A divided Ninth Circuit Court of Appeals has denied an en banc review of a decision upholding California's ban on switchblades, a decision that led one of the eight dissenting judges to declare it's time for the Supreme Court to "consider summarily reversing some of our wayward Second Amendment decisions." Putting it in less legal terms, Judge Lawrence VanDyke declared "it’s time for some benchslaps."
The en banc denial in Knife Rights v. Bonta is based on the fact that the plaintiffs brought a facial challenge to the ban, according to the three judges who offered a concurring opinion. That means that the statute would have to unconstitutional in virtually every application, and the judges opined that even if a ban on openly carrying switchblades is unconstitutional, the statute's ban on both open and concealed carry renders it invulnerable to a facial challenge.
Plaintiffs remain free to bring an as-applied challenge to the application of California’s switchblade regulations to the open carry of switchblade knives. They also remain free to challenge its other provisions. There may be a sufficient history and tradition of arms regulation to support each application of California’s switchblade regulations such that even an as-applied challenge would fail under Bruen’s second step. Or, those challenges may fail for a different reason. For example, perhaps the unique character of switchblades distinguishes them from other knives used at the time of the Founding, such that a ban on open carry would be consistent with our “historical tradition of prohibiting the carrying of dangerous and unusual weapons.” Bruen, 597 U.S. at 21 (internal quotation marks and citation omitted). Perhaps switchblades are not protected by the Second Amendment at all. We did not reach, and did not need to reach, these questions.
The judges writing in defense of the decision to deny en banc also took issue with VanDyke's dissent, writing that a separate dissent from Judge Eric Tung "is centered on disagreements without interpretation of the law," which is okay in their view. VanDyke's dissent, though, goes too far in their view with "attacks on colleagues’ credibility, including those who are deceased."
I happen to think VanDyke is correct in his criticism, which stems from his view that "This case is just the latest chapter in our court’s long and concerning history of refusing to vindicate the Second Amendment.
Come hell or high water, Heller or Bruen, our court will find a way to uphold any weapons restriction that a liberal State can dream up. And the Supreme Court’s occasional grant of certiorari and reversal has done nothing—and I mean that literally—to change our court’s behavior. By now it’s clear enough that, especially with regard to the Second Amendment, our court has fully adopted the operating principle of our former colleague Judge Reinhardt: the Supreme Court “can’t catch’em all.” In the real world, no boss would tolerate nearly two decades of repeated defiance from a subordinate. If the Supreme Court wants to do anything to ensure that the Second Amendment doesn’t remain a second-class right in this country’s most populous federal circuit, then something has to change.
So, what to do? I have a suggestion. The Supreme Court should consider summarily reversing some of our wayward Second Amendment decisions. To put it more colloquially, it’s time for some benchslaps. Nothing less will give this court any pause before ultimately blessing every arms restriction it reviews.
VanDyke argues that the Ninth Circuit is misinterpreting circuit court precedent in order to uphold California's law on a facial challenge, and notes that this is just the latest abuse by the appellate court when it comes to the right to keep and bear arms.
VanDyke: "If California’s legislature categorically banned all speech critical of the governor, we would never uphold it just because it could be applied to criminalize certain unprotected categories of speech like true threats or incitement." pic.twitter.com/RfiZGj8FrX
— Firearms Policy Coalition (@gunpolicy) July 16, 2026
It's "impossible to square any of this with the SupremeCourt’s instruction that the Second Amendment right to keep and bear arms should no longer be treated as a 'second class' right," writes VanDyke, and he's not wrong.
We would never bend over backwards to find some bespoke rationalization to avoid vindicating the constitutional rights that most of my colleagues favor. To the contrary, our court often goes out of its way to extend those rights far beyond their original public understanding to achieve desired policy outcomes.
... But in the courts of this country’s most populous federal circuit, the right to keep and bear arms—the palladium of liberty—is effectively a dead letter. It is important that the Supreme Court Justices understand this reality: in the Ninth Circuit, things are no different after Heller and Bruen than they were before. No different.
Here are a couple of other gems from VanDyke's scorching dissent.
VanDyke: "Like a clever, spoiled child, we’ve successfully defied the Supreme Court’s Second Amendment precedent for nearly two decades. The Supreme Court has let us get away with it. And without some stern correction, we’ll continue to do so." pic.twitter.com/pLtmrirPH2
— Firearms Policy Coalition (@gunpolicy) July 16, 2026
VanDyke's dissent is one for the ages, and it should really be read and appreciated in full. It starts on page 14 of the opinions, and it it absolutely scathing and unsparing in his contempt for the Ninth Circuit's treatment of a fundamental enumerated right that's supposed to be protected by the Second Amendment.
I don't know that SCOTUS will end up granting cert and issuing a per curiam opinion in favor of the plaintiffs as VanDyke has suggested, but I wouldn't be surprised if the justices hold on to the case and send it back down to the Ninth Circuit for a do-over after they've issued their opinion on the constitutionality of "assault weapon" bans. VanDyke may have another opportunity to weigh in on California's switchblade ban, and if there's any justice for the right to keep and bear arms that's to be found in the Ninth Circuit, he'll be writing the majority opinion next time around.
Editor’s Note: The radical Left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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