Monday, February 2, 2026
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Ninth Circuit:
California’s Switchblade Ban Survives Facial Challenge
Opinion Calls Out ‘Uncertainties’ in Framework Announced in High Court’s Bruen Decision, Says Law Stands Because Concealed Carry Application of Prohibition Has Historical Roots
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals held Friday that California’s regulatory scheme restricting the possession of switchblade knives survives a facial Second Amendment challenge brought by a group of individuals, retailers, and a weapons-rights advocacy group, saying that, because the plaintiffs cannot establish that the regulations are unconstitutional in every application, the laws survive constitutional scrutiny.
At issue is Penal Code §§21510, 17235, and 16965, which together ban the possession of a “switchblade” in the passenger compartment of a motor vehicle or on one’s person as well as the transfer, loan, or sale of such items. The scheme defines covered weapons as pocketknives with a blade of two or more inches that can be released by a flick of a button, pressure on the handle, the flip of a wrist, or other mechanical operation.
A violation of the sections is punishable as a nuisance or a misdemeanor.
Circuit Judge Kim McLane Wardlaw, writing for the court, cited the two-part test announced in the 2022 U.S. Supreme Court case of New York State Rifle & Pistol Association v. Bruen, by which courts are called to evaluate the scope of the Second Amendment and then consider whether a challenged regulation comports with the historical framework of arms regulations.
Growing Chorus
Wardlaw commented that “[w]e…join the growing chorus of courts acknowledging uncertainties in Bruen’s methodological framework,” but said that “[w]e assume without deciding that the plain text” of the Constitution “covers Plaintiffs’ proposed course of conduct” and pointed to historical bans on the concealed carrying of certain fixed-blade knives and other weapons in the time period surrounding the adoption of the 14th Amendment.
Finding switchblades to be similar to the knives and other weapons at issue in the historical bans in terms of the concerns they raise to legislative bodies, and that California’s concealed carry prohibition also bears a concealed-carry application, she declared:
“California’s switchblade regulations…comport with the principles underpinning the Second Amendment, to the extent that they prohibit the concealed carry of switchblade knives in public places.”
She added:
“Our holding today is narrow: Plaintiffs’ facial challenge fails because they cannot establish that California’s switchblade regulations are unconstitutional in every one of their applications.” Circuit Judges Ronald M. Gould and Lucy H. Koh joined in the opinion.
Complaint Filed
On March 15, 2023, San Diego residents James Miller, Garrison Ham, and Plaintiff Kaagan, together with the advocacy organization Knife Rights Inc. and two California weapon retailers, filed a complaint against California Attorney General Rob Bonta and other officials.
In the pleading, they asserted claims under 42 U.S.C. §1983 and alleged that the scheme, on its face, violates the Second Amendment and interferes with the plaintiffs’ purported desire and intent to carry switchblades.
After the parties filed competing motions for summary judgment, District Court Judge James E. Simmons Jr. of the Southern District of California ruled for the defendants in August 2024 and ordered that judgment be entered in their favor. Addressing the first step of Bruen, he explained that courts must consider whether the challenger is one entitled to constitutional protection and if the weapon is “in common use” today for self-defense.
Acknowledging that “[n]either party disputes that Individual Plaintiffs, Institutional Plaintiff, or Retailer Plaintiffs are ‘the people’ who the Second Amendment safeguards,” he opined:
“Because Plaintiffs bear the burden of satisfying Bruen step one and fail to prove that the regulated switchblades are in common use today for self-defense or that the weapons are not dangerous and unusual, it follows that there is no genuine dispute of material fact as to this issue.”
Saying that “we affirm…for reasons that differ from those of the district court,” Wardlaw wrote:
“Much has been made in the lower courts of this ‘in common use’ and ‘dangerous and unusual’ language [in Bruen and earlier decisions,] notwithstanding that the Supreme Court has yet to apply it. The Court has not explained…whether the Second Amendment protects weapons in common use for all ‘lawful purposes,’…or only those ‘in common use’ [for defending oneself]….Nor has it explained whether the…analysis should be conducted as part of Bruen’s threshold, step one inquiry, or at Bruen’s second step.”
Reasoning that “[w]e need not resolve these complicated questions today,” she remarked that “we explicitly decline to express a view on the proper interpretation of this language.” Turning to the regulatory scheme at issue, she said:
“California’s switchblade regulations prohibit a wide range of conduct. The parties agree that §21510(b) prohibits the concealed carrying of switchblade knives in public. Because such a restriction is supported by our Nation’s history and tradition of arms regulations, Plaintiffs’ facial challenge fails.”
She noted that Simmons found that the so-called “bowie” knives, or fixed-blade weapons that were popular leading up to the Civil War, and other weapons cited by the government relating to historical bans, were too dissimilar from switchblades to qualify for comparison. Rejecting this view, the jurist cautioned against taking too narrow a view of whether one set of arms can be representative of another.
Historical Analogues
Noting that “the record and other historical analogues reveal [that] state legislatures banned the concealed carry of Bowie knives, dirks, daggers, and other weapons because of their common association with and use in criminal activity,” Wardlaw concluded:
“Taken together, these historical analogues ‘confirm what common sense suggests’: states may ban the concealed carry of dangerous edged or impact weapons, such as switchblade knives, which can be used to cause [devastating] injury or death to a victim….California’s switchblade regulations are relevantly similar to these historical laws with respect to how and why switchblades are regulated.”
The judge continued:
“First, the ‘how’:….California’s switchblade regulations do not apply uniformly to all knives or even to all switchblades—instead, California limits its regulations to switchblades with a blade ‘two or more inches in length[,] and which can be released automatically[.]’…
“The challenged statutes are also relevantly similar to the State’s proffered historical analogues in terms of ‘why’ the statutes regulate switchblades….California targeted switchblades specifically because of the particular danger these weapons present, and their common association with criminality.”
She declared:
“[W]e decide only that Plaintiffs’ facial challenge to California’s switchblade regulations fails. Our Nation’s historical tradition supports California’s prohibition against the concealed carry of switchblades….”
Wardlaw, Gould, Koh, and Simmons were each appointed by Democrats. Justice Clarence Thomas, an appointee of Republican President George H.S. Bush, authored the majority opinion in Bruen.
The case is Knife Rights Inc. v. Bonta, 24-5536.
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