Background
Knife Rights, Inc., individual plaintiffs seeking to possess switchblades, and two retailers of bladed weapons challenged California’s complete prohibition on the possession, carry, transfer, and sale of switchblade knives. The plaintiffs brought a facial constitutional challenge under the Second Amendment, arguing that California’s switchblade regulations were unconstitutional in all their applications. The district court granted summary judgment in favor of California. On appeal, the Ninth Circuit panel had previously issued an opinion affirming on different grounds, and the plaintiffs petitioned for panel rehearing and rehearing en banc.
The case arises under the framework established by the Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen, which requires courts to assess whether a firearm regulation is consistent with the nation’s historical tradition of regulating weapons. The plaintiffs argued that California’s categorical switchblade ban—prohibiting all forms of possession and carry—lacks sufficient historical analogue and therefore violates the Second Amendment.
The Court’s Holding
The panel denied the petition for rehearing, affirming the district court’s judgment in favor of California. The panel held that California’s prohibition on the concealed carry of switchblade knives is consistent with the nation’s historical tradition of regulating weapons and therefore constitutional under the Second Amendment. Critically, the court declined to address other applications of California’s switchblade regulations, such as open carry.
In rejecting the facial challenge, the panel emphasized that facial challenges impose an “exceptional burden” on plaintiffs, who must establish that no set of circumstances exists under which the regulation would be valid. The panel reasoned that because concealed carry of switchblades can be justified by historical tradition—citing historical laws regulating the concealed carry of dangerous edged weapons like Bowie knives and dirks—the facial challenge necessarily fails. The panel noted that even if other applications of the regulation might be unconstitutional, this does not invalidate the entire statute.
Judge Wardlaw’s concurrence (joined by Judges Gould and Koh) stressed that the plaintiffs’ choice to pursue a facial challenge—rather than a narrower as-applied challenge—was dispositive. The concurrence emphasized that plaintiffs remain free to bring as-applied challenges to specific applications of California’s regulations, such as to the open carry of switchblades. Judges VanDyke and Tung dissented from the denial of rehearing en banc, arguing that the panel’s reasoning was inconsistent with Bruen’s guidance and that categorical bans on weapons should not survive scrutiny merely because one application might be constitutional.
Key Takeaways
- Facial challenges to Second Amendment regulations face an exceptionally high burden; plaintiffs must show the regulation is invalid in all applications.
- A categorical weapons ban may survive a facial challenge if at least one application—here, concealed carry—is supported by historical tradition.
- The Bruen framework’s historical tradition requirement does not require a perfect historical twin; representative historical analogues suffice.
- The court did not decide whether switchblades qualify for Second Amendment protection or whether open carry bans are constitutional.
- As-applied challenges remain available as an alternative to facial challenges for plaintiffs contesting specific applications of weapons regulations.
Why It Matters
This decision clarifies how federal appellate courts will apply facial challenge doctrine to Second Amendment cases following Bruen. It signals that even categorical weapon bans may survive constitutional scrutiny if courts can identify some constitutional application, a result that dissenters argue effectively nullifies categorical ban challenges. The decision creates tension with Bruen’s historical tradition framework: critics contend that permitting bans on all forms of carry (concealed and open) when only concealed carry has a historical analogue contradicts the Supreme Court’s guidance that the government must identify a “well-established and representative” historical analogue, not a perfect match.
The sharp internal division within the Ninth Circuit—with eight judges dissenting from the denial of en banc review—underscores deeper disagreements about Second Amendment jurisprudence. Judge VanDyke’s dissent cited the court’s prior reversal in Teter v. Lopez (involving Hawaii’s butterfly knife ban) and called for the Supreme Court to issue summary reversals of the Ninth Circuit’s Second Amendment decisions, characterizing the court’s approach as systematically hostile to Second Amendment rights regardless of Supreme Court precedent.