or its state constitutional
analogue) because they assumed, either explicitly or implicitly, that it did
before considering whether the scope of the restriction at issue could with-
stand the appropriate level of state or federal constitutional scrutiny. See
Norton v. South Portland, supra, 831 F. Supp. 2d 362; People v. Mitchell,
209 Cal. App. 4th 1364, 1375–76, 148 Cal. Rptr. 3d 33 (2012), review denied,
California Supreme Court, Docket No. S206830 (Cal. January 23, 2013);
Griffin v. State, 47 A.3d 487, 490–91 (Del. 2012); Seattle v. Montana, 129
Wn. 2d 583, 590–95, 919 P.2d 1218 (1996).
30
The court in Wooden further observed that, even if it ‘‘assume[d] . . .
solely for the sake of argument, that Heller would embrace the kind of knife
that [Wooden] allegedly can prove she carried for use exclusively in self-
defense,’’ Wooden still could not establish plain error because, ‘‘[i]n finding
[s]econd [a]mendment protection for possessing certain kinds of guns in the
home for use in self-defense, the [United States] Supreme Court cautioned in
Heller that it did ‘not read the [s]econd [a]mendment to protect the right
of citizens to carry arms for any sort of confrontation,’ ’’ and the undisputed
facts of the case demonstrated that Wooden ‘‘was preparing for a confronta-
tion anywhere, not just in defense of her home. Indeed, the fight did not
occur anywhere near her home.’’ (Footnotes omitted.) Wooden v. United
States, supra, 6 A.3d 840.
31
See Aymette v. State, supra, 21 Tenn. (2 Hum.) 158 (‘‘[T]he arms, the
right to keep which is secured, are such as are usually employed in civilized
warfare, and that constitute the ordinary military equipment. . . . They
need not, for such a purpose, the use of those weapons which are usually
employed in private broils, and which are efficient only in the hands of the
robber and the assassin. These weapons would be useless in war.’’ [Emphasis
omitted.]); English v. State, supra, 35 Tex. 475 (second amendment ‘‘protects
only the right to ‘keep’ such ‘arms’ as are used for purposes of war, in
distinction from those [that] are employed in quarrels and broils, and fights
between maddened individuals’’ [internal quotation marks omitted]); State
v. Workman, supra, 35 W. Va. 373 (second amendment ‘‘must be held to
refer to the weapons of warfare to be used by the militia, such as swords,
guns, rifles, and muskets—arms to be used in defending the [s]tate and civil
liberty—and not to pistols, bowie-knives, brass knuckles, billies, and such
other weapons as are usually employed in brawls, street-fights, duels, and
affrays, and are only habitually carried by bullies, blackguards, and despera-
does, to the terror of the community and the injury of the [s]tate’’).
32
We note that Aymette, which rejected a state constitutional challenge
to a statute that prohibited the carrying of a concealed bowie knife, or
‘‘Arkansas tooth-pick’’; Aymette v. State, supra, 21 Tenn. (2 Hum.) 155,
161–62; lacks persuasive value in twenty-first century jurisprudence for the
additional reason that, in sharp contradiction to Heller, the court limited
the right to ‘‘bear arms’’ to weapons that, by their nature, must be carried
openly in the military context. See id., 160–61 (‘‘[The court rejects the
argument that] there can be no difference between a law prohibiting the
wearing [of] concealed weapons, and one prohibiting the wearing [of] them
openly. . . . [I]f they were not allowed to bear arms openly, they could not
bear them in their [defense] of the [s]tate at all. To bear arms in [defense]
of the [s]tate, is to employ them in war, as arms are usually employed by
civilized nations. The arms, consisting of swords, muskets, rifles, [etc.], must
necessarily be borne openly . . . so that a prohibition to bear them openly,
would be a denial of the right altogether. And as in their constitution, the
right to bear arms in [defense] of themselves, is coupled with the right to
bear them in [defense] of the [s]tate, we must understand the expressions
as meaning the same thing, and as relating to public, and not private; to the
common, and not the individual [defense].’’).
33
Because Heller is so critical to the determination of whether a particular
kind of knife falls within the purview of the second amendment’s right
to keep and bear arms—particularly Heller’s interpretation of the second
amendment as affording the right to bear arms for the purpose of self-
defense in the home—other, considerably more recent cases that predated
Heller also lack persuasive force. For example, in United States v. Nelsen, 859
F.2d 1318 (8th Cir. 1988), the court rejected a second amendment challenge to
the Switchblade Knife Act, 15 U.S.C. §§ 1241 through 1245, which prohibits,
inter alia, the interstate transportation or distribution of switchblade knives.
See id., 1320. The conclusion of the court in Nelsen, however, followed its
threshold determination that there was no merit to the claim of the defen-
dant, Douglas John Nelsen, of ‘‘a fundamental right to keep and bear arms
in that amendment,’’ citing United States v. Cruikshank, 92 U.S. 542, 23 L.
Ed. 588 (1876), and United States v. Miller, supra, 307 U.S. 174, among other
cases, for the proposition that ‘‘this has not been the law for at least 100
years.’’ United States v. Nelsen, supra, 1320; see id. (‘‘Nelsen has made no
arguments that the [Switchblade Knife] Act would impair any state militia,
and [the court does] not see how such a claim could plausibly be made’’);
see also id., 1319–20 (applying rational basis review in rejecting substantive
due process challenge to Switchblade Knife Act and concluding that Con-
gress had ‘‘reasonable basis’’ for passing act, including reducing use of
switchblades for criminal purposes and use of mail order businesses to
evade individual states’ switchblade bans); Crowley Cutlery Co. v. United
States, 849 F.2d 273, 278 (7th Cir. 1988) (‘‘[The defendant’s] arguments do
not come close to demonstrating the unconstitutionality of the Switchblade
Knife Act. . . . Switchblade knives are more dangerous than regular knives
because they are more readily concealable and hence more suitable for
criminal use. So it is rational to ban them, [but] not regular knives as well.
It would be absurd to suggest that the only lawful method of banning
switchblade knives would be to ban all knives, including we suppose the
plastic knives provided on airlines and in prison cafeterias.’’ [Citation omit-
ted.]). Because Nelsen rests on the premise that the second amendment
does not confer a fundamental individual right to bear arms—a premise
flatly rejected by the United States Supreme Court in Heller and McDonald
v. Chicago, supra, 561 U.S. 742—Nelsen is not persuasive authority.
34
We emphasize that our conclusion is limited to knives with characteris-
tics of the dirk knife at issue in the present case, and we do not decide
whether the second amendment embraces knives generally. But cf. D. Kopel
et al., supra, 47 U. Mich. J.L. Reform 203 (asserting categorical position that
all knives are subject to second amendment protection, and because they
all ‘‘are less dangerous than handguns, which may legally be carried, any
law that regulates the possession or carrying of knives, even the biggest
and scariest knives . . . is indefensible under intermediate scrutiny’’). Thus,
we do not consider whether the right to keep and bear arms under the second
amendment extends to other types of knives, including those identified in
§ 29-38 (a), such as switchblades and stilettos. Compare State v. Lacy,
supra, 903 N.E.2d 492 (switchblade knives are not protected under second
amendment), with State v. Delgado, supra, 298 Or. 403–404 (switchblade
knives protected under Oregon constitution).
35
The court observed that ‘‘[s]ome arms, although they have a valid use
for the protection of the [s]tate by organized and instructed soldiery in times
of war or riot, are too dangerous to be kept in a settled community by
individuals, and, in times of peace, find their use by bands of criminals and
have legitimate employment only by guards and police. Some weapons are
adapted and recognized by the common opinion of good citizens as proper
for private defense of person and property. Others are the peculiar tools of
the criminal. The police power of the [s]tate to preserve public safety and
peace and to regulate the bearing of arms cannot fairly be restricted to the
mere establishment of conditions under which all sorts of weapons may be
privately possessed, but it may take account of the character and ordinary
use of weapons and interdict those whose customary employment by individ-
uals is to violate the law. The power is, of course, subject to the limitation
that its exercise be reasonable and it cannot constitutionally result in the
prohibition of the possession of those arms [that], by the common opinion
and usage of law-abiding people, are proper and legitimate to be kept [on]
private premises for the protection of person and property.’’ People v. Brown,
supra, 253 Mich. 541.
36
The court noted that Kessler had conceded ‘‘that the [Oregon] legislature
could prohibit carrying a club in a public place in a concealed manner . . .
but . . . maintain[ed] that the legislature [could not] prohibit all persons
from possessing a club in the home. [Kessler] argued that a person may
prefer to keep in his home a billy club rather than a firearm to defend
against intruders.’’ State v. Kessler, supra, 289 Or. 372.
37
We note that, in People v. Davis, 214 Cal. App. 4th 1322, 155 Cal. Rptr.
3d 128 (2013), review denied, California Supreme Court, Docket No. S210601
(Cal. July 17, 2013), cert. denied, U.S. , 134 S. Ct. 659, 187 L. Ed. 2d
435 (2013), the California Court of Appeal determined that a jury reasonably
could have found that a baseball bat, modified with ‘‘holes in its handle
[that] could reasonably be seen to make it easier to grip,’’ and ‘‘[a] strap
[that] could make it easier to carry and to swing,’’ was a ‘‘billy’’ under a
California statute prohibiting the possession of a deadly weapon. Id., 1328–
29. The court then rejected the defendant’s second amendment claim, which
was predicated in large part on State v. Kessler, supra, 289 Or. 359. See
People v. Davis, supra, 1331–33. The court declined to reach the issue of
whether the modified bat fell within the meaning of the term ‘‘arms’’ for
purposes of the second amendment on the ground that, in contrast to Kessler
and Heller, ‘‘[the] defendant [in Davis] did not possess the modified bat in
his home . . . but was carrying it in his car. The constitutional right to
carry weapons outside the home was not addressed in Kessler [or] . . .
Heller, [the latter of] which narrowly held that the District of Columbia’s
ban on ‘possession [of lawful weapons] in the home violates the [s]econd
[a]mendment . . . .’ ’’ (Emphasis omitted.) Id., 1332. The court in Davis
further noted that the vehicle restriction does ‘‘not deprive persons of their
ability to defend themselves or their homes, because there are alternative
means to do so’’; id.; citing People v. Ellison, 196 Cal. App. 4th 1342, 1351,
128 Cal. Rptr. 3d 245 (2011), for the proposition that a statute that prohibits
the carrying of a concealed weapon in a vehicle ‘‘did not impair [the] ability
to defend hearth or home because it did not prohibit possession of [a]
loaded firearm in [the] home . . . [and] it did not prohibit [the] carrying
[of a] firearm for self-defense because it exempted [the] carrying [of a]
concealable firearm with [a] permit and [the] carrying [of a] firearm in [a]
locked container.’’ (Internal quotation marks omitted.) People v. Davis,
supra, 1332. Davis is distinguishable from the present case, however,
because, beyond the nature of the weapon involved, it did not involve a
claim that the defendant was using his motor vehicle to transport the weapon
from a former residence to a new one.
38
Cf. People v. Liscotti, 219 Cal. App. 4th Supp. 1, 5, 162 Cal. Rptr. 3d 225(App. Dept. Super. 2013) (‘‘[A] full-size[d] modified baseball bat weighted
with lead and wrapped in rope, does not appear . . . to fall into the classifi-
cation of a weapon that would normally be possessed by a law-abiding
citizen for a lawful purpose. Instead, it appears . . . to be a weapon [that],
by its very nature, increases the risk of violence in any given situation, is
a classic instrument of violence, and has a homemade criminal and improper
purpose. Likewise, it appears to be the type of tool that a brawl fighter or
a cowardly assassin would resort to using, designed for silent attacks, not
a weapon that would commonly be used by a good citizen. . . . [The court]
conclude[s] that possession of such a weapon is not protected by the [s]ec-
ond [a]mendment . . . .’’ [Citation omitted.]).
39
Of course, the Rodney King case, on which the state relies, represents
a misuse of the police baton. See Koon v. United States, supra, 518 U.S. 86–87.
Virtually any instrumentality, however, even those that are not designed or
intended to cause harm or injury, may be used in such an unlawful and
destructive manner.
40
We note that, after Heller, ‘‘[i]t remains unsettled whether the individual
right to bear arms for the purpose of self-defense extends beyond the home.’’
Drake v. Filko, 724 F.3d 426, 430 (3d Cir. 2013), cert. denied sub nom. Drake
v. Jerejian, U.S. , 134 S. Ct. 2134, 188 L. Ed. 2d 1124 (2014). But see
Peruta v. San Diego, 742 F.3d 1144, 1166 (9th Cir. 2014) (‘‘the carrying of
an operable handgun outside the home for the lawful purpose of self-defense,
though subject to traditional restrictions, constitutes ‘bear[ing] [a]rms’
within the meaning of the [s]econd [a]mendment’’); Moore v. Madigan, 702
F.3d 933, 942 (7th Cir. 2012) (‘‘The [United States] Supreme Court has
decided that the [second] amendment confers a right to bear arms for self-
defense, which is as important outside the home as inside. The theoretical
and empirical evidence [which overall is inconclusive] is consistent with
concluding that a right to carry firearms in public may promote self-
defense.’’). Nevertheless, those courts that have ‘‘decline[d] to definitively
declare that the individual right to bear arms for the purpose of self-defense
extends beyond the home, the ‘core’ of the right as identified by Heller . . .
do, however, recognize that the [s]econd [a]mendment’s individual right to
bear arms may have some application beyond the home.’’ (Emphasis in
original.) Drake v. Filko, supra, 431; see also Kachalsky v. Westchester,
supra, 701 F.3d 89 (‘‘What we know from [Heller and McDonald] is that
[s]econd [a]mendment guarantees are at their zenith within the home. . . .
What we do not know is the scope of that right beyond the home and the
standards for determining when and how the right can be regulated by a
government. This vast ‘terra incognita’ has troubled courts since Heller was
decided. . . . Although the [United States] Supreme Court’s cases applying
the [s]econd [a]mendment have arisen only in connection with prohibitions
on the possession of firearms in the home, the [c]ourt’s analysis suggests
. . . that the [second] [a]mendment must have some application in the very
different context of the public possession of firearms.’’ [Citations omitted;
emphasis omitted.]). For purposes of the present appeal, however, we need
not determine the extent to which, if at all, the second amendment protects
the right to carry weapons in public separate from the possession of those
weapons in the home; rather, our analysis focuses solely on whether § 29-
38 unduly infringes on the right to keep protected weapons in the home for
self-defense by prohibiting the transportation of such weapons from one
home to another.
41
As we previously noted; see part I B of this opinion; in State v. Campbell,
supra, 300 Conn. 380 n.6, this court construed the absolute prohibition in
§ 53-206 against carrying certain dangerous weapons, including dirk knives
and police batons, as banning the carrying of those weapons in the home,
even though there is no prohibition against owning them and storing them
there. As we also noted, however, the court in Campbell did not consider
whether this construction of § 53-206 comported with the dictates of the
second amendment. See generally id. In light of our determination that dirk
knives and police batons fall within the purview of the second amendment,
the ban against carrying them in the home cannot be squared with constitu-
tional requirements.
42
As we explained, § 29-38 (b) contains exceptions to the prohibition
against transporting the weapons identified in § 29-38 (a), but none of those
exceptions applies to the defendant’s transportation of the dirk knife and
police baton in the present case, and none would apply if the defendant had
been transporting those weapons to his home from their place of purchase.
43
The state also acknowledged that the legislature did not want to ‘‘make
it easy’’ for an owner of those weapons to possess them in the home. In
fact, as we noted previously, under § 53-206, it is unlawful to carry a dirk
knife or police baton under any circumstances.
44
See, e.g., United States v. Chovan, supra, 735 F.3d 1138 (applying inter-
mediate scrutiny to second amendment challenge to statutory ban on posses-
sion of firearms by domestic violence misdemeanant); Drake v. Filko, 724
F.3d 426, 428, 436 (3d Cir. 2013) (intermediate scrutiny applicable to deter-
mine constitutionality of licensing scheme requiring applicant to demon-
strate ‘‘ ‘justifiable need’ ’’ for issuance of permit to carry handgun in public),
cert. denied sub nom. Drake v. Jerejian, U.S. , 134 S. Ct. 2134, 188
L. Ed. 2d 1124 (2014); Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir.)
(challenge to ‘‘good-and-substantial-reason requirement’’ for obtaining state
handgun permit for carrying handgun outside home was subject to intermedi-
ate scrutiny), cert. denied, U.S. , 134 S. Ct. 422, 187 L. Ed. 2d 281(2013); Kachalsky v. Westchester, supra, 701 F.3d 83, 96 (intermediate scru-
tiny appropriate for determination of whether licensing scheme requiring
applicant to demonstrate ‘‘ ‘proper cause’ ’’ for issuance of license to carry
concealed handgun in public passes muster under second amendment);
Heller v. District of Columbia, supra, 670 F.3d 1261 (challenge to semiauto-
matic rifle and large capacity magazine ban subject to intermediate scrutiny);
Heller v. District of Columbia, supra, 670 F.3d 1257 (constitutionality of
firearm registration scheme evaluated under intermediate scrutiny); United
States v. Booker, supra, 644 F.3d 25 (ban on prohibition against possession
of firearms by person convicted of misdemeanor crime of domestic violence
must satisfy intermediate scrutiny to withstand second amendment chal-
lenge); United States v. Masciandaro, supra, 638 F.3d 471 (intermediate
scrutiny applicable to challenge to ban on carrying or possessing loaded
handgun in motor vehicle within national park area); United States v. Reese,
627 F.3d 792, 802 (10th Cir. 2010) (applying intermediate scrutiny to second
amendment challenge to 18 U.S.C. § 922 [g] [8], which prohibits individual
from possessing firearm while being subject to domestic protection order),
cert. denied, U.S. , 131 S. Ct. 2476, 179 L. Ed. 2d 1214 (2011); United
States v. Marzzarella, supra, 614 F.3d 97 (ban on possession of weapon
with obliterated serial number must pass intermediate scrutiny); Shew v.
Malloy, supra, 994 F. Supp. 2d 247 (challenge to semiautomatic firearm and
large capacity magazine ban reviewed under intermediate scrutiny standard);
New York State Rifle & Pistol Assn., Inc. v. Cuomo, 990 F. Supp. 2d 349,
367 (W.D.N.Y. 2013) (challenge to law restricting, inter alia, availability of
assault weapons and large capacity magazines reviewed under intermediate
scrutiny standard).
45
For example, in Ezell v. Chicago, supra, 651 F.3d 684, the Seventh Circuit
Court of Appeals held that the plaintiffs were very likely to prevail on their
second amendment challenge to an ordinance of the defendant, the city
of Chicago (city), that simultaneously mandated firing range training as a
condition of lawful firearm possession and banned firing ranges in the city.
Id., 689–90. In reaching its conclusion, the court observed that ‘‘[t]he right
to possess firearms for protection implies a corresponding right to acquire
and maintain proficiency in their use; the core right [would not] mean much
without the training and practice that make it effective.’’ Id., 704. The court
described the range ban, which ‘‘prohibit[ed] the law-abiding, responsible
citizens of [the city] from engaging in target practice in the controlled
environment of a firing range’’; (internal quotation marks omitted) id., 708;
as ‘‘a serious encroachment on the right to maintain proficiency in firearm
use, an important corollary to the meaningful exercise of the core right to
possess firearms for self-defense. That the [c]ity conditions gun possession
on range training is an additional reason to closely scrutinize the range
ban.’’ (Emphasis omitted.) Id. Observing that the city’s own witnesses had
‘‘testified to several common-sense range safety measures that could be
adopted short of a complete ban’’; id., 709—measures that were designed
to address the city’s interest in preventing firearms accidents and the possi-
ble theft of firearms from range users by criminals; see id., 692—the court
concluded that the ‘‘the [firing range] ban [was] wholly out of proportion
[with] the public interests the [c]ity claims it serves.’’ Id., 710. Indeed, even
the concurring judge, who would have afforded more credence to the city’s
articulated public safety concerns, nevertheless agreed that the ordinance
was unconstitutional to the extent that it barred gun owners from trans-
porting their weapons for practice purposes. See id., 715 (Rovner, J., concur-
ring in the judgment) (‘‘if the ordinance both prohibits gun owners from
transporting their own weapons and prevents ranges from lending weapons
for practice, then those aspects of the ordinance must be enjoined’’).
46
In Bateman v. Perdue, 881 F. Supp. 2d 709 (E.D.N.C. 2012), for example,
the District Court applied strict scrutiny in invalidating a North Carolina
statutory scheme that made it a misdemeanor ‘‘for any person to transport
or possess off his own premises any dangerous weapon or substance in
any area in which a state of emergency has been declared’’; (emphasis added;
internal quotation marks omitted) id., 711; and ‘‘authorize[d] government
officials to impose further prohibitions and [restrictions on] the possession,
transportation, sale, purchase, storage, and use of dangerous weapons and
substances during a state of emergency.’’ (Internal quotation marks omitted.)
Id. In concluding that these statutes violated the second amendment, the
court emphasized that they ‘‘burden[ed] the rights of [law-abiding] citizens’’;
id., 715; and, ‘‘[m]ost significantly . . . [prohibited law-abiding] citizens
from purchasing and transporting to their homes firearms and ammunition
needed for self-defense.’’ Id.; see also id., 715–16 (noting that, under chal-
lenged statutory scheme, ‘‘government officials may . . . ban the posses-
sion, transportation, sale, purchase, storage or use of dangerous firearms
and ammunition during a declared state of emergency—even within one’s
home where the need for defense of self, family, and property is most acute’’
[internal quotation marks omitted]).
47
See, e.g., Young v. Hawaii, 911 F. Supp. 2d 972, 990 (D. Haw. 2012)
(‘‘[The challenged statutes] require that firearms be confined to the possess-
or’s place of business, residence or sojourn but allow lawful transport
between those places and repair shops, target ranges, licensed dealerships,
firearms shows, firearms training, and police stations. . . . People with a
license to carry . . . are exempt from the provisions. [The statutes] do not
violate . . . [s]econd [a]mendment rights. [They] do not restrict the core
protection afforded by the [s]econd [a]mendment. . . . They only apply to
carrying a weapon in public.’’ [Citations omitted; internal quotation marks
omitted.]); Doe v. Wilmington Housing Authority, 880 F. Supp. 2d 513, 535
(D. Del. 2012) (applying intermediate scrutiny in rejecting second amend-
ment challenge to public housing authority policy prohibiting possession of
firearms in common areas of housing projects upon concluding that fit
between restriction and authority’s interest in safety was ‘‘reasonable’’
because, inter alia, ‘‘residents are permitted to lawfully possess firearms
within the confines of their homes, that is, their particular assigned units,’’
‘‘[r]esidents . . . have the right to transport lawfully owned and obtained
weapons to and from their units,’’ and, ‘‘in the course of such transportation,
should the need arise, they may use their weapons for purposes of self-
defense’’), rev’d in part on other grounds, 568 Fed. Appx. 128 (3d Cir. 2014);
Williams v. State, 417 Md. 479, 486–87, 496–97, 10 A.3d 1167 (holding that
state statute prohibiting carrying or transporting of handgun without permit
did not violate second amendment when statute also provided exceptions
for, inter alia, home possession, moving, repair, and travel to and from place
of purchase and sale), cert. denied, U.S. , 132 S. Ct. 93, 181 L. Ed.
2d 22 (2011).
48
Compare Griffin v. State, 47 A.3d 487, 491 (Del. 2012) (defendant had
state constitutional right to carry concealed knife in his home), with People
v. Mitchell, 209 Cal. App. 4th 1364, 1375–76, 148 Cal. Rptr. 3d 33 (2012)
(applying intermediate scrutiny and rejecting second amendment challenge
to statute proscribing carrying of concealed dirk or dagger because [1] ‘‘the
statute does not apply to the open carrying of a dirk or dagger, and it
excludes from its coverage an openly suspended sheathed knife, as well as
nonswitchblade folding and pocketknives kept in a closed or unlocked
position,’’ [2] ‘‘the statute provides other means of carrying a dirk or dagger
for self-defense,’’ [3] ‘‘[t]he statute does not contain any express restriction
on concealment of weapons on the person at home, and [4] to the extent
it is capable of being applied improperly in the home context . . . any
overbreadth can be cured on a case-by-case basis’’), review denied, California
Supreme Court, Docket No. S206830 (Cal. January 23, 2013), and Seattle v.
Montana, 129 Wn. 2d 583, 595–96, 919 P.2d 1218 (1996) (rejecting state
constitutional challenge to municipal ordinance that restricted carrying of
dangerous knife because ordinance was ‘‘not a complete ban on the posses-
sion and carrying of knives’’ insofar as it permitted ‘‘possession of fixed
blade knives at home or [at] a place of business,’’ and carrying ‘‘for hunting
or fishing purposes, for work, or to and from home or work’’).