A federal appeals court refused to rehear a case upholding California's switchblade ban, with dissenters…

Record source: CourtListener

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KNIFE RIGHTS, INC.; ELIOT No. 24-5536 KAAGAN; JIM MILLER; D.C. No. GARRISON HAM; NORTH 3:23-cv-00474- COUNTY SHOOTING CENTER, JES-DDL INC.; PWGG, LP, Southern District of California, Plaintiffs – Appellants, San Diego v. ORDER ROB BONTA, California Attorney General, Defendant – Appellee. Filed July 16, 2026 Before: Kim McLane Wardlaw, Ronald M. Gould, and Lucy H. Koh, Circuit Judges. Order; Concurrence by Judge Wardlaw; Dissent by Judge VanDyke; Dissent by Judge Tung 2 KNIFE RIGHTS, INC. V. BONTA SUMMARY * Second Amendment The panel denied a petition for panel rehearing and rehearing en banc in a case in which the panel affirmed on different grounds the district court’s summary judgment in favor of the state of California in a facial Second Amendment challenge to California’s switchblade regulations brought by Knife Rights, Inc., various individuals who desire to keep and bear switchblades, and two retailers of bladed weapons (collectively, “Plaintiffs”). Concurring in the denial of rehearing en banc, Judge Wardlaw, joined by Judges Gould and Koh, wrote that this case comes down to Plaintiffs’ choice to pursue a facial challenge, which is the most difficult challenge to mount successfully. Plaintiffs swung for the fences by asking the district court to invalidate California’s switchblade regulations in full and their challenge was unsuccessful for the reasons explained in the panel’s opinion. She stated the panel ruled narrowly that California constitutionally prohibits the concealed carry of switchblade knives and did not need to say any more to resolve this case. Dissenting from the denial of rehearing en banc, Judge VanDyke agreed with Judge Tung’s dissent and wrote separately to explain that the panel’s decision was possible only because the court’s automatic vacatur practice enabled Hawaii to moot a panel opinion striking down a similar blanket ban on butterfly knives, thereby giving categorical * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  KNIFE RIGHTS, INC. V. BONTA 3 knife bans a second chance to obtain a more favorable ruling from a more favorable panel (from the government’s perspective). Judge VanDyke further wrote that the Supreme Court should consider summarily reversing some of this court’s Second Amendment decisions. Dissenting from the denial of rehearing en banc, Judge Tung, joined by Judges Callahan, R. Nelson, Collins, Lee, Bress, Bumatay, and VanDyke, wrote that the panel’s reasoning for rejecting the facial Second Amendment challenge to California’s ban on the carrying of switchblade knives was wrong because 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. He wrote that the panel’s reasoning runs directly counter to New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), and would essentially shield from constitutional scrutiny any law that categorically and totally bans the carrying of arms. He wrote the court should have granted en banc review to fix the panel’s error and its circumvention of the Supreme Court’s instructions. 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. 4 KNIFE RIGHTS, INC. V. BONTA WARDLAW, J., joined by GOULD, J., and KOH, J., concurring in the denial of rehearing en banc: 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  KNIFE RIGHTS, INC. V. BONTA 5 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 wheth

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