Yesterday the Ninth Circuit denied rehearing en banc of a panel ruling (in Knife Rights, Inc. v. Bonta) that rejected a Second Amendment challenge to a California statute that bars carrying switchblade knives. Eight judges dissented. Judge Eric Tung wrote the main dissent for all eight. Judge Lawrence VanDyke added his own dissent. And Judge Kim McLane Wardlaw, author of the panel opinion (and joined by her fellow panelists), wrote to justify the denial and respond to the dissents.
The opinions run some 50-plus pages: 20 pages for Tung’s dissent (together with appendices of nearly 80 pages), 25+ pages for VanDyke’s dissent, and 10 pages for Wardlaw’s concurrence. I’ll briefly summarize them here.
Judge Wardlaw’s affirmative case for denying en banc rehearing relies on the fact that plaintiffs brought a facial challenge to California’s prohibition on carrying switchblade knives. In a facial challenge, plaintiffs need to establish that there is no set of circumstances that the prohibition could constitutionally apply to. California’s ban on the concealed carry of switchblades falls within a historical tradition of banning concealed carry of other weapons. Because California’s ban has permissible applications, the facial challenge fails. Wardlaw argues that her analysis is consistent with the Supreme Court’s Second Amendment ruling in United States v. Rahimi (2024).
Judge Tung argues that the panel’s facial analysis was improper: The statute is a total ban, not just a concealed-carry ban, so any historical analysis must be conducted with respect to that total ban:
If a total ban could always be reconceived as a narrower ban (as the panel would allow), then a total ban would survive any Second Amendment facial challenge. On the panel’s logic, one “application” of a total ban could be to prohibit a violent felon from carrying a firearm. Another “application” could be prohibiting a person from carrying that firearm with the intent to terrify surrounding passers-by. Because such “applications” would likely be permissible, a facial challenge to a total ban would always fail, if we followed the panel’s logic. That is not the law. Bruen and Heller invalidated certain gun bans on their face. The Court did not reconceptualize the bans in a narrow way to see if those narrower, imagined versions of the law could withstand constitutional scrutiny.
It’s also interesting to learn from Tung’s dissent that the panel holding conflicts with a 2024 ruling from a very liberal court, the Massachusetts supreme court.
Judge VanDyke’s characteristically lively dissent complains that the court’s “improper” practice of automatically vacating a panel opinion when en banc hearing is granted enabled Hawaii to strategically moot a previous panel opinion that invalidated a similar blanket ban on butterfly knives. He calls this switchblade case “just the latest chapter in our court’s long and concerning history of refusing to vindicate the Second Amendment.” And he offers the “modest proposal” that 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.”
VanDyke points out that the Court’s summary reversals in habeas cases seem to have had a beneficial impact. He refrains (I think) from pointing out that Wardlaw has been a prominent recipient of summary reversals.