Judge Lawrence VanDyke of the United States Court of Appeals for the Ninth Circuit has issued one of the bluntest rebukes I have read from a sitting federal appellate judge, and he directed it at his own court. In a solo dissent from the Ninth Circuit’s denial of rehearing en banc in Knife Rights, Inc. v. Bonta, No. 24-5536 (9th Cir. 2026), Judge VanDyke urged the Supreme Court to start summarily reversing the Ninth Circuit’s Second Amendment rulings. He called it, in a term borrowed straight from Black’s Law Dictionary, a “bench slap.” I could not agree more, and I think the timing of this dissent matters as much as its content.
A Switchblade Ban and a Panel That Got It Wrong
The underlying case is a facial Second Amendment challenge brought by Knife Rights, Inc., several individuals, and two bladed-weapon retailers against California’s switchblade restrictions, which bar possession, sale, and transfer of automatic knives with blades of two inches or more. A three-judge panel, in an opinion authored by Judge Kim Wardlaw, affirmed the district court’s summary judgment in California’s favor. The full Ninth Circuit then denied rehearing en banc, over the objection of eight judges. Judge Eric Tung wrote the primary dissent from that denial, joined by the other seven, arguing the panel’s Second Amendment analysis was wrong. Judge VanDyke wrote separately, stating he “agree[s] entirely with Judge Tung’s excellent dissental,” then added his own argument for what the Supreme Court should do about it.
A knife is unmistakably an arm under the Second Amendment’s text. The Supreme Court already told us that arms are not limited to firearms when it summarily reversed the Massachusetts Supreme Judicial Court in Caetano v. Massachusetts, 577 U.S. 411 (2016), a per curiam decision holding that stun guns are protected arms, with a concurrence by Justice Samuel Alito, joined by Justice Clarence Thomas, criticizing the state court’s reasoning as grudging. If a stun gun is an arm, so is a knife.
”The How Was Different”
Judge VanDyke’s dissent leans on Judge Carlos T. Bea’s unanimous panel opinion in Teter v. Lopez, 76 F.4th 938 (9th Cir. 2023), which struck down Hawaii’s total ban on butterfly knives. As Judge Bea explained, the historical statutes did “not ban the possession of knives”; they “regulated only their carry” — chiefly concealed carry, carry by certain persons, or carry in sensitive places. Teter, 76 F.4th at 951–53. There was, the panel found, no tradition of categorically prohibiting an entire class of bladed arms, much less banning their possession outright.
The Ninth Circuit later vacated Teter through its en banc machinery, so the decision no longer binds the court — but its historical analysis remains correct, and it should have controlled the outcome here. A historical rule limiting concealed carry, while permitting open carry, cannot justify an outright ban on possession. The panel in Bonta ignored that distinction.
”Come Hell or High Water”
What makes Judge VanDyke’s writing remarkable is its candor about institutional failure. He opened his dissent this way:
“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, vacate, and reversal has done nothing, nothing, to change our court’s behavior.”
He invoked the late Judge Stephen Reinhardt’s infamous line that “the Supreme Court can’t catch them all,” and argued that no employer would tolerate two decades of a subordinate’s open defiance. His remedy: summary reversals, the procedural device the Supreme Court used in Caetano itself. Citing data through his own count, VanDyke noted that from 2005 through June 2019 the Supreme Court summarily reversed 88 cases, 41 of them federal habeas cases, and that 15 of those corrected Ninth Circuit decisions — by his tally, more than a third. Those figures come from his dissent and have not been independently re-derived here, but the pattern he describes tracks what those of us who litigate Second Amendment cases in that circuit see every term.
Why the Supreme Court Was Already Listening
This is not the first time the Court has taken notice of Judge VanDyke by name. In Wolford v. Lopez, 609 U.S. ___ (2026), decided June 25, 2026, the Supreme Court reversed the Ninth Circuit’s approval of Hawaii’s default ban on carrying licensed concealed handguns onto private property open to the public, and the opinion referenced Judge VanDyke’s underlying dissent directly. That is not a small thing. The Court could have cited a generic dissenting opinion below. It chose to credit him by name.
Judge VanDyke’s suggestion is not radical. It is the plain, available tool the Court used in Caetano, and it is the one the Ninth Circuit has demonstrated, case after case, is the only message it appears capable of receiving.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.