DECLARATION OF CONCERNED LEGAL LEXICOGRAPHERS, LLC
Federal prosecutors have recently failed to secure an indictment against a man who allegedly threw a sandwich at a federal agent. It is a legal commonplace that any prosecutor could secure an indictment against a ham sandwich. However, this case involved a salami sub. As the DC prosecutors consider whether to continue to seek a felony indictment, pursue a misdemeanor charge, or drop the charges altogether, we as Concerned Legal Lexicographers submit this declaration in an attempt to answer the question, Is a sandwich a weapon? And if it is a weapon, does it enjoy constitutional protection?
First, we consider the nature of the sandwich. Both sides in this case have stipulated their acceptance of the Oxford English Dictionary definition of ‘the sandwich’ as,
An article of food for a light meal or snack, composed of two thin slices of bread, usually buttered, with a savoury (originally spec. meat, esp. beef or ham) or other filling. Frequently with specifying word prefixed indicating contents, as [indictable] ham sandwich [OED online, s.v. sandwich, noun 2].
The earliest citation for ‘sandwich’ recorded in the OED appears in the Journal of Edward Gibbons and is dated 1762: “I dined at the Cocoa Tree. . . . That respectable body . . . affords every evening a sight truly English. Twenty or thirty . . . of the first men in the kingdom, . . supping at little tables . . . upon a bit of cold meat, or a Sandwich” (ibid.).
Both sides agree as well that although the ‘sub sandwich’ at issue in the present case does not consist of a filling “between two thin slices of bread,” it is indeed a sandwich, as are the roughly synonymous hero, hoagie, grinder, and submarine.
Nor do we find it necessary to explore the commonly-raised collateral questions, Is a hot dog a sandwich? Is a taco? Or a blintz? Nor do we ask the thorny question of whether ‘blintz’ may occur as a singular noun. If and when these questions require answers, they will be explored in a subsequent filing.
Having defined “sandwich,” in order to determine whether a sandwich is a weapon, we must also define ‘weapon.’
One of the oldest definitions of a ‘weapon’ appears in the 13th-century English legal treatise of Henry Bracton:
All things by which men may inflict injury are included in the word ‘weapons.’ If one comes unarmed, but during the course of the argument picks up sticks, staves [or] stones, it will be called armed force [Henrici de Bracton, De legibus & consuetudinibus Angliae Libri, ca. 1230, Vol. 3:20].
In his legal dictionary, Cunningham, citing Crompton, who echoes Bracton, offers this corker:
Arms, in the understanding of law, are extended to any thing that a man wears for his defence or takes into his hands, or useth in wrath to cast at or strike another [Timothy Cunningham, A New and Complete Law Dictionary, Vol. 1, 1764, s.v. armour or arms; citing Richard Crompton, Loffice & aucthority de iustices de peace, 1593: 65–66; we here use ‘corker’ in its accepted technical sense].
Finally we cite Black’s Law Dictionary, whose first edition offers this salient definition of ‘arms’:
Anything that a man wears for his defense, or takes in his hands, or uses in his anger, to cast at or strike at another. Co. Litt 161b, 162a; Cromp. Just. Peace, 65.
Black continues,
This term, as it is used in the constitution [to wit: the Second Amendment], relative to the right of citizens to bear arms, refers to the arms of a militiaman or soldier, and the word is used in its military sense. . . . The term, in this connection, cannot be made to cover such weapons as dirks, daggers, slung-shots, sword-canes, brass knuckles, and bowie-knives. These are not military arms. [Henry Campbell Black, A Dictionary of Law, 1891].
Standing Black (1891) on its head, the Supreme Court in Heller expanded the definition of ‘arms’ as used in the Second Amendment to include any and all instruments not yet known in the Founding Era, to wit adding the Glock and the AR-15 to the billy club, the Bowie knife, the Arkansas toothpick, the slung shot, and the sword cane (District of Columbia v. Heller, 554 U.S. 570, 2008).
It goes without saying, though clearly we are saying it anyway, that the Court’s now-expanded definition of what constitutes a weapon not subject to restriction encompasses the sandwich per se, which was known in England in the 1760s and is cited by Jane Austen in 1800, years which span the Founding Era.
Having established the presence of the sandwich in England, we must now consider whether the sandwich was known in the United States. The historical dictionaries fail us here. The OED’s earliest American citation for ‘sandwich’ is from a novel by Sinclair Lewis dated 1925 (OED, loc. cit.). However, the Corpus of Historical American English (COHA) shows that by the 1840s, the sandwich was common enough in America that it needed no definition when it appeared in print, and it was certainly a familiar term during the Reconstruction period.
In addition, although the submarine sandwich at issue in the present case was not invented until the early 20th century, it still must be considered both a sandwich and a weapon.
The Founders, were they to encounter sandwiches, would certainly have thought of the sandwich as a weapon (see J. Scalia on what the Founders surely thought about arms, though they never bothered to put those thoughts in writing, Heller, op. cit.). And certainly by the Reconstruction era, the sandwich had taken its place in the American culinary arsenal.
The Supreme Court, in Bruen, elaborating on Heller, has clarified that any weapon not subject to restriction either during the Founding Era or during the period following ratification of the Fourteenth Amendment, may not be subject to regulation today (New York State Rifle & Pistol Assn, Inc., et al., v. Bruen, et al., No. 20–843, 2022).
The present case before the Court concerns a sandwich that was thrown, or in the words of Cunningham, as echoed by Black, “cast at,” another, possibly in anger (or in wrath) thus satisfying the definitions of Bracton, Crompton, Cunningham, and Black, and treating the sandwich as a weapon is consistent with the subsequent elaboration of the meaning of the right to bear arms by the Supreme Court in Bruen (cited above).
And so we must conclude that yes, a sandwich of the kind at issue in this case may indeed be a weapon. It was allegedly used as a weapon by its owner, and it allegedly inflicted injury, or had the capability of inflicting injury, on another person. And yet, as we interpret Bruen, given that there are no historical limits on carrying sandwiches in either the Founding Era or the Reconstruction Era, the sandwich is a constitutionally-protected weapon.
The defense will claim that the sandwich thrower was acting in self defense, consistent with relevant stand-your-ground legislation.
The prosecution must show that the sandwich thrower acted not in self-defense but with malice aforethought.
And so it is necessary to address the question of intent, or mens rea, because there can be no crime without intent... uh, we see we are out of time and will address the question of intent in a subsequent filing (we use ‘uh’ in its accepted legal sense of, ‘uh’).
Respectfully submitted on this, the ___th day of August, 2025, in the County of _______ in the State of _______. (Signed electronically by) The Concerned Legal Lexicographers, LLC
