The Ninth Circuit declined to revisit a Second Amendment challenge to California's switchblade regulations, leaving intact a panel ruling that rejected a facial attack on the law.
What happened
The Ninth Circuit on Thursday denied panel rehearing and rehearing en banc in Knife Rights Inc.'s challenge to California's switchblade regulations, leaving intact a panel ruling that affirmed summary judgment for the state in a facial Second Amendment case.
The published rehearing fight centered on whether the panel could reject the challenge by identifying at least one constitutional application of the law: concealed carry. Judge Kim McLane Wardlaw, joined by Judges Ronald M. Gould and Lucy H. Koh, wrote that the case turned on the plaintiffs' choice to bring what the concurrence called the "most difficult challenge to mount successfully" — a facial challenge.
The concurrence said the plaintiffs had asked the district court to invalidate California's switchblade regulations in full, but that the panel's ruling was narrower. It said the panel concluded that "California’s switchblade regulations constitutionally prohibit concealed carry" and did not need to decide whether other applications of the law, including open carry, would survive a Second Amendment challenge.
Judge Wardlaw's concurrence relied on United States v. Rahimi and United States v. Salerno for the proposition that a facial challenge fails if a challenged law is constitutional in at least some applications. The concurrence said the plaintiffs remain free to bring as-applied challenges to open carry or other provisions, while emphasizing that the court did not reach whether switchblades are protected by the Second Amendment or whether they could be treated as dangerous and unusual weapons.
Judge Lawrence VanDyke dissented separately, agreeing with Judge Jennifer Sung's dissent and criticizing the court's treatment of Second Amendment cases. Judge Sung, joined by Judges Consuelo M. Callahan, Ryan D. Nelson, Daniel P. Collins, Kenneth K. Lee, Daniel A. Bress, Patrick J. Bumatay and Judge VanDyke, argued that a historical tradition permitting open carry while restricting concealed carry cannot justify a law that bans both.
The denial means the panel decision remains the operative Ninth Circuit ruling unless the challengers pursue further review. The dissents frame the case as a significant post-Bruen dispute over how broadly governments may defend weapons restrictions in facial Second Amendment challenges.