KNIFE RIGHTS INC PWGG LP v. BONTA (2026)

ORDER

Judges Wardlaw, Gould, and Koh voted to deny the Petition for Panel Rehearing and Rehearing En Banc. The full court was advised of the Petition for Rehearing En Banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. See Fed. R. App. P. 40. The Petition for Panel Rehearing and Rehearing En Banc is DENIED.

Bruen may be in its infancy, but Salerno's facial challenge standard dates back nearly four decades. See New York Pistol & Rifle Ass'n v. Bruen, 597 U.S. 1 (2022); United States v. Salerno, 481 U.S. 739 (1987). This case comes down to Plaintiffs' choice to pursue the “most difficult challenge to mount successfully”: a facial one. United States v. Rahimi, 602 U.S. 680, 693 (2024); see also Faulk v. JELD-WEN, Inc., 159 F.4th 618, 623 (9th Cir. 2025) (“Because the plaintiff is the master of the complaint, she gets to determine which substantive claims to bring against which defendants.” (citation modified)). There is no dispute that under this standard, Plaintiffs are “require[d] ․ to ‘establish that no set of circumstances exists under which [California's switchblade regulations] would be valid.’ ” Rahimi, 602 U.S. at 693 (quoting Salerno, 481 U.S. at 745) (emphasis added). As we have recently been reminded by the Supreme Court, the parties' conscious choices concerning which claims to put before us and which to withhold from our review have consequences. See Clark v. Sweeney, 607 U.S. 7, 9 (2025) (explaining that the principle of party presentation demands that courts decide only the issues raised to them by the parties).

I.

Neither “dissental” seriously disputes that California's prohibition on the concealed carry of switchblade knives is consistent with our Nation's history and tradition of arms regulation. See Knife Rights, Inc. v. Bonta, 165 F.4th 1330, 1339–45 (9th Cir. 2026). In our dissenting colleagues' view, even if our Nation's history and tradition of arms regulation supports a regulation banning the concealed carry of switchblade knives, the law is unconstitutional because a different application of the same law bans the open carry of switchblade knives. See Dissent of Tung, J., at 49–51. Because that view flouts the facial challenge standard established in Salerno and applied to a Second Amendment challenge in Rahimi, 602 U.S. at 693, we properly rejected Plaintiffs' facial challenge.

As stated, in a facial challenge to a regulation that burdens Second Amendment rights, the plaintiff bears the exceptional burden of “establish[ing] that no set of circumstances exists under which the regulation would be valid.” Rahimi, 602 U.S. at 693 (emphasis added). As Justice Gorsuch's concurrence explained, “the question [is] whether th[e] law, in at least some of its applications, is consistent with historic firearm regulations.” Id. at 708 (Gorsuch, J., concurring). So long as, “in at least some applications, the challenged law does not diminish any aspect of the right the Second Amendment was originally understood to protect,” the facial challenge must fail. Id. at 711 (Gorsuch, J., concurring).

In Rahimi, the Supreme Court considered the constitutionality of 18 U.S.C. § 922(g)(8), a federal law criminalizing the possession of a firearm while subject to a qualifying domestic violence restraining order. 602 U.S. at 688. Critically, the Court noted that § 922(g)(8)(C) contained two separate bases for liability. Id. The Court ultimately concluded that our Nation's history and tradition contained sufficient historical analogues to support one basis for liability, § 922(g)(8)(C)(i), and that the Court therefore did not need to consider whether the other basis for liability, § 922(g)(8)(C)(ii), was constitutional at all. See id. In other words, “the constitutionality of just one of [§ 922(g)(8)'s] sources [of liability] was sufficient for the statute to survive a facial challenge.” Knife Rights, 165 F.4th at 1338. The Court declined to consider the constitutionality of § 922(g)(8)(C)(ii) and did not ask how the operation of that distinct source of liability affected the total range of prohibited conduct. Rahimi, 602 U.S. at 688–89, 693.

We followed Rahimi's clear guidance. After recognizing Plaintiffs' heavy burden on their facial challenge, we identified one of several bases for liability under the statute: the concealed carry of switchblade knives. See Knife Rights, 165 F.4th at 1339. We then asked whether this application of California's switchblade regulations violates the Second Amendment. See id. at 1339–45. Answering that question in the negative, we concluded that Plaintiffs' facial challenge failed. Id. We declined to express a view “on whether the regulation of any of the other conduct prohibited by California's switchblade regulations is constitutional.” Id. at 1339 n.4. That is exactly what the Supreme Court did in Rahimi.

Consistent with this understanding, Courts of Appeals across the country have upheld laws that comport with the Second Amendment in at least some respects, even if those laws might be unconstitutional in other respects. 1 See also Rahimi, 602 U.S. at 701 n.2 (Even where there are a myriad of potential faults present in a challenged regulation, “unless these hypothetical faults occur in every case, they do not justify invalidating [the law] on its face.”).

Bruen does not help the Plaintiffs' or our dissenting colleagues' position. As the Second Circuit explained in Antonyuk, “the premise of the proper-cause rule at issue in Bruen (that ordinary, law abiding, adult citizens can be prohibited from carrying a gun if they lack a good reason to do so) was unsupported by history and thus violated the Second Amendment.” 120 F.4th at 986 (citation modified). “How that rule was applied in particular cases was irrelevant given its facial constitutional flaw.” Id. In other words, every application of the law challenged in Bruen was affected by an unconstitutional condition that was unsupported by our Nation's history and tradition. Id. It was irrelevant that some individuals would ultimately obtain a license to carry a firearm because those individuals would still need to prove a “special need” in order to obtain the license—and thus, would still be subject to the unconstitutional condition. Bruen, 597 U.S. at 38. The same is not true here. California's switchblade regulations comport with our Nation's history and tradition to the extent that they prohibit the concealed carry of these dangerous edged weapons. See Knife Rights, 165 F.4th at 1339–45. No unconstitutional condition affects that application of the law. Even if other applications might be independently unconstitutional, it is no answer to say that we should invalidate California's switchblade regulations in full.

Indeed, even if our dissenting colleagues are correct that California's switchblade regulations operate as a total ban, their analysis of Plaintiffs' Second Amendment challenge is still inconsistent with Rahimi and runs counter to the purpose of facial challenges. A pair of hypotheticals illustrates why this is an easy case. First, consider a man who walks into a bank in California and sets off its metal detector. A security officer frisks the man and finds a concealed switchblade knife in his pocket. The man is charged with and convicted of a misdemeanor under California Penal Code § 21510(b). The man brings an as-applied Second Amendment challenge to his conviction. That challenge must fail for all of the reasons set forth in our opinion. See Knife Rights, 165 F.4th at 1339–45. That is the end of this case. See United States v. Diaz, 116 F.4th at 471–72 (rejecting a facial challenge to 18 U.S.C. § 922(g)(1) “because the statute is constitutional as applied to the facts of [the defendant's] own case”).

Next, consider a related hypothetical: A different man walks into the same bank with a switchblade knife holstered in plain view on his belt. He is charged with and convicted of a misdemeanor under California Penal Code § 21510(b). The second man may or may not be able to lodge a meritorious as-applied Second Amendment challenge to his conviction. As applied to him, a court may determine that a ban on open carry under § 21510(b) is unconstitutional. But that is precisely the point: as-applied challenges can surgically address unconstitutional applications of statutes while facial challenges cannot. See, e.g., Hoye v. City of Oakland, 653 F.3d 835, 857 (9th Cir. 2011) (An “as-applied attack ․ challenges only one of the rules in a statute ․ or the application of the statute to a specific factual circumstance” because we “can separate valid from invalid subrules or applications.” (citation modified)). At bottom, the dissent's primary disagreement with our opinion seems to rest with Salerno's facial challenge standard itself. 2

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 old adage, “choices have consequences,” is particularly apt under these circumstances. Plaintiffs swung for the fences by asking the district court to invalidate California's switchblade regulations in full. Their challenge was unsuccessful for the reasons explained in our opinion. Our dissenting colleagues' approach would effectively require us to overrule Salerno and Rahimi. That, we cannot do. 3

II.

Judge VanDyke's dissent deserves but a brief response. While all agree that the Second Amendment is not “a second-class right,” Bruen, 597 U.S. at 70 (citation omitted), “constitutional rights ․ come with exceptions,” Rahimi, 620 U.S. at 716 (Kavanaugh, J., concurring), and, like the First Amendment, “the Second Amendment is not absolute,” id. at 737 (Barrett, J., concurring). The procedural posture of a case matters as well. As we have explained, facial challenges are disfavored for a simple reason: we don't want to throw the baby out with the bathwater. See Bucklew v. Precythe, 587 U.S. 119, 138 (2019) (“A facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications.”). We took Rahimi's lead and ruled narrowly: California constitutionally prohibits the concealed carry of switchblade knives. See Knife Rights, 165 F.4th at 1339–45. We did not need to say any more to resolve this case.

The dissents both insist that California could not have banned open carry. We are not so sure. If the Appendices attached to Judge Tung's dissent reveal anything, it is that the historical record contains analogues for banning the open carry of some types of knives. See Dissent of Tung, J., Appendix D. Are those “outliers” as Judge Tung suggests? Perhaps. But perhaps not. 4 Are there other independent bases on which to uphold California's switchblade regulations as a whole? Perhaps. Or perhaps not. We resolved this case narrowly and responsibly.

III.

Judge Tung's dissent is centered on disagreements with our interpretation of the law. Discussing differing interpretations of the law is our Court's duty, but the other dissent's attacks on colleagues' credibility, including those who are deceased, simply because of differing views, is not. 5

I agree entirely with Judge Tung's excellent dissental. I write separately to explain why the panel's flawed decision never should have happened. It was possible only because our court's improper automatic vacatur practice enabled Hawaii to strategically moot a panel opinion striking down a similar blanket ban on butterfly knives. This gave categorical knife bans a second chance to obtain a more favorable ruling from a more favorable panel (from the government's perspective). And that's exactly what happened in this case.

I also write with a modest proposal. 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.” 1 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. 2

I.

California law makes it a crime to carry, publicly possess, transfer, or sell switchblade knives—no exceptions. Cal. Pen. Code §§ 17235, 21510, 21590. 3 As Judge Tung persuasively explains, the panel opinion dodges the obvious constitutional problems with California's categorical switchblade ban by misapplying the facial challenge rule in a way that Bruen—a facial challenge case—doesn't support. That's bad enough. But worse, we shouldn't even be here.

A.

Our court addressed a similar issue a few years ago in Teter v. Lopez, where our good colleague Judge Bea—a fantastic judge, even if he occasionally misses the target on the Second Amendment  4—wrote an outstanding decision explaining why Hawaii's similar complete ban on butterfly knives violated the right to keep and bear arms. See Teter v. Lopez (Teter I), 76 F.4th 938, 942 (9th Cir. 2023), reh'g en banc granted, opinion vacated, 93 F.4th 1150 (9th Cir. 2024), and vacated on reh'g en banc, 125 F.4th 1301 (9th Cir. 2025). The original Teter panel's decision was right—it dealt with a similar categorical ban on similar knives, and it squarely rejected the flawed reasoning the panel employed here.

Butterfly knives are comparable to switchblades for all relevant purposes—they are a species of pocketknife with a handle split into two components and a folding blade that can be opened by “a few short, quick movements” with one hand. Teter I, 76 F.4th at 942; see Cal. Pen. Code § 17235 (defining a switchblade knife as a “knife having the appearance of a pocketknife [including] a spring-blade knife, snap-blade knife, gravity knife, or any other similar type knife, the blade or blades of which are two or more inches in length and which can be released automatically by a flick of a button, pressure on the handle, flip of the wrist or other mechanical device, or is released by the weight of the blade or by any type of mechanism whatsoever”). And just like the California switchblade ban in this case, the Hawaii law challenged in Teter completely banned butterfly knives. See Teter I, 76 F.4th at 942. Hawaii even relied on the same justification for its outright ban as California does here: it felt that butterfly knives were “associated with criminals.” Teter I, 76 F.4th at 949; cf. Knife Rights, Inc. v. Bonta, 165 F.4th 1330, 1345 (9th Cir. 2026) (“California targeted switchblades specifically because of the particular danger these weapons present, and their common association with criminality.”).

The Teter plaintiffs claimed these statutes violated the Second Amendment, and a panel of our court agreed. First, the three-judge Teter panel recognized there was no serious debate that butterfly knives qualify as “arms” under the Second Amendment. See Teter I, 76 F.4th at 948–50. Heller made clear that the Second Amendment extends to all bearable arms: “[w]eapons of offence, or armour of defence” and “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” District of Columbia v. Heller, 554 U.S. 570, 581 (2008) (alteration in original) (citations omitted). Obviously, any knife would meet that definition. But see Knife Rights, 165 F.4th at 1339 (merely assuming, and refusing to decide, that the plain text of the Second Amendment applies to the possession and carry of switchblades).

Hawaii therefore had to prove that its categorical ban on those knives was “consistent with this Nation's historical tradition of regulating weapons.” Teter I, 76 F.4th at 950 (citing N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 17–20, 32–33 (2022)). And like California here, Hawaii tried to meet that burden by arguing that antebellum or later laws banning “Bowie knives,” “metal knuckles,” “sword-canes,” “Arkansas Toothpicks,” and “slung-shots” established “an historical tradition of banning weapons associated with criminality.” Id. at 951; cf. Knife Rights, 165 F.4th at 1341–45.

Judge Bea's opinion correctly explained why these statutes could not justify Hawaii's absolute ban on butterfly knives. “As Bruen put it, the ‘how’ ․ [was] different”—these statutes did “not ban the possession of knives; they regulated only their carry.” Teter I, 76 F.4th at 951. And the vast majority of these antebellum or later statutes “prohibited the concealed carry” of these weapons, or their carry by certain persons or in certain sensitive places. Id. at 951–52. There was no tradition of categorically prohibiting all “carry of pocketknives, much less their possession outright.” Id. at 952–53. These narrow bans on some forms of carry could not support Hawaii's categorical ban on all forms of possession and carry.

So how did we get to today's decision, which holds precisely the opposite?

If you're familiar with our court, you can easily guess the answer. Like every Ninth Circuit panel decision that vindicates the Second Amendment, Teter proved to be yet another Pyrrhic victory for the fundamental right to keep and bear arms. As day follows night, our court “called the case en banc. And after the en banc vote played out in all-too-predictable fashion, the Chief Judge issued an administrative order not only granting en banc review, but also vacating the panel's opinion.” Teter v. Lopez (Teter II), 125 F.4th 1301, 1310 (9th Cir. 2025) (en banc) (VanDyke, J., dissenting in part). No judge voted on that vacatur order, and only the Chief Judge signed it, but it proved consequential. Automatically vacating the Teter panel decision greenlighted Hawaii's decision to strategically moot the case and let categorical knife bans live to fight another day. And sure enough, soon after we took Teter en banc, Hawaii strategically narrowed its butterfly knife ban to cover everything but the conduct the Teter plaintiffs wanted to engage in, and argued its amendments mooted the Teter plaintiffs' claims. Id. at 1308–10. The en banc panel spotted Hawaii an assumption of good faith and agreed that the case was moot. Id. 5

As I explained then, our court's practice of automatically vacating panel opinions creates obvious perverse incentives for government defendants. It allows States to strategically deploy mootness by amending their challenged laws only after this court grants rehearing en banc. Through one simple move, a State can lock in the effect of our auto-vacatur and eliminate any risk of losing on the merits before the en banc court. This, in turn, gives the State—or another State with a similar law—a second bite at the apple before a more favorable panel. That perverse incentive structure is “basically the mirror image” of the kind our Munsingwear precedents aim to counteract. Id. at 1310 (VanDyke, J., dissenting).

As I suggested then, the en banc panel in Teter should have vacated our prior vacatur order, thereby reinstating the precedential value of the panel's opinion, because Hawaii, the en banc petitioner, took deliberate action to moot the case after rehearing en banc was granted. Id. at 1317. But of course we didn't. 6 Teter was a Second Amendment case, after all, and our court is nothing if not militant when trying to find a way to uphold a weapons restriction. Everyone knew then, and knows now, that the entire point of allowing Hawaii to play the panel erasure game in Teter was to leave the way open for a decision like Knife Rights. Is it rude to say “I told you so”?

Today we see the full consequences of letting Hawaii game our auto-vacatur practice. The panel in this case holds that Knife Rights' challenge to California's categorical switchblade ban can be rejected if the panel can think of a single constitutional application for the law. And to give credit where it's due, this move makes some strategic (if not legal) sense—if your goal is to avoid enforcing the Second Amendment. No historical evidence supports a categorical ban on all forms of carrying knives. As Bruen explained, “history reveals a consensus that States could not ban public carry altogether.” Bruen, 597 U.S. at 53. Even our court's pre-Bruen case law recognized the same thing, albeit reluctantly and backhandedly. See Peruta v. Cnty. of San Diego, 824 F.3d 919, 942 (9th Cir. 2016) (“If there is such a right [to public carry], it is ․ a right to carry a firearm openly.”), abrogated in part on other grounds, 597 U.S. 1. So if a panel really wants to uphold California's complete switchblade ban, this might be the only way to do it.

But we are a court after all—not a collection of policy strategists or cabal of regulators—so legal sense should matter. And that is lacking here. On the panel's view, historical statutes banning one type of carry can justify modern statutes banning all carry. Under this reasoning—like God's bargain with Abraham, in which just a few righteous men in Sodom would have been enough to forestall the city's destruction—a blatantly unconstitutional ban on all weapons can be upheld if it has even a single conceivable constitutional application. This reasoning doesn't jibe with Bruen. We are supposed to ask if the laws have the same “how”—in other words, whether the modern regulation “operate[s] in different ways” than the historical analogues the State points to. United States v. Hemani, 608 U.S. ––––, ––––, 2026 WL 1751710, at *6 (2026); accord United States v. Rahimi, 602 U.S. 680, 711 (2024) (Gorsuch, J., concurring). And complete bans on all forms of carry, transfer, and public possession don't work in remotely the same way as bans on some forms of carry.

At any rate, the Knife Rights panel could employ this gambit only because of Hawaii's adept maneuvering, enabled by our improper auto-vacatur practice, to moot Teter. The Teter panel unanimously held that a historical tradition of banning some forms of carry doesn't justify a blanket ban on all forms of carry. That analysis was right and consistent with Bruen. And had we refused to let Hawaii game our auto-vacatur practice in Teter, it would have controlled here and prevented this panel's errant decision to uphold California's complete switchblade ban.

B.

This case, like Teter before it, is just one more predictable chapter in our court's long campaign against the Second Amendment. While the particulars vary from case to case, that story has the simplest basic plot: the government always wins; the Second Amendment plaintiff always loses. Our court will use any judicial tool—no matter how illegitimate—to avoid enforcing the right to keep and bear arms. Second Amendment plaintiffs in the Ninth Circuit are permanently stuck in the unfortunate position of having brought a knife to a gunfight. And that has remained true despite several landmark Supreme Court decisions that should have corrected our case law.

Before Heller, the law in our circuit was that the Second Amendment “right of the people to keep and bear arms,” U.S. Const. amend. II (emphasis added), wasn't an individual right at all, but a right that belonged to the States, see Hickman v. Block, 81 F.3d 98, 100–01 (9th Cir. 1996), cert. denied, 519 U.S. 912 (1996), overruled by District of Columbia v. Heller, 554 U.S. 570 (2008).

After Heller corrected us and made clear that the Second Amendment recognizes “an individual right to keep and bear arms,” 554 U.S. at 595, we created a “means-ends” interest balancing test where we would (1) determine whether the challenged law affected conduct historically protected by the Second Amendment; and (2) apply varying levels of scrutiny to review the constitutionality of the regulation. See, e.g., Young v. Hawaii, 992 F.3d 765, 783–84 (9th Cir. 2021) (en banc), vacated, 142 S. Ct. 2895 (2022). We selected the level of scrutiny based on (1) how close the law came to the “core” of the Second Amendment right and (2) the severity of the law's burden on that right. E.g., United States v. Chovan, 735 F.3d 1127, 1138 (9th Cir. 2013), abrogated by Bruen, 597 U.S. at 17. Essentially always, these steps led us to apply a form of so-called “intermediate scrutiny,” under which we required “(1) the government's stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective.” Id. at 1139.

That framework was so malleable that it effectively amounted to rational basis review. Guns are dangerous, after all, and we always found the government's interest in mitigating such danger to be important. See McDougall v. Cnty. of Ventura, 23 F.4th 1095, 1122 n.9 (9th Cir.) (VanDyke, J., concurring), reh'g en banc granted, opinion vacated, 26 F.4th 1016 (9th Cir. 2022), and on reh'g en banc, 38 F.4th 1162 (9th Cir. 2022). And we watered down the “reasonable fit” prong to such an extent that the government merely had to show that its regulation “promote[d] a substantial government interest that would be achieved less effectively absent the regulation.” Silvester v. Harris, 843 F.3d 816, 829 (9th Cir. 2016) (emphasis added) (citation omitted). As I've explained, it's hard to imagine how a law could survive even rational basis review if the State's interest would be achieved more effectively without a challenged law. McDougall, 23 F.4th at 1123 n.11 (VanDyke, J., concurring). So this test, labeled “intermediate scrutiny,” imposed effectively no scrutiny. Under it, a State's regulatory concerns always trumped the individual plaintiff's right to keep and bear arms. I'm not exaggerating: between Heller in 2008, and Bruen in 2022, we considered at least 50 Second Amendment challenges—significantly more than any other circuit—and ultimately denied all of them. Duncan v. Bonta, 19 F.4th 1087, 1165–66 (9th Cir. 2021) (en banc) (VanDyke, J., dissenting), vacated, 142 S. Ct. 2895 (2022). If you were a sports fan, and one team was literally undefeated for more than a decade, you might suspect that something was up.

Then came Bruen, where the Supreme Court expressly rejected the use of such interest balancing “means-end scrutiny in the Second Amendment context” and described the two-step approach as “one step too many.” 597 U.S. at 19. Instead, we are to apply the Second Amendment's text and historical understanding. Id. at 26. If the “Second Amendment's plain text covers an individual's conduct,” then “the Constitution presumptively protects that conduct.” Id. at 17. The government may rebut that presumption only if it “affirmatively prove[s] that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 19. This requires the government to “identify a well-established and representative historical analogue,” and we must decide whether the challenged regulation and historical analogues are “relevantly similar.” Id. at 29, 30 (citation omitted). Our “central” consideration should be whether the modern regulation “impose[s] a comparable burden on the right of armed self-defense” and whether “that burden is comparably justified.” Id. at 29. Simply, the historical analogues and challenged regulation must have a similar “how” and “why.” Id.

But since Bruen, we've quickly come up with a number of other analytical jukes to continue our resistance to the Second Amendment. For example, we've misread Bruen as creating two separate tests: what we've called the “more nuanced approach” and the “straightforward” approach. See, e.g., Duncan v. Bonta, 133 F.4th 852, 870–72 (9th Cir. 2025) (en banc). Seizing on a few lines from Bruen, we've decided that a more “nuanced” or “flexible analogical” approach applies when a modern regulation seeks to address new “societal concerns” or “dramatic technological changes.” Id. at 874 (citation omitted). The more “flexible analogical approach” seemingly lets us skip over rigorous application of Bruen's history and tradition test and uphold a weapons regulation if we decide—which we inevitably do—that there's a difference between the technology and societal problems that existed at the Founding and those that exist today. See id. at 873–74.

In other cases, we've held that restrictions on “ancillary rights”—like the right to acquire firearms in the first place—do not come within the Second Amendment's plain text at all unless they “meaningfully constrain” the right to keep and bear arms for self-defense. See B & L Prods., Inc. v. Newsom, 104 F.4th 108, 117–19 (9th Cir. 2024). This language appears nowhere in the Second Amendment, Heller, or Bruen, but that didn't stop us from asserting that it “faithfully tracks the Second Amendment's plain text.” Id. at 119. And given our track record with the Second Amendment, you might correctly expect that we'd find all sorts of weapons-related restrictions not really all that “meaningful.”

The panel's decision here is another good example of how we can avoid meaningful Second Amendment scrutiny. Under the panel's view of facial challenges, virtually any categorical weapons ban could be upheld if a historical analogue justifies banning a small subset of the outlawed activity. Just enact the same ban from Bruen or Heller, include a narrow application that is constitutional and—voila!—your firearms ban is now facial-challenge-proof. Americans who want to exercise their constitutional rights will have to chip away at the law one as-applied challenge at a time. We wouldn't treat other rights this way. 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. See Virginia v. Black, 538 U.S. 343, 359 (2003); Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam). If Oregon's legislature passed a law permitting warrantless searches in all circumstances, we would never uphold it just because it could authorize consent searches or searches pursuant to the emergency aid exception. See Fernandez v. California, 571 U.S. 292, 298 (2014); Michigan v. Fisher, 558 U.S. 45, 47 (2009) (per curiam). And if Washington's legislature provided that no indigent criminal defendant would henceforth be appointed counsel at any stage of any criminal proceeding, we wouldn't uphold that statute because it could be constitutionally applied to deny counsel in the context of post-conviction proceedings. See Garza v. Idaho, 586 U.S. 232, 245 (2019). And so on.

What's more, post-Bruen—just as before—the occasional panel decision that vindicates the Second Amendment is promptly called en banc, vacated, and ultimately replaced with more circuit precedent undermining the right to keep and bear arms. See, e.g., Baird v. Bonta, 163 F.4th 723 (9th Cir.), reh'g en banc granted, opinion vacated, 172 F.4th 1105 (9th Cir. 2026); Rhode v. Bonta, 145 F.4th 1090 (9th Cir.), reh'g en banc granted, opinion vacated, 159 F.4th 1170 (9th Cir. 2025); Yukutake, 130 F.4th 1077, reh'g en banc granted, opinion vacated, 144 F.4th 1119 (9th Cir. 2025).

The bottom line is that Bruen—like Heller before it—changed nothing here in the Ninth Circuit. We still have plenty of tricks up our sleeves to avoid vindicating the Second Amendment. And we'll come up with as many more as we need to. 7

It's impossible to square any of this with the Supreme Court's instruction that the Second Amendment right to keep and bear arms should no longer be treated as a “second-class” right. Bruen, 597 U.S. at 70 (quoting McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion)). 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. See, e.g., United States v. Hansen, 25 F.4th 1103, 1105 (9th Cir. 2022) (misconstruing a federal law prohibiting “encourag[ing] or induc[ing]” illegal immigration in order to find it unconstitutionally overbroad under the First Amendment), rev'd, 599 U.S. 762 (2023); United States v. Sineneng-Smith, 910 F.3d 461 (9th Cir. 2018) (injecting sua sponte into an appeal an overbreadth challenge to this same statute), vacated and remanded 590 U.S. 371, 375 (2020) (holding that the Sineneng-Smith panel had “departed so drastically from the principle of party presentation as to constitute an abuse of discretion” and remanding “for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel”); Martin v. City of Boise, 920 F.3d 584, 603 (9th Cir. 2019) (holding that the Eighth Amendment's Cruel and Unusual Punishments Clause barred a city “from prosecuting people ․ for sleeping outside on public property when those people have no home or other shelter to go to”), abrogated by City of Grants Pass v. Johnson, 603 U.S. 520 (2024); Martinez v. City of Oxnard, 270 F.3d 852, 857–58 (9th Cir. 2001) (holding that mere “coercive questioning” violated the Fifth and Fourteenth Amendments even when the defendant's statements were not used against him in a criminal proceeding), rev'd sub nom. Chavez v. Martinez, 538 U.S. 760 (2003); Compassion in Dying v. Washington, 79 F.3d 790, 816 (9th Cir. 1996) (en banc) (holding that the “Constitution encompasses a due process liberty interest in controlling the time and manner of one's death—that there is, in short, a constitutionally recognized ‘right to die’ ”), rev'd sub nom. Washington v. Glucksberg, 512 U.S. 702 (1997).

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.

II.

That we work so hard to avoid following the Supreme Court's instructions—and have so often gotten away with it—might seem counterintuitive to the average person. When your boss tells you that you did something wrong, you might be frustrated. You might disagree. You might even vent about it off the clock with some “vulgar barroom talk.” Olympus Spa v. Armstrong, 169 F.4th 817, 845 (9th Cir. 2026) (statement of McKeown, J.). But when you're done kvetching, you'll probably try to fix the problem, because you know that if you don't, you'll soon be looking for a new job.

Yet strange as it may seem to the outside observer, that's not how it works on our court—at least when it comes to rights that a majority of my colleagues dislike (religious liberty and the Second Amendment, for example). When our boss, the Supreme Court, tells us we erred, we don't apologize, and we don't rush to fix the problem. We don't even feel the need to come up with some half-baked excuse for why the dog ate our homework. We persist in open defiance. Indeed, a majority of my colleagues, who see the law very differently than the Supreme Court on certain key issues, may even welcome the rare reversal from the Supreme Court in a case involving a hot-button social issue and view it as a badge of honor. See, e.g., Andrew Manuel Crespo, In Memoriam: Judge Stephen Reinhardt, 131 Harv. L. Rev. 2101, 2102 (2018). What better way to demonstrate your bona fides to the liberal legal establishment?

What judges on our court don't like, however, is when they're perceived as so bad at their job that they get summarily reversed. A short summary reversal sends a message so clear and stern it could embarrass even a judge on the Ninth Circuit.

So here's my modest proposal: if the Supreme Court really wants to be serious about genuinely doing something to address the Second Amendment's uniquely disfavored status in America's most populous federal circuit, it's going to need to prescribe stronger medicine than what it's given us so far.

A. The benchslap

I've been accused of using “vulgar barroom talk” to get my point across, Olympus Spa, 169 F.4th at 845 (9th Cir. 2026) (statement of McKeown, J.), so let me assuage my colleagues' selective Victorian predilections up front. Calm down. In making my recommendation today, I've chosen a word that, while evocative, would never be the punchline to a coarse joke at your local bar, and even has an official entry in the lawyer's dictionary of choice.

Black's Law defines “benchslap” as “[a] judge's sharp rebuke of counsel, a litigant, or perhaps another judge[.]” Benchslap, Black's Law Dictionary (12th ed. 2024). Basically, a benchslap is a form of stern judicial correction designed to impose public shame for improper litigation or judicial conduct. See Joseph P. Mastrosimone, Benchslaps, 2017 Utah L. Rev. 331, 334 (2017). Wayward attorneys have been benchslapped for everything from engaging in the “ostrich-like tactic” of pretending that adverse precedent does not exist, 8 to citing A.I.-hallucinated cases, 9 to asking to suspend a murder trial to attend the annual Ernest Hemingway look-alike contest. 10 The deterrent effect is real. Nobody wants to become insta-famous for receiving the viral benchslap of the day.

The benchslap isn't just a tool for overworked judges to deal with the latest antic of unprofessional counsel. It's also a tool our nation's highest Court has sometimes deployed to correct lower courts' repeated refusal to follow precedent. The Supreme Court's benchslaps are more formally known as summary reversals. A summary reversal occurs when the Supreme Court grants certiorari and immediately reverses the lower-court decision, without merits briefing or argument, “rather than the more usual grant of certiorari, followed by three sets of briefs on the merits, oral argument, and a decision several months after certiorari was granted.” Edward A. Hartnett, Summary Reversals in the Roberts Court, 38 Cardozo L. Rev. 591, 591–92 (2016).

Summary reversals serve several purposes. Commentators note that they “enforce the Court's supremacy over recalcitrant lower courts,” William Baude, Foreword: The Supreme Court's Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 2 (2015), and “rebuke lower courts for resisting the Supreme Court's commands,” Richard C. Chen, Summary Dispositions as Precedent, 61 Wm. & Mary L. Rev. 691, 710 (2020). Justices on the Supreme Court have likewise described summary reversal as “bitter medicine,” Spears v. United States, 555 U.S. 261, 268 (2009) (Roberts, C.J., dissenting), prescribed when lower courts “seek to defy” Supreme Court precedent, Pavan v. Smith, 582 U.S. 563, 568 (2017) (Gorsuch, J., dissenting).

These sterile descriptions, while accurate, don't fully capture the stinging impact of a summary reversal. When the Supreme Court summarily reverses, it's essentially sending a clear (if harsh) message to a lower court:

Dear lower court:

Your decision sucks․ And it sucks so badly, it isn't even worth a closer look.

Kindly re-do it.

Regards,

The Supreme Court.

I have to respectfully disagree with commentators who have criticized the benchslap as a form of inappropriate judicial bullying. See Mastrosimone, Benchslaps, 2017 Utah L. Rev. at 353, 375–76. While it's no doubt strong medicine, a benchslap can be a form of much-needed judicial correction in response to demonstrated lower court recalcitrance.

To see just how effective a series of summary reversals from the Supreme Court can be, consider an example from recent Ninth Circuit history. In the mid-2000s, the Antiterrorism and Effective Death Penalty Act (AEDPA) had been the law for nearly a decade, instructing federal courts not to grant habeas relief unless the state court's decision is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Yet some federal courts of appeals (any guesses as to which?) persisted in open defiance of Congress's command. Because the Supreme Court could not realistically grant certiorari to correct every single misapplication of AEDPA, it began issuing summary reversals.

From 2005 to June 2019, the Supreme Court summarily reversed eighty-eight cases. Chen, Summary Dispositions as Precedent, 61 Wm. & Mary L. Rev. at 706 & n.74. Forty-one of those summary reversals came in federal habeas cases. Id. at 707 & n.81. Our court was a particularly bad offender and therefore a frequent recipient of the Supreme Court's summary reversals during this period: by my count, fifteen (more than a third) of the Supreme Court's habeas summary reversals corrected Ninth Circuit decisions. 11 To give a flavor of these summary reversals, consider Glebe, where the Supreme Court summarized the improper reasoning employed by a panel of this court and then responded with one word: “No.” Glebe, 574 U.S. at 25. When the Nation's highest Court issues the same monosyllabic correction that a frazzled parent gives her whining toddler, it's kind of embarrassing (to the toddler).

It worked. While the process wasn't pleasant, our AEDPA decisions improved. Judges on our court now more often—although sadly not always—afford the appropriate level of deference to state-court decisions that AEDPA requires.  12 And when they're tempted to reverse simply because they would have analyzed the case differently had they been in the shoes of the relevant state court, my more “experienced” colleagues at least have the threat of a possible summary reversal in the back of their mind. That fear of a summary reversal provides a greater incentive to behave than any concern about the occasional reversal in a full Supreme Court opinion.

B. Benchslaps for the Second Amendment

Our historical (and, sometimes, ongoing) resistance to the Supreme Court's AEDPA jurisprudence pales in comparison to our unwavering defiance of the Court's Second Amendment jurisprudence. Even before the decade of Supreme Court AEDPA summary reversals, we would at least occasionally apply the proper level of deference to state-court decisions. In contrast, we effectively never vindicate the right to keep and bear arms. And when a panel does, our court takes the decision en banc, vacates the panel's decision, and ultimately upholds the arms regulation. By this point, it is clear enough that a Second Amendment reversal every few years sadly does nothing to protect the particularly disfavored constitutional right to keep and bear arms. It's equivalent to the parent of a chronically delinquent child taking away TV privileges for fifteen minutes for one day every few years and hoping that will somehow put the child back on the straight and narrow. Not going to work. But a series of good summary reversals—and given our Court's intransigence, it will take more than one—could.

As I see it, the summary reversal approach has several key advantages. First, Justices on the Supreme Court are so busy. Issuing summary reversals will save them time and allow them to address other important issues rather than correcting our blatantly errant work. Our circuit decides more Second Amendment cases than any other, and it's simply not possible for the Supreme Court to grant certiorari in every one of our wayward decisions. But summarily reversing and remanding for a second try will enable the Supreme Court to expedite the process and put an end to the “can't catch 'em all” game our court loves to play. See Linda Greenhouse, Dissenting Against the Supreme Court's Rightward Shift, N.Y. TIMES (Apr. 12, 2018).

Second, by summarily reversing, the Supreme Court won't have to develop new doctrine or waste time repeating holdings it has already made. It can just cite Bruen and force our court to gain some much-needed practice faithfully applying the proper Second Amendment framework. Most of my colleagues can't fathom writing a pro-Second Amendment opinion. They need to get some reps in. Forcing them to bite the bullet and make a ruling they disagree with will operate as a form of exposure therapy. The first time writing an opinion that enforces the Second Amendment will no doubt feel scary. But after doing it a few times, they'll realize it's not so bad as they thought.

Third, the threat of embarrassment on summary reversal will allow the core message of Bruen finally to sink in: laws that restrict the right to keep and bear arms—just like laws that restrict any other fundamental right—are presumptively unconstitutional. 597 U.S. at 24. This means that, while applying the Bruen framework is “not always easy,” many Second Amendment cases are simply “not hard.” Wolford v. Lopez, 609 U.S. ––––, ––––, 2026 WL 1825723, at *20 (June 25, 2026) (Barrett, J., concurring) (emphasis added).

But you'd never know that if you follow this court's Second Amendment jurisprudence. The truth is that a majority of my colleagues treat every arms restriction as presumptively constitutional and then have to work really hard to confirm that presumption. Consequently, in our circuit, the line between hard and easy cases doesn't exist. Every Second Amendment case turns into a hard one. Take the very recent case of Wolford, for example, where the Supreme Court easily backhanded Hawaii's attempt to justify its law prohibiting firearms on private property without the express and affirmative consent of the property owner by pointing to colonial anti-poaching laws. 609 U.S. at ––––, 2026 WL 1825723, at *12–13. Could laws prohibiting unauthorized hunting on private land justify banning lawful public carry in every “gas station, coffee shop, grocery store, or other private property open to the public without express and unambiguous consent?” Id. at *13. Obviously not, the Supreme Court said: “The question answers itself.” Id. But not for us! We treated Wolford like an unsolvable Gordian knot that could be untied only by ․ you guessed it ․ deferring to the State's regulatory concerns and upholding the ban. See Wolford v. Lopez, 116 F.4th 959, 976–1003 (9th Cir. 2024), cert. granted in part, 146 S. Ct. 79 (2025), rev'd and remanded, 609 U.S. ––––, 2026 WL 1825723. And we do the same thing in every Second Amendment case. It's always complicated. There's always so much arduous analysis. And the final result is always the same: the arms restriction must win.

Our court's efforts are a crucial part of a broad and energetic campaign to deliberately overcomplicate Bruen. Legal academics, the mainstream media, and complicit judges are working overtime to push hard the narrative that Bruen is unworkable, unclear, and just too difficult to apply. Some say “[h]istory is messy,” “not straightforward or fair,” and that it “makes no sense for contemporary society to pledge allegiance to the founding era's ․ understanding of the Constitution.” See State v. Wilson, 543 P.3d 440, 453–54 (Haw. 2024), abrogated in part by Wolford, 609 U.S. at ––––, 2026 WL 1825723, at *11. Some say Bruen is “insane” to require judges “to hunt down obscure, colonial-era statutes” “from the age of muskets” to justify “perfectly sensible gun laws.” Ruth Marcus, Ye olde Supreme Court? Your originalism is making America unsafe., Washington Post, (Feb. 4, 2023). Some, like former district court judge Kimberly J. Mueller, strangely spend 15 pages of an order trashing Bruen itself—cribbing from the “greatest hits” list of Heller and Bruen critics—before purporting to apply Bruen faithfully to the case at hand (and, shocker, finding no Second Amendment violation). See Baird v. Bonta, 709 F. Supp. 3d 1091, 1093, 1103–1118 (E.D. Cal. 2023), aff'd in part, rev'd in part, 163 F.4th 723 (9th Cir.), vacated, 172 F.4th 1105 (9th Cir. 2026). 13 These, and many other, voices cry out in unison: “Bruen is just too hard to apply. Please! Return to interest balancing!”

As with any constitutional right, no doubt there are going to be some hard Second Amendment questions. But there is an obvious disconnect when Justices of the Supreme Court emphasize that Second Amendment questions it just reviewed “are not hard,” Wolford, 609 U.S. at ––––, 2026 WL 1825723, at *20 (Barrett, J., concurring)—indeed, are so easy that the government's arguments “cannot be taken seriously,” id. at ––––, 2026 WL 1825723, at *14—while our court, considering the same issues, murdered a small forest of trees with myriad pages of dense and opaque analysis before “taking a step back” from its final “analysis” and acknowledging its conclusion about “the lists of places where a State likely may ban ․ the carry of firearms appear[s] arbitrary” and “the lack of an apparent logical connection ․ is hard to explain in ordinary terms.” Wolford, 116 F.4th at 976–1003. As Wolford shows, applying Bruen in this circuit is only hard because my colleagues are stretching their considerable analytical and imaginative powers to the limit in search of any possible way to uphold an arms restriction—effectively applying a presumption of constitutionality. Tell any first-year law student about a city code “that target[s] speech based on its communicative content,” and they'll quickly and intuitively recognize that the law is probably unconstitutional and unlikely to survive judicial review. Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015). “Easy” Second Amendment cases should be similar. The fact that my court has never encountered an “easy” Second Amendment case is a huge tell of how vigorously we are collectively kicking against the goads.

Summarily reversing—telling lower courts in unignorable and unmistakable terms: (1) you got it badly wrong; (2) this is an easy question; (3) try again—will reinforce that laws burdening the Second Amendment right are presumptively unconstitutional—not just in theory, but in reality. That presumption should make many cases an easy call. This, in turn, will allow the Supreme Court to focus its energies on the actually hard cases.

Finally, a word in response to Judge Wardlaw. I agree that if we were only dealing with “differing interpretations of the law,” then the stern criticism that I've employed here wouldn't be necessary. Concurrence of Wardlaw, J., at 13. But let's stop pretending: our Second Amendment jurisprudence is rooted not in “differing interpretations of the law,” but in this court's consistent, long-term, demonstrated refusal to follow the law. If the results in our Second Amendment cases really reflected a diversity of views among the majority of my colleagues, you'd expect a diversity of outcomes. Instead, we have a shockingly monolithic jurisprudence: the government wins, the Second Amendment loses.

Despite this glaring track record, our court loves to give lip-service to the fiction that “all agree” the Second Amendment is not a “second-class right,” and that our court's Second Amendment jurisprudence is simply the byproduct of reasonable disagreement from case-to-case. Id. at 11. That is precisely what I am disputing. My point—one Judge Wardlaw never addresses, instead attempting to just shoot the messenger—is that when it comes to the Second Amendment, the “exceptions” always win, which can only be explained by an underlying bias against the Second Amendment. Cf. id. And because of that, we'll continue discovering and creating as many new “exceptions” as we need to ensure that doesn't change. The content and tone of this dissent is necessary precisely because of our court's consistent attempts, like Judge Wardlaw's here, to simply wave our hands in an attempt to distract from the severity of our Second Amendment recalcitrance by strategically deployed complexity and manipulative calls for faux collegiality. At some point our court's cover-up will stop working. I'm asking the Supreme Court to help in that regard.

If we are truly concerned about the “credibility” of our court, and our reputation as judges, we should follow the law rather than contort it to reach our preferred outcomes. It should go without saying: we should care more about being credible than about looking credible.

* * *

We should have taken this case en banc. But our refusal to do so surprises no one. Even after Bruen, we still have an arsenal of ways to avoid doing the unthinkable: applying the Second Amendment of the United States Constitution. 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.

Until the Supreme Court takes more serious and sustained action to correct us, our court's Second Amendment case law will never improve. Wolford's nice, but it literally affects nothing on my court. To paraphrase 17th-century satirist Samuel Butler, “What med'cine else can cure the fits/ Of [judges] when they lose their wits?” 14 Some benchslaps, that's what.

This case asks whether California's ban on the carrying of switchblade knives violates the Second Amendment. The panel rejected a facial challenge to this ban, and it did so on the basis of a tradition banning the concealed carrying of knives.

That reasoning is wrong. A tradition prohibiting only one form of carry (concealed) but permitting another form of carry (open) does not justify prohibiting all forms of carry (concealed and open), which California's ban does. In holding otherwise, the panel retreads a path that the U.S. Supreme Court in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022), expressly foreclosed. The panel's decision also conflicts with a State Supreme Court decision concluding that the Second Amendment protects the carrying of switchblade knives.

The panel's reasoning is not just wrong. It should set off alarm bells. If accepted, it would upend Bruen and essentially shield from constitutional scrutiny any law that categorically and totally bans the carrying of arms. Never would our court have tolerated, with respect to any other constitutional right, the sort of analytical move that the panel made here. The Supreme Court even reminded us just last month that “[t]he right protected by the Second Amendment is entitled to no less protection than other constitutional rights.” Wolford v. Lopez, 609 U.S. ––––, –––– n.13 (2026). We should have granted en banc review to fix the panel's obvious error and its open circumvention of the Supreme Court's instructions. I dissent.

I.

A.

Perhaps no tool has been more important to man's survival than the knife. Since the Stone Age, knives have been used for all sorts of purposes, including as weapons and cutting tools. Harold L. Peterson, Daggers and Fighting Knives of the Western World, from the Stone Age till 1900 1–2 (1968) (“Daggers and Fighting Knives”). When Viking explorers reached American shores a millennium ago, they carried scramasaxes on their persons—bladed “weapons so highly prized, it is said, that they never left their owner's side day or night.” Harold L. Peterson, American Knives: The First History and Collectors' Guide 6 (1958) (“American Knives”). In the 1600s, English settlers in the colonies carried knives too—most popularly, the “kidney” knife, with lobes that formed its hilt. Id. at 14. In the 1700s, frontiersmen (including those who later fought in the American Revolution) could not do without knives, which were used for scavenging, hunting, and defense. Id. at 21; see also George C. Neumann, Swords and Blades of the American Revolution 14 (1973) (“Swords and Blades”) (“Belt and pocket knives, too, accompanied him in the developing eastern settlements and on the western frontier.”).

Simply put, “[k]nives and daggers were personal necessities to the early American.” Swords and Blades at 227. “Everyone had a knife” during the colonial period, and “[a]s long as a man was required to defend his life,” a “knife was a constant necessity.” American Knives at 6. Well into the 1800s, too, “men of all walks of life” were “accustomed to wear a knife as a necessary part of their garb.” Daggers and Fighting Knives at 68. By the Civil War, “knife manufacture” in the United States “was in full swing”—as “an age of specialization in pocketknives” (of which the switchblade knife was a species) “set in.” American Knives at 133, 137.

The switchblade knife, in particular, has had a storied history. Generally defined, a switchblade is a type of pocketknife that releases a folding or sliding blade upon the pressing of a button or lever. “Springblade knives” (a precursor to the modern switchblade) “have been made for hundreds of years because there has always been a need for a pocketknife that can be opened easily when the hands are wet, cold, or covered with gloves.” Ben Myers & Lowell Myers, An Introduction to Switchblade Knives 6 (1982) (“An Introduction to Switchblade Knives”). In the 1700s, for example, certain types of flint-lock pistols incorporated such knives; “[i]f the pistol mis-fired (which frequently happened) the person would touch the release button and the blade would open up, and be available for use.” Id.; see also H. Gordon Frost, Blades and Barrels 230–32 (1972); Knife Rights, Inc. v. Bonta, 165 F.4th 1330, 1333 (9th Cir. 2026) (“Primitive switchblades date back to at least the eighteenth century[.]”).

Patents for switchblade knives proliferated immediately after the Civil War. The “gravity knife” (the blade of which is released by gravity as opposed to a spring or other mechanism) was patented in 1862. See An Introduction to Switchblade Knives at 94; U.S. Patent No. 35,964 (“This device is particularly intended for carpenters' use, and its principal advantage is that it can be opened and closed with one hand. It is a very simple instrument, which can be used in place of the ordinary pocket-knife, and which can be made at a trifling cost.”). Patents for other variants quickly followed—the “compressed spring straight-line knife” (1866); the “coiled-spring side-opening knife” (1878); the “curved-spring side-opening knife” (1883); the “pull-spring knife” (1895); the “compressed spring side-opening knife” (1922); the “pin-pull” knife (1944); and many more. See An Introduction to Switchblade Knives at 23–25, 28–29; U.S. Patent No. 57,902; U.S. Patent No. 199,766; U.S. Patent No. 273,858; U.S. Patent No. 551,052; U.S. Patent No. 1,412,373; U.S. Patent No. 2,360,165.

The large-scale production of “switchblades in the United States began in the 1880s, shortly after the first switchblade patents were granted in this country.” Mark Erickson, Antique American Switchblades: Identification & Value Guide 6 (2004) (“Antique American Switchblades”). “Over a 50 year period from the mid 1890s to the mid 1940s there had been approximately 20 different companies who had manufactured switchblade knives in this country.” Id.; cf. Knife Rights, 165 F.4th at 1333 (“[M]odern switchblades did not become popularized in the United States until after World War II.”).

Switchblade knives served many useful purposes other than as a weapon. For instance, such knives “were extremely handy for the fisherman and there was a time when most tackle boxes were not complete without a switch blade knife inside.” Antique American Switchblades at 6. “There were switchblades specifically designed for hunters, fishermen, soldiers, farmers, veterinarians, mechanics, office workers, seamstresses, high school girls, Boy Scouts and also for Girl Scouts.” Id. The automatic-release feature of the switchblade “save[d] many broken fingernails.” Id.; see also 13-ER-3219 (“Automatic Push Button Knife by Edgemaster”).

The switchblade, the Department of Justice had opined, “is not inherently dangerous but requires the introduction of a wrongful human element to make it so.” Letter from Deputy Attorney General William P. Rogers to Representative Oren Harris (Apr. 12, 1957), in Senate Report No. 1980 (July 28, 1958) (responding to a congressional request for the Department's view concerning a bill that would “prohibit the introduction, or manufacture for introduction, into interstate commerce of switchblade knives”). “Switchblade knives in the hands of criminals are, of course, potentially dangerous weapons.” Id. But “they serve useful and even essential, purposes in the hands of persons such as sportsmen, shipping clerks, and others engaged in lawful pursuits[.]” Id.; see also Paul Clark, Criminal Use of Switchblades: Will the Recent Trend Towards Legalization Lead to Bloodshed?, 13 Conn. Pub. Int. L.J. 219, 233 (Spring-Summer 2014) (detailing “numerous” examples of “useful” purposes that switchblades serve including a “medical provider” “need[ing] to use one hand to push pressure on a wound” and “us[ing] the other hand to cut away clothing or restraints”).

It was not until the 1950s that legislatures sought to ban a person from carrying a switchblade knife. Motion-picture films made during this period portrayed the phenomenon of teenage gang violence, linked such violence with the switchblade knife, and galvanized support for switchblade bans. See An Introduction to Switchblade Knives at 9; Clark, Criminal Use of Switchblades, 13 Conn. Pub. Int. L.J. at 236 (“Some of the most famous movies of the 1950s prominently featured switchblades Switchblades came to be associated with crime, and especially juvenile delinquency in New York.”); see also Jack H. Pollack, The Toy that Kills, Woman's Home Companion, Nov. 1950, at 38.

In 1957, the State of California banned a person from carrying “concealed upon his person” a “switch-blade knife having a blade over two inches in length.” Cal. Stats. 1957, c. 355, p. 999, § 1. That statute did not ban, however, the open carrying of a switchblade knife. Thirty years later, the California legislature amended the law to prohibit not only the concealed carry of the switchblade knife, but also the open carrying of that knife. Cal. Stats. 1986, c. 1422, p. 5116, § 1. The current version of the prohibition remains materially unchanged. As relevant here, the statute makes it a crime for a person to carry a switchblade knife (whether openly or in a concealed manner in public). See Cal. Pen. Code §§ 21510, 17235. 1

B.

Plaintiffs brought a challenge, under the Second and Fourteenth Amendments, to the California statute banning the carrying of switchblade knives. The Second Amendment (incorporated by the Fourteenth Amendment to the States) provides that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. The Supreme Court has instructed us to follow a two-step test in assessing whether a challenge under the Second Amendment is valid—first, “when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct”; and second, “[t]o justify its regulation, the government may not simply posit that the regulation promotes an important interest.” Bruen, 597 U.S. at 17. “Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation.” Id. Only if an arms “regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's ‘unqualified command.’ ” Id. (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).

Before the district court, Plaintiffs argued that, under Bruen, California's ban on the carrying of switchblade knives is unconstitutional. Plaintiffs claimed that the conduct of carrying such knives fell within the scope of the Second Amendment's plain text (step one of Bruen) and that the State of California failed to shoulder its burden of demonstrating (at step two) that its ban was consistent with this Nation's historical tradition of arms regulation. 5-ER-1055–74.

The district court granted summary judgment against Plaintiffs. It reasoned that Plaintiffs failed to satisfy step one of the Bruen test because Plaintiffs failed to show that switchblade knives were “arms” in common use today. Knife Rights, Inc. v. Bonta, No. 3:23-cv-00474-JES-DDL, 2024 WL 4224809, at *7 (S.D. Cal. Aug. 23, 2024). The district court also concluded that the State had not met its burden at step two, but because in the court's view Plaintiffs failed at step one, the district court upheld the ban. Id. at *8–9.

The panel sustained the ban on different grounds. It assumed (without deciding) that, at step one of Bruen, switchblades were “arms” presumptively protected under the Second Amendment. Knife Rights, 165 F.4th at 1339. But the panel held that the State satisfied step two (thus rebutting the presumption) by demonstrating a national tradition analogous to California's ban. Id. at 1345.

The panel conducted the step-two analysis in the following way. First, the panel construed Plaintiffs' challenge as a facial challenge and required Plaintiffs to show that the ban was unconstitutional “in all of its applications.” Id. at 1335. Next, the panel asserted that one of those applications is a prohibition on the concealed carrying of switchblade knives—even though the statute does not distinguish between concealed carry and open carry, but criminalizes, on its face, any carrying of switchblade knives. Id. at 1341–45. The panel then found that there was a historical tradition banning the concealed carrying of weapons, including knives, and therefore there was an application of the ban that was lawful. Id. at 1341. Critical to its analysis, the panel relied on the Supreme Court's statement in District of Columbia v. Heller, 554 U.S. 570 (2008), that “prohibitions on carrying concealed weapons were lawful under the Second Amendment[.]” Knife Rights, 165 F.4th at 1341 (quoting Heller, 554 U.S. at 626). Accordingly, the panel concluded, Plaintiffs' facial challenge could not succeed.

II.

The panel's opinion is flawed. In sustaining California's total ban on public carry, the panel invoked a historical tradition of laws banning the carrying of concealed weapons (including firearms and knives) while ignoring that those same laws also allowed for the open carrying of those weapons. The panel's reasoning runs directly counter to Bruen. As the Supreme Court made clear in that case, a tradition of concealed-carry bans is not enough to justify a total ban like the one that California imposes on its citizens. Bruen, 597 U.S. at 53.

To justify California's total ban, the panel cites Heller's statement that “prohibitions on carrying concealed weapons were lawful under the Second Amendment.” Knife Rights, 165 F.4th at 1341 (quoting Heller, 554 U.S. at 626). But that statement cannot bear the weight that the panel places on it. Addressing the very same quotation that the panel cites, Bruen concluded that “concealed-carry prohibitions were constitutional only if they did not similarly prohibit open carry.” 597 U.S. at 53 (emphasis in original). In other words, concealed-carry prohibitions would not be constitutional if they also banned open carry. Id. at 54 (“[I]t was considered beyond the constitutional pale in antebellum America to altogether prohibit public carry.”). Here, California bans both concealed and open carry of switchblades, and hence it is not proper for the panel to invoke laws that ban only concealed carry as historical support for a ban on public carry altogether.

The relevant passage from Bruen is worth quoting in full, not only because the panel disregarded it entirely, but also because it shows that the Supreme Court expressly rejected the exact reasoning that the panel employs here:

In the early to mid-19th century, some States began enacting laws that proscribed the concealed carry of pistols and other small weapons. As we recognized in Heller, “the majority of the 19th-century courts to consider the question held that [these] prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” Respondents unsurprisingly cite these statutes—and decisions upholding them—as evidence that States were historically free to ban public carry.

In fact, however, the history reveals a consensus that States could not ban public carry altogether. Respondents' cited opinions agreed that concealed-carry prohibitions were constitutional only if they did not similarly prohibit open carry. All told, these antebellum state-court decisions evince a consensus view that States could not altogether prohibit the public carry of “arms” protected by the Second Amendment or state analogues.

Id. at 52–55 (emphasis in original) (citations omitted).

The import of all this is plain. Just like the government parties in Bruen, the panel here mistakenly relies on laws that contain a concealed-carry prohibition but not a similar prohibition on open carry. As far as I can gather, there is no historical tradition of totally banning the public carrying of knives (including switchblades).

Indeed, the opposite appears to be true. The vast majority of laws the panel itself cites allowed some sort of public carry (usually open carry). See Appendix A. Even today, it appears that only seven States (including California) and the District of Columbia expressly ban the possession or carrying of switchblade knives. 2 Doubtless, a small handful of territorial laws cited by the panel banned the carrying of knives (see Appendix B), but Bruen already explained that the government's reliance on such territorial laws was misplaced (e.g., they were “rarely subject to judicial scrutiny,” the populations living under them were “miniscule,” and they were “short-lived”), and those scattered laws could not, in any event, displace the overwhelming historical evidence permitting some form of public carry. See 597 U.S. at 67–69. A few other laws cited by the panel are irrelevant—either because those laws did not prohibit knives at all or because they prohibited the carrying of knives with intent to harm or in sensitive places (qualifications that California's total ban lacks). See Appendix C. The few remaining laws that the panel cites did ban public carry of knives altogether (see Appendix D (fewer than ten)), but those are limited “outliers” in relation to the far more widespread tradition permitting some form of public carry. Bruen, 597 U.S. at 70. 3 Contrary to the panel's conclusion, then, there is no national tradition that is analogous to California's total ban on the public carrying of switchblades. 4 That alone provides grounds to vacate the panel's opinion.

The panel cannot point to its “facial” analysis to salvage its opinion. It is true (as the panel says) that a facial challenge can succeed only if the plaintiff shows that there exists “no set of circumstances” under which the law would be valid. United States v. Rahimi, 602 U.S. 680, 693 (2024) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). But beyond that, the panel's analysis veers off track: one “application” of the total ban, the panel says, is a ban on the concealed carrying of the knife; the panel then narrows its historical inquiry to ask if there was a tradition banning such concealed carrying. Knife Rights, 165 F.4th at 1341. But that “facial” analysis is improper. The challenged statute is a total ban—not a concealed-carry ban. And so, any historical analysis (under the second step of Bruen) must be conducted with respect to that ban—not some other, narrower ban that the legislature did not enact. The proper historical comparator, therefore, would be a tradition banning public carrying altogether (like California's law). If (as here) no such tradition exists, the total ban cannot be constitutional under any circumstance.

It is hard to see how the analysis could proceed otherwise. 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. 5 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. If the panel were right, courts could maneuver with ease around Bruen and Heller merely by reconceiving the bans as something narrower. But a court must take the ban as it comes. And it must assess the government's proffered historical analogues against that ban, not some other ban. A court is not allowed, by clever craft, to immunize total bans from facial constitutional scrutiny and reduce our “palladium of liberty” to a near nullity. Heller, 554 U.S. at 606 (quoting 1 Tucker's Blackstone at App. 300).

Invoking Rahimi does not help the panel. There, the Court rejected the plaintiff's facial challenge to 18 U.S.C. § 922(g)(8). That statute prohibits the carrying of a firearm by any person who is subject to a “court order” (issued after notice and opportunity for a hearing) that restrains the person from threatening an intimate partner or child, and that either (1) “includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child” or (2) “by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury[.]” 18 U.S.C. § 922(g)(8)(C)(i), (C)(ii). The two ways described above in which the “court order” could subject a person to criminal liability under section 922(g)(8) are contained, respectively, in sub-provisions (C)(i) and (C)(ii). The Court in Rahimi held that, in order for the plaintiff to prevail in his facial challenge to section 922(g)(8), he needed to show that both sub-provisions were unconstitutional and, because he could not do that with respect to sub-provision (C)(i), his challenge to section 922(g)(8) necessarily failed. 602 U.S. at 693.

That analysis has no bearing here on California's total carry ban. To start, California prohibits any law-abiding citizen from carrying a tool that has been used and carried for hundreds of years. It does not just impose a ban on persons, deemed dangerous by a court, from possessing arms. California's law is thus completely different from section 922(g)(8). Key to the Court's facial analysis in Rahimi, too, section 922(g)(8) “provides two independent bases for liability.” 602 U.S. at 693. Thus, if one basis was constitutionally permissible (as the Court found), then the plaintiff's facial challenge to section 922(g)(8) would not succeed.

But that is just not the sort of challenge that Plaintiffs mount here. Plaintiffs challenge a total ban on public carry; it is the combined effect of banning both concealed carry and open carry that works the constitutional violation. For the panel to disaggregate one effect (a ban on concealed carry) from the other effect (a ban on open carry), and then to find that the former is permitted and conclude that Plaintiffs' challenge fails, is to misconstrue the nature of Plaintiffs' claim altogether.

Perhaps it is easier to see the fallacy in the panel's logic if we removed ourselves from the often-fraught Second Amendment context. A facial challenge to a complete prohibition on a litigant's access to the courts is not defeated simply because it would be permissible to deny access some of the time (e.g., non-business hours and federal holidays). Nor would a facial challenge to a complete ban on protesting be defeated merely because protesting could lawfully be restricted by time, place, and manner. So too here: a facial challenge to a complete prohibition on carrying cannot be nixed just because the State could permissibly prohibit some form of carrying. The State cannot ban all forms of carrying (as Bruen teaches). That is what Plaintiffs are challenging.

Even if the ban here could be conceived more narrowly, the panel's conclusion would still be wrong. Bruen again tells us why. The case addressed a facial challenge to a concealed-carry restriction, and even in the context of that narrow challenge (not a challenge to a total ban), the Court held that the government could not justify the concealed-carry restriction by pointing to a history of concealed-carry prohibitions, which (again) “were constitutional” only because “they did not similarly prohibit open carry.” 597 U.S. at 53 (emphasis in original). 6 The upshot is this: if reliance on historical concealed-carry bans could not defeat a challenge to a modern concealed-carry restriction in Bruen, then surely it cannot defeat a challenge to a narrowed conception of California's ban as “applied” to concealed carry here.

En banc review was warranted not only because the panel's analysis is wrong. It was warranted also because the panel's decision produces a conflict with the decision of at least one State Supreme Court.  7 In Commonwealth v. Canjura, the Supreme Judicial Court of Massachusetts held that a state law prohibiting people from carrying switchblade knives violated the Second Amendment. 494 Mass. 508, 509 (2024). The court concluded that a switchblade is an “arm” under “the plain text of the Amendment” and that the government failed to demonstrate that the state “prohibition is consistent with this nation's historical tradition of arms regulation.” Id. at 511. The court also ruled that switchblades are in “common use” today for self-defense and are not “dangerous and unusual” weapons. Id. at 515–16; see also State v. Delgado, 298 Or. 395, 403–04 (1984) (holding that the prohibition on the carrying of a switchblade knife violated the defendant's right to bear arms under the Oregon Constitution). The Supreme Judicial Court of Massachusetts has the better view, and we should have taken this case en banc to correct the panel's plain error.

* * *

I do not deny that the switchblade has been “associated” in the public imagination “with criminal activity.” Knife Rights, 165 F.4th at 1333. The spate of laws passed to prohibit the carrying of such a device may have had its impetus in films released in the 1950s, after which the switchblade became the symbol of teenage crime and gang violence. But the constitutional validity of such laws depends not on modern fads or Hollywood vibes, but on what the Second Amendment protects as a matter of original meaning. Sound constitutional adjudication requires, then, a fair assessment of what our Nation's history and traditions proscribed. The panel failed in that task when it rejected Plaintiffs' constitutional challenge. Even on the panel's own evidence, no historical tradition exists in our country of completely banning the public carry of knives. Just the reverse—“the history reveals a consensus that States could not ban public carry altogether.” Bruen, 597 U.S. at 53 (emphasis in original). Yet that is just what California has done. I respectfully dissent.

Appendix A

Laws that are cited by the panel and that prohibit concealed carry but allow open carry. These laws appear in alphabetical order by jurisdiction.

Appendix B

Laws that are cited by the panel and that governed territories and prohibited public carry. These laws appear in alphabetical order by territory.

This list does not include any laws in Appendix A.

Appendix C

Laws that are cited by the panel and that prohibit the carry of (1) weapons besides knives, (2) knives with an intent to harm, or (3) knives into sensitive places/on sensitive times.

These laws appear in alphabetical order by jurisdiction.

This list does not include any laws in Appendix A or B.

Appendix D

Laws that are cited by the panel and that ban the public carry of knives.

[Editor's Note: The preceding image contains the reference for footnote ⁸

Appendix E

Laws cited by Dr. Spitzer for the proposition that “15 states banned all carrying of Bowie knives.”

[Editor's Note: The preceding image contains the reference for footnote ⁹

FOOTNOTES

1.   See, e.g. United States v. Diaz, 116 F.4th 458, 471–72 (5th Cir. 2024) (The Fifth Circuit rejected a facial challenge to 18 U.S.C. § 922(g)(1) because “[t]o sustain a facial challenge, the challenger must establish that no set of circumstances exists under which the statute would be valid. This Diaz cannot do because the statute is constitutional as applied to the facts of his own case.” (citation modified)); Antonyuk v. James, 120 F.4th 941, 999–1000 (2d. Cir. 2024) (The Second Circuit rejected a facial challenge to various firearm licensing requirements under New York law. It explained that “[f]ederal courts generally should be wary about granting facial challenges, which deny the opportunity for agency officials and state courts to interpret, apply, or limit state laws․ As-applied challenges to particular [applications] ․ remain viable. There surely exist some possible [applications] which would unconstitutionally burden the right to bear arms: the reader can no doubt conceive of apt hypotheticals.” But where a plaintiff chooses “to challenge [a] law on its face,” he must establish that no set of circumstances exists under which the law would be valid.); United States v. Ogilvie, 153 F.4th 1098, 1103 (10th Cir. 2025) (The Tenth Circuit rejected a facial challenge to 18 U.S.C. § 922(n). It explained that a plaintiff's “facial challenge fails so long as the government shows that” the law “is constitutional in some of its applications[,] [a]nd when legislation and the Constitution brush up against each other, a court's task is to seek harmony, not to manufacture conflict.” (internal quotation marks and citations omitted)); Maryland Shall Issue, Inc. v. Moore, 116 F.4th 211, 226 (4th Cir. 2024) (“[I]n a facial constitutional challenge a plaintiff asks the court to declare that the statute is invalid. As the Supreme Court has explained, facial challenges are disfavored because they often rest on speculation, short circuit the democratic process, and run contrary to the fundamental principle of judicial restraint. So to succeed in a facial constitutional challenge, a plaintiff confronts a much more difficult task, namely, to establish that there is no set of circumstances under which the law would be valid. The stakes are higher in a facial challenge, so the bar goes up as well.” (internal quotation marks and citations omitted)).

2.   The dissent suggests that any law could be construed narrowly enough to withstand a facial challenge. For example, says the dissent, “one ‘application’ of a total ban could be to prohibit a violent felon from carrying a firearm.” Dissent of Tung, J., at 54. Set aside for a moment that violent felons are already prohibited from carrying firearms by a federal statute. See 18 U.S.C. § 922(g)(1). Courts across the country have rejected facial challenges to complete possession bans, like § 922(g)(1), on the grounds that the application of the law to a single factual circumstance was constitutional. See, e.g., United States v. Williams, 113 F.4th 637, 643 (6th Cir. 2024) (rejecting a facial challenge to § 922(g)(1) and noting that such a challenge “fail[s] if [the law] is constitutional in even just one of its applications”); Diaz, 116 F.4th at 471–72. Regardless, we did not read California's switchblade regulations so narrowly. It is obvious to everyone that courts are “struggl[ing] with ․ [the] level of generality problem” at Bruen's second step. See Rahimi, 602 U.S. at 739 (Barrett, J., concurring). The dissent's arguments do no more than repackage this debate in the facial challenge context. But in so doing, it attacks a straw man. We did not read California's switchblade regulations as narrowly as the dissent suggests, and we did not need to prognosticate about niche or unlikely factual applications of the challenged law to reach our conclusion. California's switchblade regulations constitutionally prohibit concealed carry. We need not say any more to reject this challenge.

3.   The dissent suggests that en banc review is warranted because our opinion “produces a conflict with the decision of at least one State Supreme Court.” Dissent of Tung, J., at 57. At the outset, we note that a conflict with a state supreme court decision is insufficient as a matter of law to justify en banc review. See Fed. R. App. P. 40(b)(2). But even if that were not the case, Commonwealth v. Canjura, 494 Mass. 508 (2024), is deeply flawed. For example, the Supreme Judicial Court of Massachusetts rejected nearly all of the historical analogues proffered by the state, including laws regulating the carrying of dirks and bowie knives, on the ground that “none [of those laws] involved regulations of folding pocketknives, let alone switchblades.” Id. at 514. The court explained that these laws were “inapposite because they involve historical regulations of categorically different types of bladed weapons” and Massachusetts failed to “identify any laws regulating bladed weapons akin to folding pocketknives generally, or switchblades particularly, in place at the time of the founding or ratification of the Fourteenth Amendment.” Id. Canjura eschewed Bruen's guidance that “the government [must] identify a well-established and representative historical analogue, not a historical twin.” 597 U.S. at 30. The district court made the same error here, which we corrected on appeal. See Knife Rights, 165 F.4th at 1341. The remainder of Canjura's analysis is unconvincing, but its wholesale rejection of representative historical analogues—an argument that the dissent does not defend—is all that matters for our purposes. Our conflict with Canjura exists for a reason.

4.   There is no guidance as to how we should assess whether a set of historical regulations constitutes “outliers” as opposed to a sufficient historical tradition. See Bruen, 597 U.S. at 65. Bruen rejected one of New York's proffered historical analogues for its proper cause requirement on the grounds that the analogues, one Texas and one West Virginia statute, were “outliers.” Id. at 65–66. By contrast, the dissent's Appendix D alone catalogues eight laws from seven different states: Arkansas, Georgia, Nebraska, Pennsylvania, Tennessee, Texas, and West Virginia. See Dissent of Tung, J., Appendix D. Are eight laws across seven different states (one of which, concededly, was struck down), a sufficient analogue or an outlier? We should be hesitant to answer this question without clearer guidance from the Supreme Court or a good reason to do so. We have neither here.

5.   Our General Orders provide that “[i]f a majority of the judges eligible to vote on the en banc call votes in favor of en banc consideration, the Chief Judge shall enter an order taking the case en banc pursuant to Circuit Rule 40-3 and vacating the three-judge panel opinion.” 9th Cir. Gen. Ord. 5.5(d) (Dec. 2024) (emphasis added). This General Order thus imposes a mandatory duty on the Chief to vacate the three-judge panel opinion. Contrary to Judge VanDyke's assertion, see Dissent of VanDyke, J., at 18 (VanDyke, J., dissenting), the Chief Judge was not somehow skirting our internal procedures in Teter v. Lopez, but simply following them. As Judge Miller noted in his concurrence in Teter v. Lopez, 135 F.4th 1176, 1178 (9th Cir. 2025): “Judge VanDyke believes that this court should not vacate panel opinions when we grant rehearing en banc. Whether or not that should be our practice, there is no denying what our practice is[.]” While Judge VanDyke is correct that the language in our General Orders has varied over the years, see Dissent of VanDyke, J., at 20 n.6, the import has always been the same: once en banc rehearing is granted, a panel decision has no precedential weight and binds no one in our Circuit. See 9th Cir. Gen. Ord. 5.5(d) (Jan. 1999) (“If a majority of the non-recused active judges votes in favor of en banc consideration, the Chief Judge shall enter an order withdrawing the case from the panel, taking the case en banc, and vacating the panel decision.”); id. (July 2000) (“If a majority of the non-recused active judges votes in favor of en banc consideration, the Chief Judge shall enter an order taking the case en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.”); id. (Dec. 2024) (requiring vacatur).

1.   That's how “the famously liberal judge,” Stephen Reinhardt, justified his “open resistance, defiance even” to the Supreme Court. Linda Greenhouse, Dissenting Against the Supreme Court's Rightward Shift, N.Y. TIMES (Apr. 12, 2018), https://www.nytimes.com/2018/04/12/opinion/supreme-court-right-shift.html [https://perma.cc/H473-3MRD].

2.   There is, of course, one notable post-Bruen exception to the otherwise hard-and-fast rule that the Second Amendment always loses in the Ninth Circuit. See Nguyen v. Bonta, 140 F.4th 1237 (9th Cir. 2025). It is literally the one exception that proves the rule. My colleagues are well aware of our court's reputation, and the majority of our court is thus understandably on the lookout for some inconsequential Second Amendment case where they can chalk up the extraordinary win—similar to how most law schools try to have at least one “conservative” faculty member so they can tout their intellectual diversity. Anybody who falls for such a weak charade is, to quote our Chief Justice, a chump. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n, 576 U.S. 787, 825 (2015) (Roberts, C.J., dissenting).

3.   One California state court has construed these statutes to criminalize all possession of switchblades—even inside private spaces. In re S.C. v. S.C., 179 Cal. App. 4th 1436, 1438, 1441 (2009) (holding that the identical, prior version of Cal. Pen. Code § 21510 “is violated any time a person carries a switchblade knife on his or her person, regardless of where the possession occurs,” including in a nonpublic area).

4.   See, e.g., Yukutake v. Lopez, 130 F.4th 1077, 1108–24 (9th Cir. 2025) (Bea, J., dissenting), reh'g en banc granted, opinion vacated, 144 F.4th 1119 (9th Cir. 2025).

5.   Hawaii seems fond of amending its laws in an attempt to moot Second Amendment cases once our court takes them en banc. See, e.g., Hawaii State Senate, JDC Public Hearing 03-29-2022 9:30 a.m., https://www.youtube.com/live/KMpT6JngXG8?t=5301s [https://perma.cc/8URU-GCJR], at 1:28:21–1:28:43 (YouTube, Mar. 29, 2022) (testimony of Hawaii deputy attorney general, testifying “on behalf of the department of the Attorney General” “who supports this bill” to “address a recent federal court ruling ․ that invalidated two Hawaii statutes”).

6.   Judge Wardlaw claims that this vacatur was “mandatory” under our General Orders. See Concurrence of Wardlaw, J., at 13 n.5. But this is historical revisionism. As Judge Wardlaw acknowledges, the version of General Order 5.5(d) that Judge Wardlaw cites is not the version that existed when the Chief Judge vacated the Teter panel opinion. See Teter, 125 F.4th at 1313–14 (VanDyke, J., dissenting). When the Teter panel opinion was vacated, the relevant provision from our General Orders said nothing about vacatur and provided only that, after a successful en banc call, “[t]he three-judge panel opinion shall not be cited as precedent ․” Id. at 1313. Judge Wardlaw, like Judge Miller before her, suggests that the Teter vacatur simply followed what had always been our consistent practice. See Concurrence of Wardlaw, J., at 13 n.5 (citing Teter v. Lopez, 135 F.4th 1176, 1178 (9th Cir. 2025) (Miller, J., concurring)). But this isn't accurate. See Teter, 125 F.4th at 1312–14 (VanDyke, J., dissenting). The panel opinion was thus vacated ultra vires. The most that can be said to support the vacatur in Teter is that it was not the only panel opinion vacated this way before we amended our rules to authorize it. But as everyone knows, the mere fact that our court has maintained an unwritten practice of doing something is hardly evidence of its lawfulness. See, e.g., Rojas-Espinoza v. Bondi, 167 F.4th 1069–79 (9th Cir. 2026) (VanDyke, J., dissenting).

7.   That's not to say that Second Amendment litigation in the Ninth Circuit is necessarily boring. It's a lot like watching a Harlem Globetrotters game: you know the Globetrotters are going to win, but the acrobatics involved in getting to that foregone conclusion can still make for a fascinating spectacle—as long as you don't mind that the Washington Generals never win.

8.   Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931, 934 (7th Cir. 2011) (Posner, J.) (noting that the “ostrich is a noble animal, but not a proper model for an appellate advocate” and then helpfully including a picture of an ostrich burying its head in the sand).

9.   See, e.g., Payne v. State, —S.E.2d—, 2026 WL 1215905 (Ga. Sup. Ct. May 5, 2026). Here's a related practice tip: if you're a lawyer and you find yourself citing a Ninth Circuit decision that seems to vindicate the Second Amendment right, you should definitely double-(and triple-) check that it's not an A.I.-hallucinated case.

10.   This actually happened. See United States v. Bottorff, No. 8:11-cr-269-T-23AEP, 2012 WL 2449858, at *1 (M.D. Fla. June 22, 2012) (“Between a murder-for-hire trial and an annual look-alike contest, surely Hemingway, a perfervid admirer of ‘grace under pressure,’ would choose the trial․ Best of luck to counsel in next year's contest. The motion ․ is DENIED.”).

11.   Schriro v. Smith, 546 U.S. 6 (2005) (per curiam); Kane v. Garcia Espitia, 546 U.S. 9 (2005) (per curiam); Wong v. Belmontes, 558 U.S. 15 (2009) (per curiam); Swarthout v. Cooke, 562 U.S. 216 (2011) (per curiam); Felkner v. Jackson, 562 U.S. 594 (2011) (per curiam); Cavazos v. Smith, 565 U.S. 1 (2011) (per curiam); Ryan v. Schad, 570 U.S. 521 (2013) (per curiam); Marshall v. Rodgers, 569 U.S. 58 (2013) (per curiam); Nevada v. Jackson, 569 U.S. 505 (2013) (per curiam); Lopez v. Smith, 574 U.S. 1 (2014) (per curiam); Glebe v. Frost, 574 U.S. 21 (2014) (per curiam); Johnson v. Lee, 578 U.S. 605 (2016) (per curiam); Kernan v. Hinojosa, 578 U.S. 412 (2016) (per curiam); Kernan v. Cuero, 583 U.S. 1 (2017) (per curiam); Sexton v. Beaudreaux, 585 U.S. 961 (2018) (per curiam).

12.   When the Supreme Court cited a list of recent AEDPA summary reversals, there was no decision from our court on the list. See Klein v. Martin, 607 U.S. 213, 214 (2026) (citing cases). Of course, that doesn't mean we're guaranteed to avoid future AEDPA summary reversals—especially if we regress. See, e.g., Doyle v. Royal, 161 F.4th 570 (9th Cir. 2025).

13.   These are just a few examples to illustrate the common refrains in this “Bruen-is-too-hard” pressure campaign. See also Tonja Jacobi & Cory Conley, Is Bruen The New Usery?, 67 Wm. & Mary L. Rev. Online 1529 (2026); Brandon P. Denning & Glenn H. Reynolds, Essay: Trouble's Bruen: The Lower Courts Respond, 108 Minn. L. Rev. 3187 (2024); Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, 73 Duke L.J. 67 (2023); Clara Fong, et al., Judges Find Supreme Court's Bruen Test Unworkable, Brennan Ctr. for Justice (June 26, 2023), https://www.brennancenter.org/our-work/research-reports/judges-find-supreme-courts-bruen-test-unworkable [https://perma.cc/CW35-AC3M].

14.   Samuel Butler, Hudibras, Part II, Canto I, line 841 (Hartford, S. Andrus & Son 1845) (1664).

1.   California's Penal Code § 21510 states: “Every person who does any of the following with a switchblade knife having a blade two or more inches in length is guilty of a misdemeanor: (a) Possesses the knife in the passenger's or driver's area of any motor vehicle in any public place or place open to the public; (b) Carries the knife upon the person; (c) Sells, offers for sale, exposes for sale, loans, transfers, or gives the knife to any other person.” Cal. Pen. Code § 17235 defines a switchblade knife as “a knife having the appearance of a pocketknife and includes a spring-blade knife, snap-blade knife, gravity knife, or any other similar type knife, the blade or blades of which are two or more inches in length and which can be released automatically by a flick of a button, pressure on the handle, flip of the wrist or other mechanical device, or is released by the weight of the blade or by any type of mechanism whatsoever.” This definition “does not include a knife that opens with one hand utilizing thumb pressure applied solely to the blade of the knife or a thumb stud attached to the blade, provided that the knife has a detent or other mechanism that provides resistance that must be overcome in opening the blade, or that biases the blade back toward its closed position.” Id.

2.   See Cal. Pen. Code § 21510; Conn. Gen. Stat § 53-206; D.C. Code § 22–4514(a); Minn. Stat. § 609.66 subd. 1(a)(4); N.J. Stat. § 2C:39-3(e); N.M. Stat. § 30-7-8; N.Y. Penal L. § 265.01(1); Wash. Rev. Code § 9.41.250(1)(a). Delaware had a switchblade prohibition that was repealed in 2025. See 2025 Del. L. Ch. 119 (S.B. 108) (repealing 11 Del. C. § 1446). Another provision does state that “[n]o person licensed or unlicensed shall possess, sell, or offer for sale any switchblade knife,” but that provision appears to apply only to dealers. 24 Del. C. § 901.

3.   Indeed, as Bruen discusses, one of the statutes the panel cites—1837 Ga. Acts. 90, § 1—was held to be unconstitutional to the extent the statute banned “bearing arms openly.” Bruen, 597 U.S. at 54 (citing Nunn v. State, 1 Ga. 243, 251 (1846)).

4.   The panel notes that “Dr. Spitzer” (the State's expert) “found that at least ‘15 states banned all carrying of Bowie knives[.]’ ” Knife Rights, 165 F.4th at 1344. But Dr. Spitzer himself conceded in deposition that this tally was inaccurate—two of the cited laws, he admitted, did not ban “all carrying” but banned concealed carrying. 10-ER-2551–53; see also 10-ER-2556 (Q: “[W]ould you state that 15 states banned all carrying of Bowie knives?” A: “No I may have simply been mistaken.”); see also Appendix E. Moreover, a few of the other “states” he cited were, in fact, territories, which Bruen already instructed us to discount. See Appendix E. Still other laws he cited prohibited only carry with intent to harm or in sensitive places—they did not ban public carry altogether. See id.; see also 10-ER-2555. Despite the expert's confessed errors, the State continued to represent (wrongly) that “15 states” “banned both open and concealed carry[.]” Ans. Br. at 35. The State's (and the panel's) reliance on a report admitted by its own author as inaccurate is, to put it mildly, misguided.

5.   Compare Amended Complaint ¶ 46, New York State Rifle & Pistol Ass'n v. Beach (Bruen Complaint), No. 18-cv-134-BKS-ATB (N.D.N.Y. filed May 16, 2018) (“facially” attacking New York's law requiring “proper cause” to conceal-carry firearms while also banning open carry), with Bruen, 597 U.S. at 71 (holding that New York's law “violates the ․ right to keep and bear arms”); see Antonyuk v. James, 120 F.4th 941, 986 (2d Cir. 2024) (“Bruen was a facial challenge”). Compare also Complaint ¶¶ 15, 22, Parker v. District of Columbia, No. 1:03-cv-02131 (D.D.C. filed Nov. 6, 2003) (Heller Complaint) (attacking D.C.'s law banning “the home ownership and possession of handguns by private citizens”), with Heller, 554 U.S. at 635 (holding that “the District's ban on handgun possession in the home violates the Second Amendment”); see also City of Los Angeles v. Patel, 576 U.S. 409, 415 (2015) (describing Heller as addressing a “[f]acial challenge[ ]”).

6.   That is why Judge Wardlaw is wrong when she states that “California's switchblade regulations constitutionally prohibit concealed carry.” Conc. at 10 n.2 (emphasis added). Bruen makes clear that a prohibition on concealed carry is not constitutional when open carry is also prohibited.

7.   Judge Wardlaw acknowledges a conflict with a decision of the Supreme Judicial Court of Massachusetts but contends that this does not support en banc review. Conc. at 11 n.3. To be sure, Federal Rule of Appellate Procedure 40(b)(2) does not require specification of a state-supreme-court conflict in a petitioner's statement. But such a conflict supports the notion that “the proceeding involves one or more questions of exceptional importance.” Fed. R. App. P. 40(b)(2)(D). In any event, the panel's decision “conflicts with a decision of the United States Supreme Court” (Fed. R. App. P. 40(b)(2)(B))—Bruen—which is sufficient to justify en banc review.

8.   As Bruen discusses, this statute was held to be unconstitutional to the extent the statute banned “bearing arms openly.” Bruen, 597 U.S. at 54 (citing Nunn v. State, 1 Ga. 243, 251 (1846)).

9.   Dr. Spitzer cites Colo. Rev. Stat 1774, Carrying Concealed Weapons—Penalty—Search Without Warrant—Jurisdiction of Justice, § 248 (1881). See 10-ER-2344. We are unable to verify the existence of this law. The text he provides for this citation matches with Colo. Stat. ch. 35 § 1830 (1911), and so we assume that he meant to cite this provision.

Order; Concurrence by Judge Wardlaw; Dissent by Judge VanDyke; Dissent by Judge Tung