Reported / Citable
Background
California prohibits the possession and carry of switchblade knives with blades of two inches or more in length. Knife Rights, Inc., several individual knife owners, and two retailers of bladed weapons filed a lawsuit in the Southern District of California challenging these regulations as an unconstitutional infringement of the Second Amendment right to keep and bear arms. They brought a “facial challenge” — asking the court to strike down the California switchblade regulations entirely as unconstitutional under all applications, not just as applied to the specific plaintiffs.
The district court granted summary judgment to the state. A Ninth Circuit panel affirmed (on different grounds) in early 2026, applying the historical tradition test that the Supreme Court established in New York State Rifle and Pistol Ass’n v. Bruen (2022). The panel ruled narrowly that California’s prohibition on the concealed carry of switchblade knives is consistent with the nation’s historical tradition of arms regulation — sufficient to reject the facial challenge — without needing to address whether an open-carry prohibition would independently survive constitutional scrutiny.
Plaintiffs filed a petition for panel rehearing and rehearing en banc. A judge of the Ninth Circuit called for a vote of the full court on whether to rehear the case. The vote failed to achieve the required majority of non-recused active judges.
The Court’s Holding
The panel denied the petition for panel rehearing and rehearing en banc. The panel’s 2026 decision upholding California’s switchblade regulations stands as the law of the circuit.
Three opinions accompanied the denial order. Judge Wardlaw, joined by the other panel members (Gould and Koh), concurred in the denial, emphasizing that the case turned on the plaintiffs’ deliberate choice to mount a “facial challenge” — the hardest type of challenge to win, requiring the plaintiff to show there is no set of circumstances under which the law is valid. The panel ruled narrowly that at least one application of California’s switchblade regulations (the concealed-carry prohibition) is historically supported, which is enough to defeat a facial challenge.
Judge Tung, joined by eight other circuit judges including Callahan, R. Nelson, Collins, Lee, Bress, Bumatay, and VanDyke, dissented from the denial of en banc rehearing. The dissenters argued that upholding a law banning concealed carry does not justify a total ban on all carry — concealed and open. A historical tradition that supports only one form of restriction (concealed carry) cannot validate a broader restriction (all carry), they wrote, in what they described as a direct conflict with Bruen’s methodology. Judge VanDyke wrote separately to criticize the court’s “automatic vacatur” practice — a procedural rule that had previously eliminated a favorable ruling in a related Hawaii butterfly-knife case, giving categorical knife bans a second chance before a different panel.
Key Takeaways
- California’s switchblade knife regulations remain in effect after the Ninth Circuit declined to reconsider the panel ruling; no immediate change in California law results from this order.
- The en banc denial reveals a 9-judge dissent — nearly a third of the active Ninth Circuit bench — that views the panel’s Second Amendment reasoning as incompatible with the Supreme Court’s Bruen decision.
- The panel’s use of the facial-challenge doctrine to limit its ruling was critical: by ruling only that concealed-carry prohibition is historically supported (without deciding open-carry), the majority kept the ruling narrow and the case out of en banc territory.
- California retailers and manufacturers of switchblade knives should not expect near-term judicial relief through this case; plaintiffs’ best remaining options are a petition for certiorari to the Supreme Court or a new, narrower as-applied challenge.
- The case highlights ongoing instability in Ninth Circuit Second Amendment jurisprudence — the strong dissent signals that different panel draws can produce opposite results on weapons regulations, and that Supreme Court intervention may eventually be necessary.
Why It Matters
California is one of a handful of states that broadly prohibits switchblade knives, and this ruling ensures those prohibitions survive for now. For California retailers of bladed products, law enforcement, and the general public, the practical effect is continuity: possession of a switchblade with a blade over two inches remains a crime under California Penal Code section 21510. The split within the Ninth Circuit — nine dissenting judges calling the panel’s reasoning a clear Bruen error — makes a future Supreme Court petition plausible, though not certain.
More broadly, the case is a window into how the Ninth Circuit is struggling to apply the Supreme Court’s Bruen “historical tradition” test to categorical weapons bans. The majority and minority are reading the same historical record and reaching opposite conclusions about whether a tradition of restricting concealed carry can justify restricting all carry. That methodological disagreement will recur across dozens of pending Second Amendment cases in this circuit and across the country, making the ultimate resolution of these questions one of the most watched areas of constitutional law in the next several years.