VanDyke urges Supreme Court to 'benchslap' 9th Circuit

A sharply worded dissent by 9th U.S. Circuit Court of Appeals Judge Lawrence VanDyke has added new fuel to the debate over the court's handling of Second Amendment cases, with the Trump appointee urging the U.S. Supreme Court to begin issuing more "benchslaps" to the nation's largest federal appellate court.

VanDyke, an appointee of President Donald Trump made the remarks Thursday in dissenting from the denial of rehearing en banc in a challenge to California's prohibition on switchblade knives. The full court declined to reconsider a panel decision upholding the law against a facial constitutional challenge. Knife Rights Inc. v. Bonta, 2026 DJDAR 833 (9th Circ., filed Sept. 11, 2024).

VanDyke argued the 9th Circuit has spent years resisting Supreme Court precedent recognizing robust Second Amendment protections, asserting that decisions in District of Columbia v. Heller and New York State Rifle & Pistol Association v. Bruen have "changed nothing" in the circuit's approach to gun-rights cases. He contended the court continues to find new doctrinal paths to uphold firearm restrictions.

"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," he wrote.

His proposed remedy: more summary reversals from the Supreme Court.

"To put it more colloquially, it's time for some benchslaps," VanDyke wrote, arguing that only repeated public rebukes from the high court would deter what he characterized as the 9th Circuit's persistent defiance of Supreme Court precedent.

VanDyke devoted several pages of his dissent to defining the term.

Citing Black's Law Dictionary, he described a "benchslap" as a judge's sharp public rebuke and argued that Supreme Court summary reversals serve precisely that function by correcting lower courts without full briefing or oral argument. He even included examples ranging from lawyers sanctioned for citing AI-hallucinated cases to attorneys criticized for ignoring controlling precedent.

9th Circuit Judge Eric C. Tung, joined by seven judges including VanDyke, filed a separate dissent arguing the panel had misapplied Bruen by allowing historical restrictions on concealed carry to justify California's broader prohibition on both concealed and open carry.

Judge Kim McLane Wardlaw, joined by Judges Ronald M. Gould and Lucy H. Koh, rejected VanDyke's criticism in a concurrence supporting denial of rehearing. She said the case turned on the plaintiffs' decision to bring a facial challenge, which required them to show there were no constitutional applications of California's switchblade law.

Wardlaw, an appointee of President Bill Clinton, cited the U.S. Supreme Court's June 2024 decision reversing a lower court ruling that struck down a 1994 federal law banning possession of firearms by perpetrators of domestic violence. U.S. v. Rahimi, 20-915 (S. Ct., filed March 17, 2023).

"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," she wrote.

Wardlaw added that the dissents would require them to overrule that Supreme Court decision. "That, we cannot do," she wrote.

She was dismissive of VanDyke's dissential, writing that it was worthy of only a "brief response."

"We took Rahimi's lead and ruled narrowly: California constitutionally prohibits the concealed carry of switchblade knives," she wrote. "We did not need to say any more to resolve this case."

The panel, Wardlaw added, correctly concluded the law was constitutional at least as applied to concealed carry and therefore properly rejected the facial challenge. Plaintiffs can still file as-applied challenges to the state's switchblade law or its other provisions.

All the eight dissenting judges who joined Tung's dissent were appointed by Republican presidents, though five GOP appointees did not participate.

The 9th Circuit, which is divided 16-13 in favor of appointees of Democratic presidents, has consistently ruled in favor of state restrictions on firearms. All of the Democratic appointees have sided with the states, a point that has repeatedly irked VanDyke in particular, although several Republican appointees on the appellate court have sometimes ruled against gun rights groups as well.

The recent flurry of activity on Second Amendment issues has been promoted by the Trump administration, indicating that the Supreme Court - which has avoided clarifying Bruen despite appellate court divisions for several years - appears to be ready to take up more of the cases.

That means more movement on cases like switchblade bans in California and other states, which invoke the Second Amendment, as well as prohibitions of semiautomatic rifles and a host of other restrictions in the Golden State.

VanDyke's solo dissents have frequently taunted the 9th Circuit majority on a variety of issues, but especially gun rights, and he included a YouTube video in a dissent of the court's decision affirming the constitutionality of the state's ban on large capacity magazines. Duncan v. Bonta, 23-55805 (9th Circ., filed Sept. 25, 2023).