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[Post in General approved by Spark]
The Ninth Circuit denied rehearing in our lawsuit challenging California’s switchblade ban on Second Amendment grounds. While disappointing, the denial was not a surprise. However, the order denying rehearing was accompanied by two scathing dissents that take the Ninth to task over their lack of respect for the Second Amendment and U.S. Supreme Court precedent. Together, they are a win of sorts for going forward with this case.
The three-judge appeals panel decision, which was narrow and procedural, upheld the Ninth Circuit opinion—not by finding switchblades were unprotected by the Second Amendment, and not by finding a historical tradition banning all carry of the knives, but by inappropriately segmenting California’s total ban into a concealed-carry restriction and then citing questionable historical laws prohibiting such carry as the means to justify the total ban.
Judge Tung’s Dissent
Judge Tung issued a dissent, joined by seven others, which number is extraordinary. The dissent pointed out that California’s ban on switchblades is not merely a concealed-carry ban, because it prohibits carrying a switchblade in any manner, openly or concealed. It notes that the panel’s approach in isolating just concealed-carry and finding that part historically supported was “wrong” and “foreclosed” by, and “conflicts” with, the Supreme Court’s Bruen precedent.
The dissent also argued that the panel’s approach “should set off alarm bells” because, if accepted, it would “upend Bruen” and shield from scrutiny any law that “categorially and totally bans” the carrying of arms by cherry-picking some narrow hypothetically constitutional application of that law. The dissent also noted that the panel’s opinion conflicts with a Massachusetts Supreme Court decision striking down a similar switchblade ban under the Second Amendment.
Judge VanDyke’s Fiery Dissent
Judge VanDyke agrees entirely with Tung’s dissent, but he wrote separately to sharply make the broader point that the Ninth Circuit has spent years refusing to apply Supreme Court precedent “vindicating” the Second Amendment. Instead, he points out that Heller and Bruen have done “nothing” to change the Ninth’s approach to Second Amendment cases. He wrote, “Come hell or high water, Heller and Bruen, our court will find a way to uphold any weapons restriction that a liberal State can dream up.”
Justice VanDyke then offers a “suggestion” that the Supreme Court issue more summary reversals of “wayward Second Amendment decisions.” He wrote, more bluntly, that “it’s time for some benchslaps,” stating that only several public rebukes from the Supreme Court would halt or minimize what VanDyke characterized as the circuit’s “open defiance” of Supreme Court Second Amendment precedent.
Next Steps
The two dissents are worth reading in full. Judge VanDyke’s is especially entertaining. They expose a huge fracture among the circuit judges over the handling of Second Amendment cases in the Ninth Circuit, as well as in other anti-Second Amendment circuits.
Given the intensity of the dissents, and with eight justices saying the panel got the Second Amendment framework wrong, and especially given statements about conflicts with Bruen and the Massachusetts Supreme Court switchblade decision, this case is potentially a strong candidate for a certiorari petition to the U.S. Supreme Court.
Knife Rights will be evaluating its options in the coming weeks.
The Ninth Circuit denied rehearing in our lawsuit challenging California’s switchblade ban on Second Amendment grounds. While disappointing, the denial was not a surprise. However, the order denying rehearing was accompanied by two scathing dissents that take the Ninth to task over their lack of respect for the Second Amendment and U.S. Supreme Court precedent. Together, they are a win of sorts for going forward with this case.
The three-judge appeals panel decision, which was narrow and procedural, upheld the Ninth Circuit opinion—not by finding switchblades were unprotected by the Second Amendment, and not by finding a historical tradition banning all carry of the knives, but by inappropriately segmenting California’s total ban into a concealed-carry restriction and then citing questionable historical laws prohibiting such carry as the means to justify the total ban.
Judge Tung’s Dissent
Judge Tung issued a dissent, joined by seven others, which number is extraordinary. The dissent pointed out that California’s ban on switchblades is not merely a concealed-carry ban, because it prohibits carrying a switchblade in any manner, openly or concealed. It notes that the panel’s approach in isolating just concealed-carry and finding that part historically supported was “wrong” and “foreclosed” by, and “conflicts” with, the Supreme Court’s Bruen precedent.
The dissent also argued that the panel’s approach “should set off alarm bells” because, if accepted, it would “upend Bruen” and shield from scrutiny any law that “categorially and totally bans” the carrying of arms by cherry-picking some narrow hypothetically constitutional application of that law. The dissent also noted that the panel’s opinion conflicts with a Massachusetts Supreme Court decision striking down a similar switchblade ban under the Second Amendment.
Judge VanDyke’s Fiery Dissent
Judge VanDyke agrees entirely with Tung’s dissent, but he wrote separately to sharply make the broader point that the Ninth Circuit has spent years refusing to apply Supreme Court precedent “vindicating” the Second Amendment. Instead, he points out that Heller and Bruen have done “nothing” to change the Ninth’s approach to Second Amendment cases. He wrote, “Come hell or high water, Heller and Bruen, our court will find a way to uphold any weapons restriction that a liberal State can dream up.”
Justice VanDyke then offers a “suggestion” that the Supreme Court issue more summary reversals of “wayward Second Amendment decisions.” He wrote, more bluntly, that “it’s time for some benchslaps,” stating that only several public rebukes from the Supreme Court would halt or minimize what VanDyke characterized as the circuit’s “open defiance” of Supreme Court Second Amendment precedent.
Next Steps
The two dissents are worth reading in full. Judge VanDyke’s is especially entertaining. They expose a huge fracture among the circuit judges over the handling of Second Amendment cases in the Ninth Circuit, as well as in other anti-Second Amendment circuits.
Given the intensity of the dissents, and with eight justices saying the panel got the Second Amendment framework wrong, and especially given statements about conflicts with Bruen and the Massachusetts Supreme Court switchblade decision, this case is potentially a strong candidate for a certiorari petition to the U.S. Supreme Court.
Knife Rights will be evaluating its options in the coming weeks.
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