This week, a 3-judge panel of the Washington Court of Appeals – Division I issued an opinion in Zaitzeff v. City of Seattle, which held that even though the sword Zaitzeff carried in a Seattle park is protected by both the Second Amendment and the Washington State Constitution as an arm, the city’s ban on carrying it is constitutional as applied to him.
In 2018, David Zaitzeff was charged under a Seattle ordinance making it unlawful to carry “any dangerous knife” after police “confirmed he had a sword, which measured about 24 inches long” in the city’s Green Lake Park. After denying Zaitzeff’s motion to dismiss the charge, the municipal court found that Zaitzeff’s sword is not an arm protected by the State or federal constitutions. On appeal, the superior court affirmed, “not[ing] that insufficient evidence supported a finding that a sword is traditionally or commonly used as a weapon of self-defense.” Zaitzeff then appealed the decision to the Washington Court of Appeals.
In its opinion, the appeals court found “that the federal and state constitutions protect Zaitzeff’s sword as an arm” and determined that “while law-abiding citizens do not typically carry swords for lawful purposes today… swords were common at the time of founding.” The court argued that this case differs from City of Seattle v. Evans which “held that neither the state nor federal constitutions protected the appellant’s paring knife” because while the primary purpose of the knife in Evans was “culinary and not for self-defense,” swords have been traditionally used for self-defense by law-abiding citizens.
Holding that Zaitzeff’s sword is protected by the federal and state constitutions, the court then determined Seattle’s ordinance is constitutional as applied to Zaitzeff, finding that it “is reasonably necessary to protect public safety and welfare” and, confusingly, that it apparently “does not strike close to the core of the Second Amendment right.” The court also determined that “[p]rohibiting Zaitzeff from carrying his sword in Green Lake Park does not severely burden his Second Amendment rights to warrant strict scrutiny” and that “as applied here, the ordinance operates within the bounds of constitutionality because it is a reasonable regulation and satisfies intermediate scrutiny.”
While FPC agrees with the court’s conclusion that swords are arms protected by the Second Amendment, the court was plainly wrong in upholding Seattle’s ordinance as constitutional, as well as in ruling that intermediate scrutiny was the correct standard to apply. FPC filed a brief last year in a similar Hawaii case arguing that butterfly knives are not “dangerous and unusual” and that the state’s categorical ban on them violates the Second Amendment.