Knife Rights, Inc. v. Bonta

Opinion

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 whether the other basis for liability, § 922(g)(8)(C)(ii), was constitutional at all. See id. In other words, “the constitutionality of just one of [§ 922(g)(8)’s] sources [of liability] was sufficient for the statute to survive 6 KNIFE RIGHTS, INC. V. BONTA

a facial challenge.” Knife Rights, 165 F.4th at 1338. The Court declined to consider the constitutionality of § 922(g)(8)(C)(ii) and did not ask how the operation of that distinct source of liability affected the total range of prohibited conduct. Rahimi, 602 U.S. at 688–89, 693. We followed Rahimi’s clear guidance. After recognizing Plaintiffs’ heavy burden on their facial challenge, we identified one of several bases for liability under the statute: the concealed carry of switchblade knives. See Knife Rights, 165 F.4th at 1339. We then asked whether this application of California’s switchblade regulations violates the Second Amendment. See id. at 1339–45. Answering that question in the negative, we concluded that Plaintiffs’ facial challenge failed. Id. We declined to express a view “on whether the regulation of any of the other conduct prohibited by California’s switchblade regulations is constitutional.” Id. at 1339 n.4. That is exactly what the Supreme Court did in Rahimi. Consistent with this understanding, Courts of Appeals across the country have upheld laws that comport with the Second Amendment in at least some respects, even if those laws might be unconstitutional in other respects. 1 See also

1 See, e.g. United States v. Diaz, 116 F.4th 458, 471–72 (5th Cir. 2024) (The Fifth Circuit rejected a facial challenge to 18 U.S.C. § 922(g)(1) because “[t]o sustain a facial challenge, the challenger must establish that no set of circumstances exists under which the statute would be valid. This Diaz cannot do because the statute is constitutional as applied to the facts of his own case.” (citation modified)); Antonyuk v. James, 120 F.4th 941, 999–1000 (2d. Cir. 2024) (The Second Circuit rejected a facial challenge to various firearm licensing requirements under New York law. It explained that “[f]ederal courts generally should be wary about granting facial challenges, which deny the opportunity for agency officials and state courts to interpret, apply, or limit state laws. . . . As- KNIFE RIGHTS, INC. V. BONTA 7

Rahimi, 602 U.S. at 701 n.2 (Even where there are a myriad of potential faults present in a challenged regulation, “unless these hypothetical faults occur in every case, they do not justify invalidating [the law] on its face.”). Bruen does not help the Plaintiffs’ or our dissenting colleagues’ position. As the Second Circuit explained in Antonyuk, “the premise of the proper-cause rule at issue in Bruen (that ordinary, law abiding, adult citizens can be prohibited from carrying a gun if they lack a good reason to do so) was unsupported by history and thus violated the Second Amendment.” 120 F.4th at 986 (citation modified). “How that rule was applied in particular cases was irrelevant given its facial constitutional flaw.” Id. In other words,

applied challenges to particular [applications] . . . remain viable. There surely exist some possible [applications] which would unconstitutionally burden the right to bear arms: the reader can no doubt conceive of apt hypotheticals.” But where a plaintiff chooses “to challenge [a] law on its face,” he must establish that no set of circumstances exists under which the law would be valid.); United States v. Ogilvie, 153 F.4th 1098, 1103 (10th Cir. 2025) (The Tenth Circuit rejected a facial challenge to 18 U.S.C. § 922(n). It explained that a plaintiff’s “facial challenge fails so long as the government shows that” the law “is constitutional in some of its applications[,] [a]nd when legislation and the Constitution brush up against each other, a court’s task is to seek harmony, not to manufacture conflict.” (internal quotation marks and citations omitted)); Maryland Shall Issue, Inc. v. Moore, 116 F.4th 211, 226 (4th Cir. 2024) (“[I]n a facial constitutional challenge a plaintiff asks the court to declare that the statute is invalid. As the Supreme Court has explained, facial challenges are disfavored because they often rest on speculation, short circuit the democratic process, and run contrary to the fundamental principle of judicial restraint. So to succeed in a facial constitutional challenge, a plaintiff confronts a much more difficult task, namely, to establish that there is no set of circumstances under which the law would be valid. The stakes are higher in a facial challenge, so the bar goes up as well.” (internal quotation marks and citations omitted)). 8 KNIFE RIGHTS, INC. V. BONTA

every application of the law challenged in Bruen was affected by an unconstitutional condition that was unsupported by our Nation’s history and tradition. Id. It was irrelevant that some individuals would ultimately obtain a license to carry a firearm because those individuals would still need to prove a “special need” in order to obtain the license—and thus, would still be subject to the unconstitutional condition. Bruen, 597 U.S. at 38. The same is not true here. California’s switchblade regulations comport with our Nation’s history and tradition to the extent that they prohibit the concealed carry of these dangerous edged weapons. See Knife Rights, 165 F.4th at 1339–45. No unconstitutional condition affects that application of the law. Even if other applications might be independently unconstitutional, it is no answer to say that we should invalidate California’s switchblade regulations in full. 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. A pair of hypotheticals illustrates why this is an easy case. First, consider a man who walks into a bank in California and sets off its metal detector. A security officer frisks the man and finds a concealed switchblade knife in his pocket. The man is charged with and convicted of a misdemeanor under California Penal Code § 21510(b). The man brings an as-applied Second Amendment challenge to his conviction. That challenge must fail for all of the reasons set forth in our opinion. See Knife Rights, 165 F.4th at 1339–45. That is the end of this case. See United States v. Diaz, 116 F.4th at 471–72 (rejecting a facial challenge to 18 U.S.C. § 922(g)(1) “because the statute is constitutional as applied to the facts of [the defendant’s] own case”). KNIFE RIGHTS, INC. V. BONTA 9

Next, consider a related hypothetical: A different man walks into the same bank with a switchblade knife holstered in plain view on his belt. He is charged with and convicted of a misdemeanor under California Penal Code § 21510(b). The second man may or may not be able to lodge a meritorious as-applied Second Amendment challenge to his conviction. As applied to him, a court may determine that a ban on open carry under § 21510(b) is unconstitutional. But that is precisely the point: as-applied challenges can surgically address unconstitutional applications of statutes while facial challenges cannot. See, e.g., Hoye v. City of Oakland, 653 F.3d 835, 857 (9th Cir. 2011) (An “as-applied attack . . . challenges only one of the rules in a statute . . . or the application of the statute to a specific factual circumstance” because we “can separate valid from invalid subrules or applications.” (citation modified)). At bottom, the dissent’s primary disagreement with our opinion seems to rest with Salerno’s facial challenge standard itself. 2

2 The dissent suggests that any law could be construed narrowly enough to withstand a facial challenge. For example, says the dissent, “one ‘application’ of a total ban could be to prohibit a violent felon from carrying a firearm.” Dissent of Tung, J., at 54. Set aside for a moment that violent felons are already prohibited from carrying firearms by a federal statute. See 18 U.S.C. § 922(g)(1). Courts across the country have rejected facial challenges to complete possession bans, like § 922(g)(1), on the grounds that the application of the law to a single factual circumstance was constitutional. See, e.g., United States v. Williams, 113 F.4th 637, 643 (6th Cir. 2024) (rejecting a facial challenge to § 922(g)(1) and noting that such a challenge “fail[s] if [the law] is constitutional in even just one of its applications”); Diaz, 116 F.4th at 471–72. Regardless, we did not read California’s switchblade regulations so narrowly. It is obvious to everyone that courts are “struggl[ing] with . . . [the] level of generality problem” at Bruen’s second step. See Rahimi, 602 U.S. at 739 (Barrett, J., concurring). The dissent’s arguments do no more than repackage this debate in the facial 10 KNIFE RIGHTS, INC. V. BONTA

Plaintiffs remain free to bring an as-applied challenge to the application of California’s switchblade regulations to the open carry of switchblade knives. They also remain free to challenge its other provisions. There may be a sufficient history and tradition of arms regulation to support each application of California’s switchblade regulations such that even an as-applied challenge would fail under Bruen’s second step. Or, those challenges may fail for a different reason. For example, perhaps the unique character of switchblades distinguishes them from other knives used at the time of the Founding, such that a ban on open carry would be consistent with our “historical tradition of prohibiting the carrying of dangerous and unusual weapons.” Bruen, 597 U.S. at 21 (internal quotation marks and citation omitted). Perhaps switchblades are not protected by the Second Amendment at all. We did not reach, and did not need to reach, these questions. The old adage, “choices have consequences,” is particularly apt under these circumstances. Plaintiffs swung for the fences by asking the district court to invalidate California’s switchblade regulations in full. Their challenge was unsuccessful for the reasons explained in our opinion. Our dissenting colleagues’ approach would effectively

challenge context. But in so doing, it attacks a straw man. We did not read California’s switchblade regulations as narrowly as the dissent suggests, and we did not need to prognosticate about niche or unlikely factual applications of the challenged law to reach our conclusion. California’s switchblade regulations constitutionally prohibit concealed carry. We need not say any more to reject this challenge. KNIFE RIGHTS, INC. V. BONTA 11

require us to overrule Salerno and Rahimi. That, we cannot do. 3 II. Judge VanDyke’s dissent deserves but a brief response. While all agree that the Second Amendment is not “a second-class right,” Bruen, 597 U.S. at 70 (citation omitted), “constitutional rights . . . come with exceptions,” Rahimi, 620 U.S. at 716 (Kavanaugh, J., concurring), and, like the First Amendment, “the Second Amendment is not absolute,” id. at 737 (Barrett, J., concurring). The procedural posture of a case matters as well. As we have explained, facial

3 The dissent suggests that en banc review is warranted because our opinion “produces a conflict with the decision of at least one State Supreme Court.” Dissent of Tung, J., at 57. At the outset, we note that a conflict with a state supreme court decision is insufficient as a matter of law to justify en banc review. See Fed. R. App. P. 40(b)(2). But even if that were not the case, Commonwealth v. Canjura, 494 Mass. 508 (2024), is deeply flawed. For example, the Supreme Judicial Court of Massachusetts rejected nearly all of the historical analogues proffered by the state, including laws regulating the carrying of dirks and bowie knives, on the ground that “none [of those laws] involved regulations of folding pocketknives, let alone switchblades.” Id. at 514. The court explained that these laws were “inapposite because they involve historical regulations of categorically different types of bladed weapons” and Massachusetts failed to “identify any laws regulating bladed weapons akin to folding pocketknives generally, or switchblades particularly, in place at the time of the founding or ratification of the Fourteenth Amendment.” Id. Canjura eschewed Bruen’s guidance that “the government [must] identify a well-established and representative historical analogue, not a historical twin.” 597 U.S. at 30. The district court made the same error here, which we corrected on appeal. See Knife Rights, 165 F.4th at 1341. The remainder of Canjura’s analysis is unconvincing, but its wholesale rejection of representative historical analogues—an argument that the dissent does not defend—is all that matters for our purposes. Our conflict with Canjura exists for a reason. 12 KNIFE RIGHTS, INC. V. BONTA

challenges are disfavored for a simple reason: we don’t want to throw the baby out with the bathwater. See Bucklew v. Precythe, 587 U.S. 119, 138 (2019) (“A facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications.”). We took Rahimi’s lead and ruled narrowly: California constitutionally prohibits the concealed carry of switchblade knives. See Knife Rights, 165 F.4th at 1339–45. We did not need to say any more to resolve this case. The dissents both insist that California could not have banned open carry. We are not so sure. If the Appendices attached to Judge Tung’s dissent reveal anything, it is that the historical record contains analogues for banning the open carry of some types of knives. See Dissent of Tung, J., Appendix D. Are those “outliers” as Judge Tung suggests? Perhaps. But perhaps not. 4 Are there other independent bases on which to uphold California’s switchblade regulations as a whole? Perhaps. Or perhaps not. We resolved this case narrowly and responsibly.

4 There is no guidance as to how we should assess whether a set of historical regulations constitutes “outliers” as opposed to a sufficient historical tradition. See Bruen, 597 U.S. at 65. Bruen rejected one of New York’s proffered historical analogues for its proper cause requirement on the grounds that the analogues, one Texas and one West Virginia statute, were “outliers.” Id. at 65–66. By contrast, the dissent’s Appendix D alone catalogues eight laws from seven different states: Arkansas, Georgia, Nebraska, Pennsylvania, Tennessee, Texas, and West Virginia. See Dissent of Tung, J., Appendix D. Are eight laws across seven different states (one of which, concededly, was struck down), a sufficient analogue or an outlier? We should be hesitant to answer this question without clearer guidance from the Supreme Court or a good reason to do so. We have neither here. KNIFE RIGHTS, INC. V. BONTA 13

III. Judge Tung’s dissent is centered on disagreements with our interpretation of the law. Discussing differing interpretations of the law is our Court’s duty, but the other dissent’s attacks on colleagues’ credibility, including those who are deceased, simply because of differing views, is not. 5

5 Our General Orders provide that “[i]f a majority of the judges eligible to vote on the en banc call votes in favor of en banc consideration, the Chief Judge shall enter an order taking the case en banc pursuant to Circuit Rule 40-3 and vacating the three-judge panel opinion.” 9th Cir. Gen. Ord. 5.5(d) (Dec. 2024) (emphasis added). This General Order thus imposes a mandatory duty on the Chief to vacate the three-judge panel opinion. Contrary to Judge VanDyke’s assertion, see Dissent of VanDyke, J., at 18 (VanDyke, J., dissenting), the Chief Judge was not somehow skirting our internal procedures in Teter v. Lopez, but simply following them. As Judge Miller noted in his concurrence in Teter v. Lopez, 135 F.4th 1176, 1178 (9th Cir. 2025): “Judge VanDyke believes that this court should not vacate panel opinions when we grant rehearing en banc. Whether or not that should be our practice, there is no denying what our practice is[.]” While Judge VanDyke is correct that the language in our General Orders has varied over the years, see Dissent of VanDyke, J., at 20 n.6, the import has always been the same: once en banc rehearing is granted, a panel decision has no precedential weight and binds no one in our Circuit. See 9th Cir. Gen. Ord. 5.5(d) (Jan. 1999) (“If a majority of the non-recused active judges votes in favor of en banc consideration, the Chief Judge shall enter an order withdrawing the case from the panel, taking the case en banc, and vacating the panel decision.”); id. (July 2000) (“If a majority of the non-recused active judges votes in favor of en banc consideration, the Chief Judge shall enter an order taking the case en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.”); id. (Dec. 2024) (requiring vacatur). 14 KNIFE RIGHTS, INC. V. BONTA

VANDYKE, Circuit Judge, dissenting from the denial of rehearing en banc:

I agree entirely with Judge Tung’s excellent dissental. I write separately to explain why the panel’s flawed decision never should have happened. It was possible only because our court’s improper automatic vacatur practice enabled Hawaii to strategically moot a panel opinion striking down a similar blanket ban on butterfly knives. This gave categorical knife bans a second chance to obtain a more favorable ruling from a more favorable panel (from the government’s perspective). And that’s exactly what happened in this case. I also write with a modest proposal. 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 of certiorari and reversal has done nothing—and I mean that literally— to change our court’s behavior. By now it’s clear enough that, especially with regard to the Second Amendment, our court has fully adopted the operating principle of our former colleague Judge Reinhardt: the Supreme Court “can’t catch ’em all.” 1 In the real world, no boss would tolerate nearly two decades of repeated defiance from a subordinate. If the Supreme Court wants to do anything to ensure that the

1 That’s how “the famously liberal judge,” Stephen Reinhardt, justified his “open resistance, defiance even” to the Supreme Court. Linda Greenhouse, Dissenting Against the Supreme Court’s Rightward Shift, N.Y. TIMES (Apr. 12, 2018), https://www.nytimes.com/2018/04/12/opinion/supreme-court-right- shift.html [https://perma.cc/H473-3MRD]. KNIFE RIGHTS, INC. V. BONTA 15

Second Amendment doesn’t remain a second-class right in this country’s most populous federal circuit, then something has to change. So, what to do? I have a suggestion. The Supreme Court should consider summarily reversing some of our wayward Second Amendment decisions. To put it more colloquially, it’s time for some benchslaps. Nothing less will give this court any pause before ultimately blessing every arms restriction it reviews. 2 I. California law makes it a crime to carry, publicly possess, transfer, or sell switchblade knives—no exceptions. Cal. Pen. Code §§ 17235, 21510, 21590. 3 As Judge Tung persuasively explains, the panel opinion dodges the obvious constitutional problems with California’s categorical switchblade ban by misapplying the facial challenge rule in

2 There is, of course, one notable post-Bruen exception to the otherwise hard-and-fast rule that the Second Amendment always loses in the Ninth Circuit. See Nguyen v. Bonta, 140 F.4th 1237 (9th Cir. 2025). It is literally the one exception that proves the rule. My colleagues are well aware of our court’s reputation, and the majority of our court is thus understandably on the lookout for some inconsequential Second Amendment case where they can chalk up the extraordinary win— similar to how most law schools try to have at least one “conservative” faculty member so they can tout their intellectual diversity. Anybody who falls for such a weak charade is, to quote our Chief Justice, a chump. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 825 (2015) (Roberts, C.J., dissenting). 3 One California state court has construed these statutes to criminalize all possession of switchblades—even inside private spaces. In re S.C. v. S.C., 179 Cal. App. 4th 1436, 1438, 1441 (2009) (holding that the identical, prior version of Cal. Pen. Code § 21510 “is violated any time a person carries a switchblade knife on his or her person, regardless of where the possession occurs,” including in a nonpublic area). 16 KNIFE RIGHTS, INC. V. BONTA

a way that Bruen—a facial challenge case—doesn’t support. That’s bad enough. But worse, we shouldn’t even be here. A. Our court addressed a similar issue a few years ago in Teter v. Lopez, where our good colleague Judge Bea—a fantastic judge, even if he occasionally misses the target on the Second Amendment 4 —wrote an outstanding decision explaining why Hawaii’s similar complete ban on butterfly knives violated the right to keep and bear arms. See Teter v. Lopez (Teter I), 76 F.4th 938, 942 (9th Cir. 2023), reh’g en banc granted, opinion vacated, 93 F.4th 1150 (9th Cir. 2024), and vacated on reh’g en banc, 125 F.4th 1301 (9th Cir. 2025). The original Teter panel’s decision was right— it dealt with a similar categorical ban on similar knives, and it squarely rejected the flawed reasoning the panel employed here. Butterfly knives are comparable to switchblades for all relevant purposes—they are a species of pocketknife with a handle split into two components and a folding blade that can be opened by “a few short, quick movements” with one hand. Teter I, 76 F.4th at 942; see Cal. Pen. Code § 17235 (defining a switchblade knife as a “knife having the appearance of a pocketknife [including] a spring-blade knife, snap-blade knife, gravity knife, or any other similar type knife, the blade or blades of which are two or more inches in length and which can be released automatically by a flick of a button, pressure on the handle, flip of the wrist or other mechanical device, or is released by the weight of the blade

4 See, e.g., Yukutake v. Lopez, 130 F.4th 1077, 1108–24 (9th Cir. 2025) (Bea, J., dissenting), reh’g en banc granted, opinion vacated, 144 F.4th 1119 (9th Cir. 2025). KNIFE RIGHTS, INC. V. BONTA 17

or by any type of mechanism whatsoever”). And just like the California switchblade ban in this case, the Hawaii law challenged in Teter completely banned butterfly knives. See Teter I, 76 F.4th at 942. Hawaii even relied on the same justification for its outright ban as California does here: it felt that butterfly knives were “associated with criminals.” Teter I, 76 F.4th at 949; cf. Knife Rights, Inc. v. Bonta, 165 F.4th 1330, 1345 (9th Cir. 2026) (“California targeted switchblades specifically because of the particular danger these weapons present, and their common association with criminality.”). The Teter plaintiffs claimed these statutes violated the Second Amendment, and a panel of our court agreed. First, the three-judge Teter panel recognized there was no serious debate that butterfly knives qualify as “arms” under the Second Amendment. See Teter I, 76 F.4th at 948–50. Heller made clear that the Second Amendment extends to all bearable arms: “[w]eapons of offence, or armour of defence” and “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” District of Columbia v. Heller, 554 U.S. 570, 581 (2008) (alteration in original) (citations omitted). Obviously, any knife would meet that definition. But see Knife Rights, 165 F.4th at 1339 (merely assuming, and refusing to decide, that the plain text of the Second Amendment applies to the possession and carry of switchblades). Hawaii therefore had to prove that its categorical ban on those knives was “consistent with this Nation’s historical tradition of regulating weapons.” Teter I, 76 F.4th at 950 (citing N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17–20, 32–33 (2022)). And like California here, Hawaii tried to meet that burden by arguing that antebellum or later laws banning “Bowie knives,” “metal knuckles,” “sword- 18 KNIFE RIGHTS, INC. V. BONTA

canes,” “Arkansas Toothpicks,” and “slung-shots” established “an historical tradition of banning weapons associated with criminality.” Id. at 951; cf. Knife Rights, 165 F.4th at 1341–45. Judge Bea’s opinion correctly explained why these statutes could not justify Hawaii’s absolute ban on butterfly knives. “As Bruen put it, the ‘how’ … [was] different”— these statutes did “not ban the possession of knives; they regulated only their carry.” Teter I, 76 F.4th at 951. And the vast majority of these antebellum or later statutes “prohibited the concealed carry” of these weapons, or their carry by certain persons or in certain sensitive places. Id. at 951–52. There was no tradition of categorically prohibiting all “carry of pocketknives, much less their possession outright.” Id. at 952–53. These narrow bans on some forms of carry could not support Hawaii’s categorical ban on all forms of possession and carry. So how did we get to today’s decision, which holds precisely the opposite? If you’re familiar with our court, you can easily guess the answer. Like every Ninth Circuit panel decision that vindicates the Second Amendment, Teter proved to be yet another Pyrrhic victory for the fundamental right to keep and bear arms. As day follows night, our court “called the case en banc. And after the en banc vote played out in all-too- predictable fashion, the Chief Judge issued an administrative order not only granting en banc review, but also vacating the panel’s opinion.” Teter v. Lopez (Teter II), 125 F.4th 1301, 1310 (9th Cir. 2025) (en banc) (VanDyke, J., dissenting in part). No judge voted on that vacatur order, and only the Chief Judge signed it, but it proved consequential. Automatically vacating the Teter panel decision KNIFE RIGHTS, INC. V. BONTA 19

greenlighted Hawaii’s decision to strategically moot the case and let categorical knife bans live to fight another day. And sure enough, soon after we took Teter en banc, Hawaii strategically narrowed its butterfly knife ban to cover everything but the conduct the Teter plaintiffs wanted to engage in, and argued its amendments mooted the Teter plaintiffs’ claims. Id. at 1308–10. The en banc panel spotted Hawaii an assumption of good faith and agreed that the case was moot. Id. 5 As I explained then, our court’s practice of automatically vacating panel opinions creates obvious perverse incentives for government defendants. It allows States to strategically deploy mootness by amending their challenged laws only after this court grants rehearing en banc. Through one simple move, a State can lock in the effect of our auto- vacatur and eliminate any risk of losing on the merits before the en banc court. This, in turn, gives the State—or another State with a similar law—a second bite at the apple before a more favorable panel. That perverse incentive structure is “basically the mirror image” of the kind our Munsingwear precedents aim to counteract. Id. at 1310 (VanDyke, J., dissenting). As I suggested then, the en banc panel in Teter should have vacated our prior vacatur order, thereby reinstating the

5 Hawaii seems fond of amending its laws in an attempt to moot Second Amendment cases once our court takes them en banc. See, e.g., Hawaii State Senate, JDC Public Hearing 03-29-2022 9:30 a.m., https://www.youtube.com/live/KMpT6JngXG8?t=5301s [https://perma.cc/8URU-GCJR], at 1:28:21–1:28:43 (YouTube, Mar. 29, 2022) (testimony of Hawaii deputy attorney general, testifying “on behalf of the department of the Attorney General” “who supports this bill” to “address a recent federal court ruling … that invalidated two Hawaii statutes”). 20 KNIFE RIGHTS, INC. V. BONTA

precedential value of the panel’s opinion, because Hawaii, the en banc petitioner, took deliberate action to moot the case after rehearing en banc was granted. Id. at 1317. But of course we didn’t. 6 Teter was a Second Amendment case, after all, and our court is nothing if not militant when trying to find a way to uphold a weapons restriction. Everyone knew then, and knows now, that the entire point of allowing Hawaii to play the panel erasure game in Teter was to leave the way open for a decision like Knife Rights. Is it rude to say “I told you so”? Today we see the full consequences of letting Hawaii game our auto-vacatur practice. The panel in this case holds that Knife Rights’ challenge to California’s categorical switchblade ban can be rejected if the panel can think of a

6 Judge Wardlaw claims that this vacatur was “mandatory” under our General Orders. See Concurrence of Wardlaw, J., at 13 n.5. But this is historical revisionism. As Judge Wardlaw acknowledges, the version of General Order 5.5(d) that Judge Wardlaw cites is not the version that existed when the Chief Judge vacated the Teter panel opinion. See Teter, 125 F.4th at 1313–14 (VanDyke, J., dissenting). When the Teter panel opinion was vacated, the relevant provision from our General Orders said nothing about vacatur and provided only that, after a successful en banc call, “[t]he three-judge panel opinion shall not be cited as precedent ….” Id. at 1313. Judge Wardlaw, like Judge Miller before her, suggests that the Teter vacatur simply followed what had always been our consistent practice. See Concurrence of Wardlaw, J., at 13 n.5 (citing Teter v. Lopez, 135 F.4th 1176, 1178 (9th Cir. 2025) (Miller, J., concurring)). But this isn’t accurate. See Teter, 125 F.4th at 1312–14 (VanDyke, J., dissenting). The panel opinion was thus vacated ultra vires. The most that can be said to support the vacatur in Teter is that it was not the only panel opinion vacated this way before we amended our rules to authorize it. But as everyone knows, the mere fact that our court has maintained an unwritten practice of doing something is hardly evidence of its lawfulness. See, e.g., Rojas-Espinoza v. Bondi, 167 F.4th 1069–79 (9th Cir. 2026) (VanDyke, J., dissenting). KNIFE RIGHTS, INC. V. BONTA 21

single constitutional application for the law. And to give credit where it’s due, this move makes some strategic (if not legal) sense—if your goal is to avoid enforcing the Second Amendment. No historical evidence supports a categorical ban on all forms of carrying knives. As Bruen explained, “history reveals a consensus that States could not ban public carry altogether.” Bruen, 597 U.S. at 53. Even our court’s pre-Bruen case law recognized the same thing, albeit reluctantly and backhandedly. See Peruta v. Cnty. of San Diego, 824 F.3d 919, 942 (9th Cir. 2016) (“If there is such a right [to public carry], it is … a right to carry a firearm openly.”), abrogated in part on other grounds, 597 U.S. 1. So if a panel really wants to uphold California’s complete switchblade ban, this might be the only way to do it. But we are a court after all—not a collection of policy strategists or cabal of regulators—so legal sense should matter. And that is lacking here. On the panel’s view, historical statutes banning one type of carry can justify modern statutes banning all carry. Under this reasoning— like God’s bargain with Abraham, in which just a few righteous men in Sodom would have been enough to forestall the city’s destruction—a blatantly unconstitutional ban on all weapons can be upheld if it has even a single conceivable constitutional application. This reasoning doesn’t jibe with Bruen. We are supposed to ask if the laws have the same “how”—in other words, whether the modern regulation “operate[s] in different ways” than the historical analogues the State points to. United States v. Hemani, 608 U.S. ___, ___, 2026 WL 1751710, at *6 (2026); accord United States v. Rahimi, 602 U.S. 680, 711 (2024) (Gorsuch, J., concurring). And complete bans on all forms of carry, transfer, and public possession don’t work in remotely the same way as bans on some forms of carry. 22 KNIFE RIGHTS, INC. V. BONTA

At any rate, the Knife Rights panel could employ this gambit only because of Hawaii’s adept maneuvering, enabled by our improper auto-vacatur practice, to moot Teter. The Teter panel unanimously held that a historical tradition of banning some forms of carry doesn’t justify a blanket ban on all forms of carry. That analysis was right and consistent with Bruen. And had we refused to let Hawaii game our auto-vacatur practice in Teter, it would have controlled here and prevented this panel’s errant decision to uphold California’s complete switchblade ban. B. This case, like Teter before it, is just one more predictable chapter in our court’s long campaign against the Second Amendment. While the particulars vary from case to case, that story has the simplest basic plot: the government always wins; the Second Amendment plaintiff always loses. Our court will use any judicial tool—no matter how illegitimate—to avoid enforcing the right to keep and bear arms. Second Amendment plaintiffs in the Ninth Circuit are permanently stuck in the unfortunate position of having brought a knife to a gunfight. And that has remained true despite several landmark Supreme Court decisions that should have corrected our case law. Before Heller, the law in our circuit was that the Second Amendment “right of the people to keep and bear arms,” U.S. Const. amend. II (emphasis added), wasn’t an individual right at all, but a right that belonged to the States, see Hickman v. Block, 81 F.3d 98, 100–01 (9th Cir. 1996), cert. denied, 519 U.S. 912 (1996), overruled by District of Columbia v. Heller, 554 U.S. 570 (2008). After Heller corrected us and made clear that the Second Amendment recognizes “an individual right to keep and bear KNIFE RIGHTS, INC. V. BONTA 23

arms,” 554 U.S. at 595, we created a “means-ends” interest balancing test where we would (1) determine whether the challenged law affected conduct historically protected by the Second Amendment; and (2) apply varying levels of scrutiny to review the constitutionality of the regulation. See, e.g., Young v. Hawaii, 992 F.3d 765, 783–84 (9th Cir. 2021) (en banc), vacated, 142 S. Ct. 2895 (2022). We selected the level of scrutiny based on (1) how close the law came to the “core” of the Second Amendment right and (2) the severity of the law’s burden on that right. E.g., United States v. Chovan, 735 F.3d 1127, 1138 (9th Cir. 2013), abrogated by Bruen, 597 U.S. at 17. Essentially always, these steps led us to apply a form of so-called “intermediate scrutiny,” under which we required “(1) the government’s stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective.” Id. at 1139. That framework was so malleable that it effectively amounted to rational basis review. Guns are dangerous, after all, and we always found the government’s interest in mitigating such danger to be important. See McDougall v. Cnty. of Ventura, 23 F.4th 1095, 1122 n.9 (9th Cir.) (VanDyke, J., concurring), reh’g en banc granted, opinion vacated, 26 F.4th 1016 (9th Cir. 2022), and on reh’g en banc, 38 F.4th 1162 (9th Cir. 2022). And we watered down the “reasonable fit” prong to such an extent that the government merely had to show that its regulation “promote[d] a substantial government interest that would be achieved less effectively absent the regulation.” Silvester v. Harris, 843 F.3d 816, 829 (9th Cir. 2016) (emphasis added) (citation omitted). As I’ve explained, it’s hard to imagine how a law could survive even rational basis review if the State’s interest would be achieved more effectively without a 24 KNIFE RIGHTS, INC. V. BONTA

challenged law. McDougall, 23 F.4th at 1123 n.11 (VanDyke, J., concurring). So this test, labeled “intermediate scrutiny,” imposed effectively no scrutiny. Under it, a State’s regulatory concerns always trumped the individual plaintiff’s right to keep and bear arms. I’m not exaggerating: between Heller in 2008, and Bruen in 2022, we considered at least 50 Second Amendment challenges— significantly more than any other circuit—and ultimately denied all of them. Duncan v. Bonta, 19 F.4th 1087, 1165– 66 (9th Cir. 2021) (en banc) (VanDyke, J., dissenting), vacated, 142 S. Ct. 2895 (2022). If you were a sports fan, and one team was literally undefeated for more than a decade, you might suspect that something was up. Then came Bruen, where the Supreme Court expressly rejected the use of such interest balancing “means-end scrutiny in the Second Amendment context” and described the two-step approach as “one step too many.” 597 U.S. at 19. Instead, we are to apply the Second Amendment’s text and historical understanding. Id. at 26. If the “Second Amendment’s plain text covers an individual’s conduct,” then “the Constitution presumptively protects that conduct.” Id. at 17. The government may rebut that presumption only if it “affirmatively prove[s] that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 19. This requires the government to “identify a well-established and representative historical analogue,” and we must decide whether the challenged regulation and historical analogues are “relevantly similar.” Id. at 29, 30 (citation omitted). Our “central” consideration should be whether the modern regulation “impose[s] a comparable burden on the right of armed self-defense” and whether “that burden is comparably justified.” Id. at 29. Simply, the historical analogues and KNIFE RIGHTS, INC. V. BONTA 25

challenged regulation must have a similar “how” and “why.” Id. But since Bruen, we’ve quickly come up with a number of other analytical jukes to continue our resistance to the Second Amendment. For example, we’ve misread Bruen as creating two separate tests: what we’ve called the “more nuanced approach” and the “straightforward” approach. See, e.g., Duncan v. Bonta, 133 F.4th 852, 870–72 (9th Cir. 2025) (en banc). Seizing on a few lines from Bruen, we’ve decided that a more “nuanced” or “flexible analogical” approach applies when a modern regulation seeks to address new “societal concerns” or “dramatic technological changes.” Id. at 874 (citation omitted). The more “flexible analogical approach” seemingly lets us skip over rigorous application of Bruen’s history and tradition test and uphold a weapons regulation if we decide—which we inevitably do—that there’s a difference between the technology and societal problems that existed at the Founding and those that exist today. See id. at 873–74. In other cases, we’ve held that restrictions on “ancillary rights”—like the right to acquire firearms in the first place— do not come within the Second Amendment’s plain text at all unless they “meaningfully constrain” the right to keep and bear arms for self-defense. See B & L Prods., Inc. v. Newsom, 104 F.4th 108, 117–19 (9th Cir. 2024). This language appears nowhere in the Second Amendment, Heller, or Bruen, but that didn’t stop us from asserting that it “faithfully tracks the Second Amendment’s plain text.” Id. at 119. And given our track record with the Second Amendment, you might correctly expect that we’d find all sorts of weapons-related restrictions not really all that “meaningful.” 26 KNIFE RIGHTS, INC. V. BONTA

The panel’s decision here is another good example of how we can avoid meaningful Second Amendment scrutiny. Under the panel’s view of facial challenges, virtually any categorical weapons ban could be upheld if a historical analogue justifies banning a small subset of the outlawed activity. Just enact the same ban from Bruen or Heller, include a narrow application that is constitutional and— voila!—your firearms ban is now facial-challenge-proof. Americans who want to exercise their constitutional rights will have to chip away at the law one as-applied challenge at a time. We wouldn’t treat other rights this way. If California’s legislature categorically banned all speech critical of the governor, we would never uphold it just because it could be applied to criminalize certain unprotected categories of speech like true threats or incitement. See Virginia v. Black, 538 U.S. 343, 359 (2003); Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam). If Oregon’s legislature passed a law permitting warrantless searches in all circumstances, we would never uphold it just because it could authorize consent searches or searches pursuant to the emergency aid exception. See Fernandez v. California, 571 U.S. 292, 298 (2014); Michigan v. Fisher, 558 U.S. 45, 47 (2009) (per curiam). And if Washington’s legislature provided that no indigent criminal defendant would henceforth be appointed counsel at any stage of any criminal proceeding, we wouldn’t uphold that statute because it could be constitutionally applied to deny counsel in the context of post-conviction proceedings. See Garza v. Idaho, 586 U.S. 232, 245 (2019). And so on. What’s more, post-Bruen—just as before—the occasional panel decision that vindicates the Second Amendment is promptly called en banc, vacated, and ultimately replaced with more circuit precedent undermining KNIFE RIGHTS, INC. V. BONTA 27

the right to keep and bear arms. See, e.g., Baird v. Bonta, 163 F.4th 723 (9th Cir.), reh’g en banc granted, opinion vacated, 172 F.4th 1105 (9th Cir. 2026); Rhode v. Bonta, 145 F.4th 1090 (9th Cir.), reh’g en banc granted, opinion vacated, 159 F.4th 1170 (9th Cir. 2025); Yukutake, 130 F.4th 1077, reh’g en banc granted, opinion vacated, 144 F.4th 1119 (9th Cir. 2025). The bottom line is that Bruen—like Heller before it— changed nothing here in the Ninth Circuit. We still have plenty of tricks up our sleeves to avoid vindicating the Second Amendment. And we’ll come up with as many more as we need to. 7 It’s impossible to square any of this with the Supreme Court’s instruction that the Second Amendment right to keep and bear arms should no longer be treated as a “second- class” right. Bruen, 597 U.S. at 70 (quoting McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion)). We would never bend over backwards to find some bespoke rationalization to avoid vindicating the constitutional rights that most of my colleagues favor. To the contrary, our court often goes out of its way to extend those rights far beyond their original public understanding to achieve desired policy outcomes. See, e.g., United States v. Hansen, 25 F.4th 1103, 1105 (9th Cir. 2022) (misconstruing a federal law prohibiting “encourag[ing] or induc[ing]” illegal immigration in order to find it unconstitutionally

7 That’s not to say that Second Amendment litigation in the Ninth Circuit is necessarily boring. It’s a lot like watching a Harlem Globetrotters game: you know the Globetrotters are going to win, but the acrobatics involved in getting to that foregone conclusion can still make for a fascinating spectacle—as long as you don’t mind that the Washington Generals never win. 28 KNIFE RIGHTS, INC. V. BONTA

overbroad under the First Amendment), rev’d, 599 U.S. 762 (2023); United States v. Sineneng-Smith, 910 F.3d 461 (9th Cir. 2018) (injecting sua sponte into an appeal an overbreadth challenge to this same statute), vacated and remanded 590 U.S. 371, 375 (2020) (holding that the Sineneng-Smith panel had “departed so drastically from the principle of party presentation as to constitute an abuse of discretion” and remanding “for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel”); Martin v. City of Boise, 920 F.3d 584, 603 (9th Cir. 2019) (holding that the Eighth Amendment’s Cruel and Unusual Punishments Clause barred a city “from prosecuting people … for sleeping outside on public property when those people have no home or other shelter to go to”), abrogated by City of Grants Pass v. Johnson, 603 U.S. 520 (2024); Martinez v. City of Oxnard, 270 F.3d 852, 857–58 (9th Cir. 2001) (holding that mere “coercive questioning” violated the Fifth and Fourteenth Amendments even when the defendant’s statements were not used against him in a criminal proceeding), rev’d sub nom. Chavez v. Martinez, 538 U.S. 760 (2003); Compassion in Dying v. Washington, 79 F.3d 790, 816 (9th Cir. 1996) (en banc) (holding that the “Constitution encompasses a due process liberty interest in controlling the time and manner of one’s death—that there is, in short, a constitutionally recognized ‘right to die’”), rev’d sub nom. Washington v. Glucksberg, 512 U.S. 702 (1997). But in the courts of this country’s most populous federal circuit, the right to keep and bear arms—the palladium of liberty—is effectively a dead letter. It is important that the Supreme Court Justices understand this reality: in the Ninth Circuit, things are no different after Heller and Bruen than they were before. No different. KNIFE RIGHTS, INC. V. BONTA 29

II. That we work so hard to avoid following the Supreme Court’s instructions—and have so often gotten away with it—might seem counterintuitive to the average person. When your boss tells you that you did something wrong, you might be frustrated. You might disagree. You might even vent about it off the clock with some “vulgar barroom talk.” Olympus Spa v. Armstrong, 169 F.4th 817, 845 (9th Cir. 2026) (statement of McKeown, J.). But when you’re done kvetching, you’ll probably try to fix the problem, because you know that if you don’t, you’ll soon be looking for a new job. Yet strange as it may seem to the outside observer, that’s not how it works on our court—at least when it comes to rights that a majority of my colleagues dislike (religious liberty and the Second Amendment, for example). When our boss, the Supreme Court, tells us we erred, we don’t apologize, and we don’t rush to fix the problem. We don’t even feel the need to come up with some half-baked excuse for why the dog ate our homework. We persist in open defiance. Indeed, a majority of my colleagues, who see the law very differently than the Supreme Court on certain key issues, may even welcome the rare reversal from the Supreme Court in a case involving a hot-button social issue and view it as a badge of honor. See, e.g., Andrew Manuel Crespo, In Memoriam: Judge Stephen Reinhardt, 131 Harv. L. Rev. 2101, 2102 (2018). What better way to demonstrate your bona fides to the liberal legal establishment? What judges on our court don’t like, however, is when they’re perceived as so bad at their job that they get summarily reversed. A short summary reversal sends a 30 KNIFE RIGHTS, INC. V. BONTA

message so clear and stern it could embarrass even a judge on the Ninth Circuit. So here’s my modest proposal: if the Supreme Court really wants to be serious about genuinely doing something to address the Second Amendment’s uniquely disfavored status in America’s most populous federal circuit, it’s going to need to prescribe stronger medicine than what it’s given us so far. A. The benchslap I’ve been accused of using “vulgar barroom talk” to get my point across, Olympus Spa, 169 F.4th at 845 (9th Cir. 2026) (statement of McKeown, J.), so let me assuage my colleagues’ selective Victorian predilections up front. Calm down. In making my recommendation today, I’ve chosen a word that, while evocative, would never be the punchline to a coarse joke at your local bar, and even has an official entry in the lawyer’s dictionary of choice. Black’s Law defines “benchslap” as “[a] judge’s sharp rebuke of counsel, a litigant, or perhaps another judge[.]” Benchslap, Black’s Law Dictionary (12th ed. 2024). Basically, a benchslap is a form of stern judicial correction designed to impose public shame for improper litigation or judicial conduct. See Joseph P. Mastrosimone, Benchslaps, 2017 Utah L. Rev. 331, 334 (2017). Wayward attorneys have been benchslapped for everything from engaging in the “ostrich-like tactic” of pretending that adverse precedent KNIFE RIGHTS, INC. V. BONTA 31

does not exist, 8 to citing A.I.-hallucinated cases, 9 to asking to suspend a murder trial to attend the annual Ernest Hemingway look-alike contest. 10 The deterrent effect is real. Nobody wants to become insta-famous for receiving the viral benchslap of the day. The benchslap isn’t just a tool for overworked judges to deal with the latest antic of unprofessional counsel. It’s also a tool our nation’s highest Court has sometimes deployed to correct lower courts’ repeated refusal to follow precedent. The Supreme Court’s benchslaps are more formally known as summary reversals. A summary reversal occurs when the Supreme Court grants certiorari and immediately reverses the lower-court decision, without merits briefing or argument, “rather than the more usual grant of certiorari, followed by three sets of briefs on the merits, oral argument, and a decision several months after certiorari was granted.” Edward A. Hartnett, Summary Reversals in the Roberts Court, 38 Cardozo L. Rev. 591, 591–92 (2016).

8 Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931, 934 (7th Cir. 2011) (Posner, J.) (noting that the “ostrich is a noble animal, but not a proper model for an appellate advocate” and then helpfully including a picture of an ostrich burying its head in the sand). 9 See, e.g., Payne v. State, —S.E.2d—, 2026 WL 1215905 (Ga. Sup. Ct. May 5, 2026). Here’s a related practice tip: if you’re a lawyer and you find yourself citing a Ninth Circuit decision that seems to vindicate the Second Amendment right, you should definitely double- (and triple-) check that it’s not an A.I.-hallucinated case. 10 This actually happened. See United States v. Bottorff, No. 8:11-cr- 269-T-23AEP, 2012 WL 2449858, at *1 (M.D. Fla. June 22, 2012) (“Between a murder-for-hire trial and an annual look-alike contest, surely Hemingway, a perfervid admirer of ‘grace under pressure,’ would choose the trial…. Best of luck to counsel in next year’s contest. The motion … is DENIED.”). 32 KNIFE RIGHTS, INC. V. BONTA

Summary reversals serve several purposes. Commentators note that they “enforce the Court’s supremacy over recalcitrant lower courts,” William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 2 (2015), and “rebuke lower courts for resisting the Supreme Court’s commands,” Richard C. Chen, Summary Dispositions as Precedent, 61 Wm. & Mary L. Rev. 691, 710 (2020). Justices on the Supreme Court have likewise described summary reversal as “bitter medicine,” Spears v. United States, 555 U.S. 261, 268 (2009) (Roberts, C.J., dissenting), prescribed when lower courts “seek to defy” Supreme Court precedent, Pavan v. Smith, 582 U.S. 563, 568 (2017) (Gorsuch, J., dissenting). These sterile descriptions, while accurate, don’t fully capture the stinging impact of a summary reversal. When the Supreme Court summarily reverses, it’s essentially sending a clear (if harsh) message to a lower court:

Dear lower court: Your decision sucks…. And it sucks so badly, it isn’t even worth a closer look. Kindly re-do it. Regards, The Supreme Court.

I have to respectfully disagree with commentators who have criticized the benchslap as a form of inappropriate judicial bullying. See Mastrosimone, Benchslaps, 2017 Utah L. Rev. at 353, 375–76. While it’s no doubt strong medicine, a benchslap can be a form of much-needed judicial correction in response to demonstrated lower court recalcitrance. KNIFE RIGHTS, INC. V. BONTA 33

To see just how effective a series of summary reversals from the Supreme Court can be, consider an example from recent Ninth Circuit history. In the mid-2000s, the Antiterrorism and Effective Death Penalty Act (AEDPA) had been the law for nearly a decade, instructing federal courts not to grant habeas relief unless the state court’s decision is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Yet some federal courts of appeals (any guesses as to which?) persisted in open defiance of Congress’s command. Because the Supreme Court could not realistically grant certiorari to correct every single misapplication of AEDPA, it began issuing summary reversals. From 2005 to June 2019, the Supreme Court summarily reversed eighty-eight cases. Chen, Summary Dispositions as Precedent, 61 Wm. & Mary L. Rev. at 706 & n.74. Forty- one of those summary reversals came in federal habeas cases. Id. at 707 & n.81. Our court was a particularly bad offender and therefore a frequent recipient of the Supreme Court’s summary reversals during this period: by my count, fifteen (more than a third) of the Supreme Court’s habeas summary reversals corrected Ninth Circuit decisions. 11 To

11 Schriro v. Smith, 546 U.S. 6 (2005) (per curiam); Kane v. Garcia Espitia, 546 U.S. 9 (2005) (per curiam); Wong v. Belmontes, 558 U.S. 15 (2009) (per curiam); Swarthout v. Cooke, 562 U.S. 216 (2011) (per curiam); Felkner v. Jackson, 562 U.S. 594 (2011) (per curiam); Cavazos v. Smith, 565 U.S. 1 (2011) (per curiam); Ryan v. Schad, 570 U.S. 521 (2013) (per curiam); Marshall v. Rodgers, 569 U.S. 58 (2013) (per curiam); Nevada v. Jackson, 569 U.S. 505 (2013) (per curiam); Lopez v. Smith, 574 U.S. 1 (2014) (per curiam); Glebe v. Frost, 574 U.S. 21 (2014) (per curiam); Johnson v. Lee, 578 U.S. 605 (2016) (per curiam); 34 KNIFE RIGHTS, INC. V. BONTA

give a flavor of these summary reversals, consider Glebe, where the Supreme Court summarized the improper reasoning employed by a panel of this court and then responded with one word: “No.” Glebe, 574 U.S. at 25. When the Nation’s highest Court issues the same monosyllabic correction that a frazzled parent gives her whining toddler, it’s kind of embarrassing (to the toddler). It worked. While the process wasn’t pleasant, our AEDPA decisions improved. Judges on our court now more often—although sadly not always—afford the appropriate level of deference to state-court decisions that AEDPA requires. 12 And when they’re tempted to reverse simply because they would have analyzed the case differently had they been in the shoes of the relevant state court, my more “experienced” colleagues at least have the threat of a possible summary reversal in the back of their mind. That fear of a summary reversal provides a greater incentive to behave than any concern about the occasional reversal in a full Supreme Court opinion. B. Benchslaps for the Second Amendment Our historical (and, sometimes, ongoing) resistance to the Supreme Court’s AEDPA jurisprudence pales in comparison to our unwavering defiance of the Court’s

Kernan v. Hinojosa, 578 U.S. 412 (2016) (per curiam); Kernan v. Cuero, 583 U.S. 1 (2017) (per curiam); Sexton v. Beaudreaux, 585 U.S. 961 (2018) (per curiam). 12 When the Supreme Court cited a list of recent AEDPA summary reversals, there was no decision from our court on the list. See Klein v. Martin, 607 U.S. 213, 214 (2026) (citing cases). Of course, that doesn’t mean we’re guaranteed to avoid future AEDPA summary reversals— especially if we regress. See, e.g., Doyle v. Royal, 161 F.4th 570 (9th Cir. 2025). KNIFE RIGHTS, INC. V. BONTA 35

Second Amendment jurisprudence. Even before the decade of Supreme Court AEDPA summary reversals, we would at least occasionally apply the proper level of deference to state-court decisions. In contrast, we effectively never vindicate the right to keep and bear arms. And when a panel does, our court takes the decision en banc, vacates the panel’s decision, and ultimately upholds the arms regulation. By this point, it is clear enough that a Second Amendment reversal every few years sadly does nothing to protect the particularly disfavored constitutional right to keep and bear arms. It’s equivalent to the parent of a chronically delinquent child taking away TV privileges for fifteen minutes for one day every few years and hoping that will somehow put the child back on the straight and narrow. Not going to work. But a series of good summary reversals— and given our Court’s intransigence, it will take more than one—could. As I see it, the summary reversal approach has several key advantages. First, Justices on the Supreme Court are so busy. Issuing summary reversals will save them time and allow them to address other important issues rather than correcting our blatantly errant work. Our circuit decides more Second Amendment cases than any other, and it’s simply not possible for the Supreme Court to grant certiorari in every one of our wayward decisions. But summarily reversing and remanding for a second try will enable the Supreme Court to expedite the process and put an end to the “can’t catch ’em all” game our court loves to play. See Linda Greenhouse, Dissenting Against the Supreme Court’s Rightward Shift, N.Y. TIMES (Apr. 12, 2018). Second, by summarily reversing, the Supreme Court won’t have to develop new doctrine or waste time repeating holdings it has already made. It can just cite Bruen and force 36 KNIFE RIGHTS, INC. V. BONTA

our court to gain some much-needed practice faithfully applying the proper Second Amendment framework. Most of my colleagues can’t fathom writing a pro-Second Amendment opinion. They need to get some reps in. Forcing them to bite the bullet and make a ruling they disagree with will operate as a form of exposure therapy. The first time writing an opinion that enforces the Second Amendment will no doubt feel scary. But after doing it a few times, they’ll realize it’s not so bad as they thought. Third, the threat of embarrassment on summary reversal will allow the core message of Bruen finally to sink in: laws that restrict the right to keep and bear arms—just like laws that restrict any other fundamental right—are presumptively unconstitutional. 597 U.S. at 24. This means that, while applying the Bruen framework is “not always easy,” many Second Amendment cases are simply “not hard.” Wolford v. Lopez, 609 U.S. ___, ___, 2026 WL 1825723, at *20 (June 25, 2026) (Barrett, J., concurring) (emphasis added). But you’d never know that if you follow this court’s Second Amendment jurisprudence. The truth is that a majority of my colleagues treat every arms restriction as presumptively constitutional and then have to work really hard to confirm that presumption. Consequently, in our circuit, the line between hard and easy cases doesn’t exist. Every Second Amendment case turns into a hard one. Take the very recent case of Wolford, for example, where the Supreme Court easily backhanded Hawaii’s attempt to justify its law prohibiting firearms on private property without the express and affirmative consent of the property owner by pointing to colonial anti-poaching laws. 609 U.S. at ___, 2026 WL 1825723, at *12–13. Could laws prohibiting unauthorized hunting on private land justify banning lawful public carry in every “gas station, coffee KNIFE RIGHTS, INC. V. BONTA 37

shop, grocery store, or other private property open to the public without express and unambiguous consent?” Id. at *13. Obviously not, the Supreme Court said: “The question answers itself.” Id. But not for us! We treated Wolford like an unsolvable Gordian knot that could be untied only by … you guessed it … deferring to the State’s regulatory concerns and upholding the ban. See Wolford v. Lopez, 116 F.4th 959, 976–1003 (9th Cir. 2024), cert. granted in part, 146 S. Ct. 79 (2025), rev’d and remanded, 609 U.S. ___, 2026 WL 1825723. And we do the same thing in every Second Amendment case. It’s always complicated. There’s always so much arduous analysis. And the final result is always the same: the arms restriction must win. Our court’s efforts are a crucial part of a broad and energetic campaign to deliberately overcomplicate Bruen. Legal academics, the mainstream media, and complicit judges are working overtime to push hard the narrative that Bruen is unworkable, unclear, and just too difficult to apply. Some say “[h]istory is messy,” “not straightforward or fair,” and that it “makes no sense for contemporary society to pledge allegiance to the founding era’s … understanding of the Constitution.” See State v. Wilson, 543 P.3d 440, 453– 54 (Haw. 2024), abrogated in part by Wolford, 609 U.S. at ___, 2026 WL 1825723, at *11. Some say Bruen is “insane” to require judges “to hunt down obscure, colonial- era statutes” “from the age of muskets” to justify “perfectly sensible gun laws.” Ruth Marcus, Ye olde Supreme Court? Your originalism is making America unsafe., Washington Post, (Feb. 4, 2023). Some, like former district court judge Kimberly J. Mueller, strangely spend 15 pages of an order trashing Bruen itself—cribbing from the “greatest hits” list of Heller and Bruen critics—before purporting to apply Bruen faithfully to the case at hand (and, shocker, finding no 38 KNIFE RIGHTS, INC. V. BONTA

Second Amendment violation). See Baird v. Bonta, 709 F. Supp. 3d 1091, 1093, 1103–1118 (E.D. Cal. 2023), aff’d in part, rev’d in part, 163 F.4th 723 (9th Cir.), vacated, 172 F.4th 1105 (9th Cir. 2026). 13 These, and many other, voices cry out in unison: “Bruen is just too hard to apply. Please! Return to interest balancing!” As with any constitutional right, no doubt there are going to be some hard Second Amendment questions. But there is an obvious disconnect when Justices of the Supreme Court emphasize that Second Amendment questions it just reviewed “are not hard,” Wolford, 609 U.S. at ___, 2026 WL 1825723, at *20 (Barrett, J., concurring)—indeed, are so easy that the government’s arguments “cannot be taken seriously,” id. at ___, 2026 WL 1825723, at *14—while our court, considering the same issues, murdered a small forest of trees with myriad pages of dense and opaque analysis before “taking a step back” from its final “analysis” and acknowledging its conclusion about “the lists of places where a State likely may ban … the carry of firearms appear[s] arbitrary” and “the lack of an apparent logical connection … is hard to explain in ordinary terms.” Wolford, 116 F.4th at 976–1003. As Wolford shows, applying Bruen in this circuit is only hard because my

13 These are just a few examples to illustrate the common refrains in this “Bruen-is-too-hard” pressure campaign. See also Tonja Jacobi & Cory Conley, Is Bruen The New Usery?, 67 Wm. & Mary L. Rev. Online 1529 (2026); Brandon P. Denning & Glenn H. Reynolds, Essay: Trouble’s Bruen: The Lower Courts Respond, 108 Minn. L. Rev. 3187 (2024); Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, 73 Duke L.J. 67 (2023); Clara Fong, et al., Judges Find Supreme Court’s Bruen Test Unworkable, Brennan Ctr. for Justice (June 26, 2023), https://www.brennancenter.org/our- work/research-reports/judges-find-supreme-courts-bruen-test- unworkable [https://perma.cc/CW35-AC3M]. KNIFE RIGHTS, INC. V. BONTA 39

colleagues are stretching their considerable analytical and imaginative powers to the limit in search of any possible way to uphold an arms restriction—effectively applying a presumption of constitutionality. Tell any first-year law student about a city code “that target[s] speech based on its communicative content,” and they’ll quickly and intuitively recognize that the law is probably unconstitutional and unlikely to survive judicial review. Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015). “Easy” Second Amendment cases should be similar. The fact that my court has never encountered an “easy” Second Amendment case is a huge tell of how vigorously we are collectively kicking against the goads. Summarily reversing—telling lower courts in unignorable and unmistakable terms: (1) you got it badly wrong; (2) this is an easy question; (3) try again—will reinforce that laws burdening the Second Amendment right are presumptively unconstitutional—not just in theory, but in reality. That presumption should make many cases an easy call. This, in turn, will allow the Supreme Court to focus its energies on the actually hard cases. Finally, a word in response to Judge Wardlaw. I agree that if we were only dealing with “differing interpretations of the law,” then the stern criticism that I’ve employed here wouldn’t be necessary. Concurrence of Wardlaw, J., at 13. But let’s stop pretending: our Second Amendment jurisprudence is rooted not in “differing interpretations of the law,” but in this court’s consistent, long-term, demonstrated refusal to follow the law. If the results in our Second Amendment cases really reflected a diversity of views among the majority of my colleagues, you’d expect a diversity of outcomes. Instead, we have a shockingly 40 KNIFE RIGHTS, INC. V. BONTA

monolithic jurisprudence: the government wins, the Second Amendment loses. Despite this glaring track record, our court loves to give lip-service to the fiction that “all agree” the Second Amendment is not a “second-class right,” and that our court’s Second Amendment jurisprudence is simply the byproduct of reasonable disagreement from case-to-case. Id. at 11. That is precisely what I am disputing. My point—one Judge Wardlaw never addresses, instead attempting to just shoot the messenger—is that when it comes to the Second Amendment, the “exceptions” always win, which can only be explained by an underlying bias against the Second Amendment. Cf. id. And because of that, we’ll continue discovering and creating as many new “exceptions” as we need to ensure that doesn’t change. The content and tone of this dissent is necessary precisely because of our court’s consistent attempts, like Judge Wardlaw’s here, to simply wave our hands in an attempt to distract from the severity of our Second Amendment recalcitrance by strategically deployed complexity and manipulative calls for faux collegiality. At some point our court’s cover-up will stop working. I’m asking the Supreme Court to help in that regard. If we are truly concerned about the “credibility” of our court, and our reputation as judges, we should follow the law rather than contort it to reach our preferred outcomes. It should go without saying: we should care more about being credible than about looking credible. *** We should have taken this case en banc. But our refusal to do so surprises no one. Even after Bruen, we still have an arsenal of ways to avoid doing the unthinkable: applying the KNIFE RIGHTS, INC. V. BONTA 41

Second Amendment of the United States Constitution. Like a clever, spoiled child, we’ve successfully defied the Supreme Court’s Second Amendment precedent for nearly two decades. The Supreme Court has let us get away with it. And without some stern correction, we’ll continue to do so. Until the Supreme Court takes more serious and sustained action to correct us, our court’s Second Amendment case law will never improve. Wolford’s nice, but it literally affects nothing on my court. To paraphrase 17th-century satirist Samuel Butler, “What med’cine else can cure the fits/ Of [judges] when they lose their wits?”14 Some benchslaps, that’s what.

TUNG, Circuit Judge, joined by CALLAHAN, R. NELSON, COLLINS, LEE, BRESS, BUMATAY, and VANDYKE, Circuit Judges, dissenting from the denial of rehearing en banc:

This case asks whether California’s ban on the carrying of switchblade knives violates the Second Amendment. The panel rejected a facial challenge to this ban, and it did so on the basis of a tradition banning the concealed carrying of knives. That reasoning is wrong. 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. In holding otherwise, the panel retreads a path that the U.S.

14 Samuel Butler, Hudibras, Part II, Canto I, line 841 (Hartford, S. Andrus & Son 1845) (1664). 42 KNIFE RIGHTS, INC. V. BONTA

Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), expressly foreclosed. The panel’s decision also conflicts with a State Supreme Court decision concluding that the Second Amendment protects the carrying of switchblade knives. The panel’s reasoning is not just wrong. It should set off alarm bells. If accepted, it would upend Bruen and essentially shield from constitutional scrutiny any law that categorically and totally bans the carrying of arms. Never would our court have tolerated, with respect to any other constitutional right, the sort of analytical move that the panel made here. The Supreme Court even reminded us just last month that “[t]he right protected by the Second Amendment is entitled to no less protection than other constitutional rights.” Wolford v. Lopez, 609 U.S. ---, --- n.13 (2026). We should have granted en banc review to fix the panel’s obvious error and its open circumvention of the Supreme Court’s instructions. I dissent. I. A. Perhaps no tool has been more important to man’s survival than the knife. Since the Stone Age, knives have been used for all sorts of purposes, including as weapons and cutting tools. Harold L. Peterson, Daggers and Fighting Knives of the Western World, from the Stone Age till 1900 1–2 (1968) (“Daggers and Fighting Knives”). When Viking explorers reached American shores a millennium ago, they carried scramasaxes on their persons—bladed “weapons so highly prized, it is said, that they never left their owner’s side day or night.” Harold L. Peterson, American Knives: The First History and Collectors’ Guide 6 (1958) (“American Knives”). In the 1600s, English settlers in the colonies KNIFE RIGHTS, INC. V. BONTA 43

carried knives too—most popularly, the “kidney” knife, with lobes that formed its hilt. Id. at 14. In the 1700s, frontiersmen (including those who later fought in the American Revolution) could not do without knives, which were used for scavenging, hunting, and defense. Id. at 21; see also George C. Neumann, Swords and Blades of the American Revolution 14 (1973) (“Swords and Blades”) (“Belt and pocket knives, too, accompanied him in the developing eastern settlements and on the western frontier.”). Simply put, “[k]nives and daggers were personal necessities to the early American.” Swords and Blades at 227. “Everyone had a knife” during the colonial period, and “[a]s long as a man was required to defend his life,” a “knife was a constant necessity.” American Knives at 6. Well into the 1800s, too, “men of all walks of life” were “accustomed to wear a knife as a necessary part of their garb.” Daggers and Fighting Knives at 68. By the Civil War, “knife manufacture” in the United States “was in full swing”—as “an age of specialization in pocketknives” (of which the switchblade knife was a species) “set in.” American Knives at 133, 137. The switchblade knife, in particular, has had a storied history. Generally defined, a switchblade is a type of pocketknife that releases a folding or sliding blade upon the pressing of a button or lever. “Springblade knives” (a precursor to the modern switchblade) “have been made for hundreds of years because there has always been a need for a pocketknife that can be opened easily when the hands are wet, cold, or covered with gloves.” Ben Myers & Lowell Myers, An Introduction to Switchblade Knives 6 (1982) (“An Introduction to Switchblade Knives”). In the 1700s, for example, certain types of flint-lock pistols incorporated such 44 KNIFE RIGHTS, INC. V. BONTA

knives; “[i]f the pistol mis-fired (which frequently happened) the person would touch the release button and the blade would open up, and be available for use.” Id.; see also H. Gordon Frost, Blades and Barrels 230–32 (1972); Knife Rights, Inc. v. Bonta, 165 F.4th 1330, 1333 (9th Cir. 2026) (“Primitive switchblades date back to at least the eighteenth century[.]”). Patents for switchblade knives proliferated immediately after the Civil War. The “gravity knife” (the blade of which is released by gravity as opposed to a spring or other mechanism) was patented in 1862. See An Introduction to Switchblade Knives at 94; U.S. Patent No. 35,964 (“This device is particularly intended for carpenters’ use, and its principal advantage is that it can be opened and closed with one hand. . . . It is a very simple instrument, which can be used in place of the ordinary pocket-knife, and which can be made at a trifling cost.”). Patents for other variants quickly followed—the “compressed spring straight-line knife” (1866); the “coiled-spring side-opening knife” (1878); the “curved-spring side-opening knife” (1883); the “pull-spring knife” (1895); the “compressed spring side-opening knife” (1922); the “pin-pull” knife (1944); and many more. See An Introduction to Switchblade Knives at 23–25, 28–29; U.S. Patent No. 57,902; U.S. Patent No. 199,766; U.S. Patent No. 273,858; U.S. Patent No. 551,052; U.S. Patent No. 1,412,373; U.S. Patent No. 2,360,165. The large-scale production of “switchblades in the United States began in the 1880s, shortly after the first switchblade patents were granted in this country.” Mark Erickson, Antique American Switchblades: Identification & Value Guide 6 (2004) (“Antique American Switchblades”). “Over a 50 year period from the mid 1890s to the mid 1940s there had been approximately 20 different companies who KNIFE RIGHTS, INC. V. BONTA 45

had manufactured switchblade knives in this country.” Id.; cf. Knife Rights, 165 F.4th at 1333 (“[M]odern switchblades did not become popularized in the United States until after World War II.”). Switchblade knives served many useful purposes other than as a weapon. For instance, such knives “were extremely handy for the fisherman and there was a time when most tackle boxes were not complete without a switch blade knife inside.” Antique American Switchblades at 6. “There were switchblades specifically designed for hunters, fishermen, soldiers, farmers, veterinarians, mechanics, office workers, seamstresses, high school girls, Boy Scouts and also for Girl Scouts.” Id. The automatic-release feature of the switchblade “save[d] many broken fingernails.” Id.; see also 13-ER-3219 (“Automatic Push Button Knife by Edgemaster”). The switchblade, the Department of Justice had opined, “is not inherently dangerous but requires the introduction of a wrongful human element to make it so.” Letter from Deputy Attorney General William P. Rogers to Representative Oren Harris (Apr. 12, 1957), in Senate Report No. 1980 (July 28, 1958) (responding to a congressional request for the Department’s view concerning a bill that would “prohibit the introduction, or manufacture for introduction, into interstate commerce of switchblade knives”). “Switchblade knives in the hands of criminals are, of course, potentially dangerous weapons.” Id. But “they serve useful and even essential, purposes in the hands of persons such as sportsmen, shipping clerks, and others engaged in lawful pursuits[.]” Id.; see also Paul Clark, Criminal Use of Switchblades: Will the Recent Trend Towards Legalization Lead to Bloodshed?, 13 Conn. Pub. Int. L.J. 219, 233 (Spring-Summer 2014) (detailing 46 KNIFE RIGHTS, INC. V. BONTA

“numerous” examples of “useful” purposes that switchblades serve including a “medical provider” “need[ing] to use one hand to push pressure on a wound” and “us[ing] the other hand to cut away clothing or restraints”). It was not until the 1950s that legislatures sought to ban a person from carrying a switchblade knife. Motion-picture films made during this period portrayed the phenomenon of teenage gang violence, linked such violence with the switchblade knife, and galvanized support for switchblade bans. See An Introduction to Switchblade Knives at 9; Clark, Criminal Use of Switchblades, 13 Conn. Pub. Int. L.J. at 236 (“Some of the most famous movies of the 1950s prominently featured switchblades . . . . Switchblades came to be associated with crime, and especially juvenile delinquency in New York.”); see also Jack H. Pollack, The Toy that Kills, Woman’s Home Companion, Nov. 1950, at 38. In 1957, the State of California banned a person from carrying “concealed upon his person” a “switch-blade knife having a blade over two inches in length.” Cal. Stats. 1957, c. 355, p. 999, § 1. That statute did not ban, however, the open carrying of a switchblade knife. Thirty years later, the California legislature amended the law to prohibit not only the concealed carry of the switchblade knife, but also the open carrying of that knife. Cal. Stats. 1986, c. 1422, p. 5116, § 1. The current version of the prohibition remains materially unchanged. As relevant here, the statute makes it a crime for a person to carry a switchblade knife (whether KNIFE RIGHTS, INC. V. BONTA 47

openly or in a concealed manner in public). See Cal. Pen. Code §§ 21510, 17235. 1 B. Plaintiffs brought a challenge, under the Second and Fourteenth Amendments, to the California statute banning the carrying of switchblade knives. The Second Amendment (incorporated by the Fourteenth Amendment to the States) provides that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. The Supreme Court has instructed us to follow a two-step test in assessing whether a challenge under the Second Amendment is valid—first, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct”; and second, “[t]o justify its regulation, the government may not

1 California’s Penal Code § 21510 states: “Every person who does any of the following with a switchblade knife having a blade two or more inches in length is guilty of a misdemeanor: (a) Possesses the knife in the passenger’s or driver’s area of any motor vehicle in any public place or place open to the public; (b) Carries the knife upon the person; (c) Sells, offers for sale, exposes for sale, loans, transfers, or gives the knife to any other person.” Cal. Pen. Code § 17235 defines a switchblade knife as “a knife having the appearance of a pocketknife and includes a spring-blade knife, snap-blade knife, gravity knife, or any other similar type knife, the blade or blades of which are two or more inches in length and which can be released automatically by a flick of a button, pressure on the handle, flip of the wrist or other mechanical device, or is released by the weight of the blade or by any type of mechanism whatsoever.” This definition “does not include a knife that opens with one hand utilizing thumb pressure applied solely to the blade of the knife or a thumb stud attached to the blade, provided that the knife has a detent or other mechanism that provides resistance that must be overcome in opening the blade, or that biases the blade back toward its closed position.” Id. 48 KNIFE RIGHTS, INC. V. BONTA

simply posit that the regulation promotes an important interest.” Bruen, 597 U.S. at 17. “Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Id. Only if an arms “regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” Id. (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)). Before the district court, Plaintiffs argued that, under Bruen, California’s ban on the carrying of switchblade knives is unconstitutional. Plaintiffs claimed that the conduct of carrying such knives fell within the scope of the Second Amendment’s plain text (step one of Bruen) and that the State of California failed to shoulder its burden of demonstrating (at step two) that its ban was consistent with this Nation’s historical tradition of arms regulation. 5-ER- 1055–74. The district court granted summary judgment against Plaintiffs. It reasoned that Plaintiffs failed to satisfy step one of the Bruen test because Plaintiffs failed to show that switchblade knives were “arms” in common use today. Knife Rights, Inc. v. Bonta, No. 3:23-cv-00474-JES-DDL, 2024 WL 4224809, at *7 (S.D. Cal. Aug. 23, 2024). The district court also concluded that the State had not met its burden at step two, but because in the court’s view Plaintiffs failed at step one, the district court upheld the ban. Id. at *8– 9. The panel sustained the ban on different grounds. It assumed (without deciding) that, at step one of Bruen, switchblades were “arms” presumptively protected under the Second Amendment. Knife Rights, 165 F.4th at 1339. KNIFE RIGHTS, INC. V. BONTA 49

But the panel held that the State satisfied step two (thus rebutting the presumption) by demonstrating a national tradition analogous to California’s ban. Id. at 1345. The panel conducted the step-two analysis in the following way. First, the panel construed Plaintiffs’ challenge as a facial challenge and required Plaintiffs to show that the ban was unconstitutional “in all of its applications.” Id. at 1335. Next, the panel asserted that one of those applications is a prohibition on the concealed carrying of switchblade knives—even though the statute does not distinguish between concealed carry and open carry, but criminalizes, on its face, any carrying of switchblade knives. Id. at 1341–45. The panel then found that there was a historical tradition banning the concealed carrying of weapons, including knives, and therefore there was an application of the ban that was lawful. Id. at 1341. Critical to its analysis, the panel relied on the Supreme Court’s statement in District of Columbia v. Heller, 554 U.S. 570 (2008), that “prohibitions on carrying concealed weapons were lawful under the Second Amendment[.]” Knife Rights, 165 F.4th at 1341 (quoting Heller, 554 U.S. at 626). Accordingly, the panel concluded, Plaintiffs’ facial challenge could not succeed. II. The panel’s opinion is flawed. In sustaining California’s total ban on public carry, the panel invoked a historical tradition of laws banning the carrying of concealed weapons (including firearms and knives) while ignoring that those same laws also allowed for the open carrying of those weapons. The panel’s reasoning runs directly counter to Bruen. As the Supreme Court made clear in that case, a tradition of concealed-carry bans is not enough to justify a 50 KNIFE RIGHTS, INC. V. BONTA

total ban like the one that California imposes on its citizens. Bruen, 597 U.S. at 53. To justify California’s total ban, the panel cites Heller’s statement that “prohibitions on carrying concealed weapons were lawful under the Second Amendment.” Knife Rights, 165 F.4th at 1341 (quoting Heller, 554 U.S. at 626). But that statement cannot bear the weight that the panel places on it. Addressing the very same quotation that the panel cites, Bruen concluded that “concealed-carry prohibitions were constitutional only if they did not similarly prohibit open carry.” 597 U.S. at 53 (emphasis in original). In other words, concealed-carry prohibitions would not be constitutional if they also banned open carry. Id. at 54 (“[I]t was considered beyond the constitutional pale in antebellum America to altogether prohibit public carry.”). Here, California bans both concealed and open carry of switchblades, and hence it is not proper for the panel to invoke laws that ban only concealed carry as historical support for a ban on public carry altogether. The relevant passage from Bruen is worth quoting in full, not only because the panel disregarded it entirely, but also because it shows that the Supreme Court expressly rejected the exact reasoning that the panel employs here:

In the early to mid-19th century, some States began enacting laws that proscribed the concealed carry of pistols and other small weapons. As we recognized in Heller, “the majority of the 19th-century courts to consider the question held that [these] prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” KNIFE RIGHTS, INC. V. BONTA 51

Respondents unsurprisingly cite these statutes—and decisions upholding them—as evidence that States were historically free to ban public carry. In fact, however, the history reveals a consensus that States could not ban public carry altogether. Respondents’ cited opinions agreed that concealed-carry prohibitions were constitutional only if they did not similarly prohibit open carry. . . . All told, these antebellum state-court decisions evince a consensus view that States could not altogether prohibit the public carry of “arms” protected by the Second Amendment or state analogues.

Id. at 52–55 (emphasis in original) (citations omitted). The import of all this is plain. Just like the government parties in Bruen, the panel here mistakenly relies on laws that contain a concealed-carry prohibition but not a similar prohibition on open carry. As far as I can gather, there is no historical tradition of totally banning the public carrying of knives (including switchblades). Indeed, the opposite appears to be true. The vast majority of laws the panel itself cites allowed some sort of public carry (usually open carry). See Appendix A. Even today, it appears that only seven States (including California) and the District of Columbia expressly ban the possession or carrying of switchblade knives. 2 Doubtless, a

2 See Cal. Pen. Code § 21510; Conn. Gen. Stat § 53-206; D.C. Code § 22–4514(a); Minn. Stat. § 609.66 subd. 1(a)(4); N.J. Stat. § 2C:39- 3(e); N.M. Stat. § 30-7-8; N.Y. Penal L. § 265.01(1); Wash. Rev. Code 52 KNIFE RIGHTS, INC. V. BONTA

small handful of territorial laws cited by the panel banned the carrying of knives (see Appendix B), but Bruen already explained that the government’s reliance on such territorial laws was misplaced (e.g., they were “rarely subject to judicial scrutiny,” the populations living under them were “miniscule,” and they were “short-lived”), and those scattered laws could not, in any event, displace the overwhelming historical evidence permitting some form of public carry. See 597 U.S. at 67–69. A few other laws cited by the panel are irrelevant—either because those laws did not prohibit knives at all or because they prohibited the carrying of knives with intent to harm or in sensitive places (qualifications that California’s total ban lacks). See Appendix C. The few remaining laws that the panel cites did ban public carry of knives altogether (see Appendix D (fewer than ten)), but those are limited “outliers” in relation to the far more widespread tradition permitting some form of public carry. Bruen, 597 U.S. at 70. 3 Contrary to the panel’s conclusion, then, there is no national tradition that is analogous to California’s total ban on the public carrying of switchblades. 4 That alone provides grounds to vacate the panel’s opinion.

§ 9.41.250(1)(a). Delaware had a switchblade prohibition that was repealed in 2025. See 2025 Del. L. Ch. 119 (S.B. 108) (repealing 11 Del. C. § 1446). Another provision does state that “[n]o person licensed or unlicensed shall possess, sell, or offer for sale any switchblade knife,” but that provision appears to apply only to dealers. 24 Del. C. § 901. 3 Indeed, as Bruen discusses, one of the statutes the panel cites—1837 Ga. Acts. 90, § 1—was held to be unconstitutional to the extent the statute banned “bearing arms openly.” Bruen, 597 U.S. at 54 (citing Nunn v. State, 1 Ga. 243, 251 (1846)). 4 The panel notes that “Dr. Spitzer” (the State’s expert) “found that at least ‘15 states banned all carrying of Bowie knives[.]’” Knife Rights, KNIFE RIGHTS, INC. V. BONTA 53

The panel cannot point to its “facial” analysis to salvage its opinion. It is true (as the panel says) that a facial challenge can succeed only if the plaintiff shows that there exists “no set of circumstances” under which the law would be valid. United States v. Rahimi, 602 U.S. 680, 693 (2024) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). But beyond that, the panel’s analysis veers off track: one “application” of the total ban, the panel says, is a ban on the concealed carrying of the knife; the panel then narrows its historical inquiry to ask if there was a tradition banning such concealed carrying. Knife Rights, 165 F.4th at 1341. But that “facial” analysis is improper. The challenged statute is a total ban—not a concealed-carry ban. And so, any historical analysis (under the second step of Bruen) must be conducted with respect to that ban—not some other, narrower ban that the legislature did not enact. The proper historical comparator, therefore, would be a tradition banning public carrying altogether (like California’s law). If (as here) no such tradition exists, the total ban cannot be constitutional under any circumstance.

165 F.4th at 1344. But Dr. Spitzer himself conceded in deposition that this tally was inaccurate—two of the cited laws, he admitted, did not ban “all carrying” but banned concealed carrying. 10-ER-2551–53; see also 10-ER-2556 (Q: “[W]ould you state that 15 states banned all carrying of Bowie knives?” A: “No. . . . I may have simply been mistaken.”); see also Appendix E. Moreover, a few of the other “states” he cited were, in fact, territories, which Bruen already instructed us to discount. See Appendix E. Still other laws he cited prohibited only carry with intent to harm or in sensitive places—they did not ban public carry altogether. See id.; see also 10-ER-2555. Despite the expert’s confessed errors, the State continued to represent (wrongly) that “15 states” “banned both open and concealed carry[.]” Ans. Br. at 35. The State’s (and the panel’s) reliance on a report admitted by its own author as inaccurate is, to put it mildly, misguided. 54 KNIFE RIGHTS, INC. V. BONTA

It is hard to see how the analysis could proceed otherwise. If a total ban could always be reconceived as a narrower ban (as the panel would allow), then a total ban would survive any Second Amendment facial challenge. On the panel’s logic, one “application” of a total ban could be to prohibit a violent felon from carrying a firearm. Another “application” could be prohibiting a person from carrying that firearm with the intent to terrify surrounding passers-by. Because such “applications” would likely be permissible, a facial challenge to a total ban would always fail, if we followed the panel’s logic. That is not the law. Bruen and Heller invalidated certain gun bans on their face. 5 The Court did not reconceptualize the bans in a narrow way to see if those narrower, imagined versions of the law could withstand constitutional scrutiny. If the panel were right, courts could maneuver with ease around Bruen and Heller merely by reconceiving the bans as something narrower. But a court must take the ban as it comes. And it must assess the government’s proffered historical analogues against that ban, not some other ban. A court is not allowed, by clever craft, to immunize total bans from facial constitutional

5 Compare Amended Complaint ¶ 46, New York State Rifle & Pistol Ass’n v. Beach (Bruen Complaint), No. 18-cv-134-BKS-ATB (N.D.N.Y. filed May 16, 2018) (“facially” attacking New York’s law requiring “proper cause” to conceal-carry firearms while also banning open carry), with Bruen, 597 U.S. at 71 (holding that New York’s law “violates the . . . right to keep and bear arms”); see Antonyuk v. James, 120 F.4th 941, 986 (2d Cir. 2024) (“Bruen was a facial challenge”). Compare also Complaint ¶¶ 15, 22, Parker v. District of Columbia, No. 1:03-cv-02131 (D.D.C. filed Nov. 6, 2003) (Heller Complaint) (attacking D.C.’s law banning “the home ownership and possession of handguns by private citizens”), with Heller, 554 U.S. at 635 (holding that “the District’s ban on handgun possession in the home violates the Second Amendment”); see also City of Los Angeles v. Patel, 576 U.S. 409, 415 (2015) (describing Heller as addressing a “[f]acial challenge[]”). KNIFE RIGHTS, INC. V. BONTA 55

scrutiny and reduce our “palladium of liberty” to a near nullity. Heller, 554 U.S. at 606 (quoting 1 Tucker’s Blackstone at App. 300). Invoking Rahimi does not help the panel. There, the Court rejected the plaintiff’s facial challenge to 18 U.S.C. § 922(g)(8). That statute prohibits the carrying of a firearm by any person who is subject to a “court order” (issued after notice and opportunity for a hearing) that restrains the person from threatening an intimate partner or child, and that either (1) “includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child” or (2) “by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury[.]” 18 U.S.C. § 922(g)(8)(C)(i), (C)(ii). The two ways described above in which the “court order” could subject a person to criminal liability under section 922(g)(8) are contained, respectively, in sub-provisions (C)(i) and (C)(ii). The Court in Rahimi held that, in order for the plaintiff to prevail in his facial challenge to section 922(g)(8), he needed to show that both sub-provisions were unconstitutional and, because he could not do that with respect to sub-provision (C)(i), his challenge to section 922(g)(8) necessarily failed. 602 U.S. at 693. That analysis has no bearing here on California’s total carry ban. To start, California prohibits any law-abiding citizen from carrying a tool that has been used and carried for hundreds of years. It does not just impose a ban on persons, deemed dangerous by a court, from possessing arms. California’s law is thus completely different from section 922(g)(8). Key to the Court’s facial analysis in Rahimi, too, section 922(g)(8) “provides two independent bases for liability.” 602 U.S. at 693. Thus, if one basis was 56 KNIFE RIGHTS, INC. V. BONTA

constitutionally permissible (as the Court found), then the plaintiff’s facial challenge to section 922(g)(8) would not succeed. But that is just not the sort of challenge that Plaintiffs mount here. Plaintiffs challenge a total ban on public carry; it is the combined effect of banning both concealed carry and open carry that works the constitutional violation. For the panel to disaggregate one effect (a ban on concealed carry) from the other effect (a ban on open carry), and then to find that the former is permitted and conclude that Plaintiffs’ challenge fails, is to misconstrue the nature of Plaintiffs’ claim altogether. Perhaps it is easier to see the fallacy in the panel’s logic if we removed ourselves from the often-fraught Second Amendment context. A facial challenge to a complete prohibition on a litigant’s access to the courts is not defeated simply because it would be permissible to deny access some of the time (e.g., non-business hours and federal holidays). Nor would a facial challenge to a complete ban on protesting be defeated merely because protesting could lawfully be restricted by time, place, and manner. So too here: a facial challenge to a complete prohibition on carrying cannot be nixed just because the State could permissibly prohibit some form of carrying. The State cannot ban all forms of carrying (as Bruen teaches). That is what Plaintiffs are challenging. Even if the ban here could be conceived more narrowly, the panel’s conclusion would still be wrong. Bruen again tells us why. The case addressed a facial challenge to a concealed-carry restriction, and even in the context of that narrow challenge (not a challenge to a total ban), the Court held that the government could not justify the concealed- carry restriction by pointing to a history of concealed-carry KNIFE RIGHTS, INC. V. BONTA 57

prohibitions, which (again) “were constitutional” only because “they did not similarly prohibit open carry.” 597 U.S. at 53 (emphasis in original). 6 The upshot is this: if reliance on historical concealed-carry bans could not defeat a challenge to a modern concealed-carry restriction in Bruen, then surely it cannot defeat a challenge to a narrowed conception of California’s ban as “applied” to concealed carry here. En banc review was warranted not only because the panel’s analysis is wrong. It was warranted also because the panel’s decision produces a conflict with the decision of at least one State Supreme Court. 7 In Commonwealth v. Canjura, the Supreme Judicial Court of Massachusetts held that a state law prohibiting people from carrying switchblade knives violated the Second Amendment. 494 Mass. 508, 509 (2024). The court concluded that a switchblade is an “arm” under “the plain text of the Amendment” and that the government failed to demonstrate that the state “prohibition is consistent with this nation’s historical tradition of arms

6 That is why Judge Wardlaw is wrong when she states that “California’s switchblade regulations constitutionally prohibit concealed carry.” Conc. at 10 n.2 (emphasis added). Bruen makes clear that a prohibition on concealed carry is not constitutional when open carry is also prohibited. 7 Judge Wardlaw acknowledges a conflict with a decision of the Supreme Judicial Court of Massachusetts but contends that this does not support en banc review. Conc. at 11 n.3. To be sure, Federal Rule of Appellate Procedure 40(b)(2) does not require specification of a state-supreme- court conflict in a petitioner’s statement. But such a conflict supports the notion that “the proceeding involves one or more questions of exceptional importance.” Fed. R. App. P. 40(b)(2)(D). In any event, the panel’s decision “conflicts with a decision of the United States Supreme Court” (Fed. R. App. P. 40(b)(2)(B))—Bruen—which is sufficient to justify en banc review. 58 KNIFE RIGHTS, INC. V. BONTA

regulation.” Id. at 511. The court also ruled that switchblades are in “common use” today for self-defense and are not “dangerous and unusual” weapons. Id. at 515– 16; see also State v. Delgado, 298 Or. 395, 403–04 (1984) (holding that the prohibition on the carrying of a switchblade knife violated the defendant’s right to bear arms under the Oregon Constitution). The Supreme Judicial Court of Massachusetts has the better view, and we should have taken this case en banc to correct the panel’s plain error. * * * I do not deny that the switchblade has been “associated” in the public imagination “with criminal activity.” Knife Rights, 165 F.4th at 1333. The spate of laws passed to prohibit the carrying of such a device may have had its impetus in films released in the 1950s, after which the switchblade became the symbol of teenage crime and gang violence. But the constitutional validity of such laws depends not on modern fads or Hollywood vibes, but on what the Second Amendment protects as a matter of original meaning. Sound constitutional adjudication requires, then, a fair assessment of what our Nation’s history and traditions proscribed. The panel failed in that task when it rejected Plaintiffs’ constitutional challenge. Even on the panel’s own evidence, no historical tradition exists in our country of completely banning the public carry of knives. Just the reverse—“the history reveals a consensus that States could not ban public carry altogether.” Bruen, 597 U.S. at 53 (emphasis in original). Yet that is just what California has done. I respectfully dissent. KNIFE RIGHTS, INC. V. BONTA 59

Appendix A

Laws that are cited by the panel and that prohibit concealed carry but allow open carry. These laws appear in alphabetical order by jurisdiction.

Number Law Text That if any person shall carry concealed about his person any species of fire arms, or any bowie knife, Arkansas tooth-pick, or any other knife of the like kind, dirk, or any other deadly weapon, the person Act of Feb. 1, so offending, shall on conviction 1839, No. 77, 1 thereof, before any court having § 1, 1839 Ala. competent jurisdiction, pay a fine Acts 67, 67 not less than fifty nor more than five hundred dollars, to be assessed by the jury trying the case; and be imprisoned for a term not exceeding three months, at the discretion of the Judge of said court.

That any person who carries concealed about his person brass Act of Apr. 8, knuckles, slung shot, or either 1873, No. 87, weapon of like kind or description, 2 § 1, 1872–1873 shall, on conviction thereof, be fined Ala. Laws 130, not less than twenty nor more than 130–31 two hundred dollars, and may also, at the discretion of the court trying the case, be imprisoned in the county jail, or sentenced to hard labor for 60 KNIFE RIGHTS, INC. V. BONTA

the county for a term not exceeding six months.

Any person in this territory having or carrying concealed any dirk, dirk- knife, bowie-knife, slung-shot, brass-knuckles, or pistol, or other ARIZ. REV. weapon within any city, village or STAT. § 662 3 town in this territory, shall be fined (1887) in any sum not more than three hundred dollars, or be imprisoned in the county jail not more than six months, or be punished by both such fine and imprisonment.

It shall be unlawful for any person [except a peace officer in actual service and discharge of his duty] to Act of Mar. 6, have or carry concealed on or about 1891, No. 2, his person any pistol or other § 1, 1893 Ariz. firearm, dirk, dagger, slung-shot, 4 Sess. Laws 3, 3 sword cane, spear, brass knuckles, or (brackets in other knuckles of metal, bowie knife original) or any kind of knife of weapon except a pocket-knife not manufactured and used for the purpose of offense and defense.

Act of Apr. 27, Every person, not being a peace 1863, ch. 485, officer or traveler, who shall wear or 5 carry any dirk, pistol, sword in a § 1, 1863 Cal. Stat. 748, 748 cane, slung-shot, or other dangerous or deadly weapon, concealed, shall, KNIFE RIGHTS, INC. V. BONTA 61

upon conviction thereof before any Court of competent jurisdiction, be deemed guilty of a misdemeanor, and shall be imprisoned in the County Jail for not less than thirty nor more than ninety days, or fined in any sum not less than twenty nor more than two hundred dollars.

Every person not being peace officer, Provost Marshal, enrolling officer, or officer acting under the laws of the United States in the Department of the Provost Marshal of this State, State and Federal Assessors, Collectors of Taxes and Licenses while in the performance of Act of Mar. 1, official duties, or traveler, who shall 1864, ch. 128 carry or wear any dirk, pistol, sword 6 § 1, 1863–1864 in cane, slungshot, or other Cal. Stat. 115, dangerous or deadly weapon 115–16 concealed, shall, upon conviction thereof before any Court of competent jurisdiction, be deemed guilty of a misdemeanor, and shall be imprisoned in the County Jail for not less than thirty nor more than ninety days, or fined in any sum not less than twenty nor more than two hundred dollars.

7 Oakland, Cal., It shall be unlawful for any person in Ordinance No. the City of Oakland, not being a 62 KNIFE RIGHTS, INC. V. BONTA

1141, § 1 (May public officer or a traveler actually 15, 1890), engaged in making a journey, to reprinted in wear or carry concealed about his City Charter of person without a permit, as the City of hereinafter provided, any pistol, Oakland, Cal., slung-shot, brass or iron knuckles, also General sand club, dirk or bowie knife, or Municipal iron bar or other dangerous or Ordinances of deadly weapon, or any sling or other Said City in contrivance by which shot or other Effect October missiles are or may be hurled or 1, 1898, at projected. A written permit may be 332–33 granted by the Mayor for a period of (Oakland, not to exceed one year to any Enquirer Publ’g peaceable person whose profession Co. 1898) or occupation may require him to be out at late hours of the night to carry a concealed deadly weapon upon his person.

Stockton, Cal., It shall be unlawful and a Ordinance No. misdemeanor . . . [f]or any person 53, § 1 (Being not being a peace officer or actually originally No. prosecuting a journey to or from the 324, approved town, city or county of his residence, Mar. 31, 1891, to wear or carry concealed about his 8 as amended), person any pistol, dirk, bowie-knife, reprinted in slungshot, sand-club, metallic Charter and knuckles or any other deadly or Ordinances of dangerous weapon, except he first the City of have a written permit to so do from Stockton 240 the Mayor of the City of Stockton. (Stockton, KNIFE RIGHTS, INC. V. BONTA 63

Stockton Mail, Printers & Bookbinders 1908)

If any person, or persons shall within any city, town or village in this State, whether the same is incorporated or not carry concealed upon his, her or their person any pistol, revolver, derringer, bowie- knife, razor, dagger, sling-shot or other deadly weapon, such person, or persons shall upon conviction thereof before any police magistrate Act of Apr. 10, or justice of the peace, be punished 1891, § 1, 1891 9 by imprisonment in the county jail Colo. Sess. for a term not exceeding thirty days, Laws 129, 129 or by a fine of not more than fifty dollars with costs or by both such fine and imprisonment, in the discretion of the court; and in case any such fine is not paid, the offender may be committed to, and confined in the county, or city jail one day for each two dollars of such fine, or until such fine is paid in money or by such confinement.

Washington, It shall not be lawful for any person 10 D.C., Act or persons to carry or have Against the concealed about their persons any Carrying of deadly or dangerous weapons, such 64 KNIFE RIGHTS, INC. V. BONTA

Concealed as dagger, pistol, bowie knife, dirk Weapons (Nov. knife, or dirk, colt, slungshot, or 18, 1858), brass or other metal knuckles within reprinted in the City of Washington; and any William B. person or persons who shall be duly Webb, The convicted of so carrying or having Laws of the concealed about their persons any Corporation of such weapon shall forfeit and pay the City of upon such conviction not less than Washington twenty dollars nor more than fifty 418 (1868) dollars; which fines shall be prosecuted and recovered in the same manner as other penalties and forfeitures accruing to the city are sued for and recovered: Provided, That the Police officers when on duty shall be exempt from such penalties and forfeitures.

That from and after the 1st of April, Georgetown, 1859, it shall not be lawful for any D.C., An person or persons to have about their Ordinance persons any concealed deadly or Prohibiting the dangerous weapons, such as Carrying of daggers, pistols, bowie-knives, dirk- Firearms, &c. knives, colt, slung-shots, or brass or 11 (Apr. 2, 1859), other metallic knuckles, within the reprinted in limits of this Corporation; and any Ordinances of person or persons who shall be duly the Corporation convicted of so carrying or having of Georgetown on their persons any such weapons, 22–23 (1860) shall forfeit and pay upon such conviction not less than five dollars KNIFE RIGHTS, INC. V. BONTA 65

nor more than twenty dollars, which fine shall be prosecuted and recovered in the same manner as other fines and forfeitures according to this Corporation are sued for and recovered: Provided, That the police officers and military, when on duty, shall be exempt from such fines and forfeitures. And be it further enacted, That all such weapons named above shall be taken away from the persons on whom they may be found, and deposited with the Mayor.

That it shall not be lawful for any person or persons to carry or have concealed about their persons any deadly or dangerous weapons, such as daggers, air-guns, pistols, bowie- knives, dirk-knives, or dirks, razors, Act of Aug. 10, razor-blades, sword-canes, slung- 1871, ch. 25, shots, or brass or other metal 12 § 1, 1871–1872 knuckles, within the District of D.C. Laws 33, Columbia; and any person or 33 (1872) persons who shall be duly convicted of so carrying or having concealed about their persons any such weapons shall forfeit and pay, upon such a conviction, not less than twenty dollars nor more than fifty dollars, which fine shall be prosecuted and recovered in the 66 KNIFE RIGHTS, INC. V. BONTA

same manner as other penalties and forfeitures are sued for and recovered: Provided, That the officers, non-commissioned officers, and privates of the United States army, navy, and marine corps, police officers, and members of any regularly organized militia company or regiment, when on duty, shall be exempt from such penalties and forfeitures.

That from and after the passage of this Act, it shall not be lawful for any person in this Territory, to carry arms of any kind whatsoever secretly, on or about their persons; and if any dirk, pistol, or other arm, or weapon, except a common pocket knife, shall be seen, or known to be Act of Jan. 30, secreted upon the person of any one 1835, ch. 860 in this Territory, such person so 13 offending, shall on conviction, be § 1, 1835 Fla. Acts 318, 318 fined not exceeding five hundred dollars, and not less than fifty dollars, or imprisoned not more than six months, and not less than one month, at the discretion of the jury: Provided however, that this law shall not be so construed as to prevent any person from carrying arms openly, outside of all their clothes; and it shall be the duty of judges of the KNIFE RIGHTS, INC. V. BONTA 67

superior courts in this Territory, to give the matter contained in this act in special charge to the grand juries in the several Counties in this Territory, at every session of the Courts.

Every person not being a sheriff, deputy sheriff, constable or other police officer, who shall carry or wear within the incorporated limits of Boise City, Idaho, any bowie BOISE CITY, knife, dirk knife, pistol or sword in IDAHO, cane, slung-shot, metallic knuckles, CHARTER AND or othe[r] dangerous or deadly REV. weapons, concealed, unless such 14 ORDINANCES persons be traveling or setting out on ch. 1, § 36, a journey, shall, upon conviction approved May thereof before the city magistrate of 1, 1879 (1894) said Boise City, be fined in any sum not exceeding twenty-five dollars for each offense, or imprisoned in the city jail for not more than twenty days, or by both such fine and imprisonment.

No person, except peace officers, HYDE PARK, shall carry or wear under their ILL., LAWS AND clothes, or concealed about their 15 ORDINANCES person, any pistol, revolver, slung- ch. 27, § 39 shot, knuckles, bowie-knife, dirk- (1876) knife, dirk, dagger, or any other dangerous or deadly weapon, except 68 KNIFE RIGHTS, INC. V. BONTA

by written permission of the Captain of Police.

No person shall, within the limits of the city, wear under his clothes, or concealed about his person, any pistol, revolver, slung-shot, cross- knuckles, knuckles of lead, brass or other metal, or any bowie-knife, Sioux City, razor, billy, dirk, dirk-knife, or Iowa, dagger, or any knife resembling a Ordinance on dirk-knife or bowie knife, or other 16 Public Safety, dangerous weapon. Provided, that § 4 (June 16, this section shall not be so construed 1882) as to prevent any United States, State, county, or city officer or officers, or member of the city government, from carrying any such weapon as may be necessary in the proper discharge of his official duties.

For carrying or having on his or her LEAVENWORTH, person in a concealed manner, any KAN., CHARTER pistol, dirk, bowie knife, revolver, AND slung shot, billy, brass, lead or iron 17 ORDINANCES knuckles, or any other deadly No. 32, § 23, weapon within this city, a fine not approved Mar. less than three nor more than one 28, 1862 (1863) hundred dollars.

18 Act of Mar. 10, § 1. . . . That if any person shall 1854, ch. 1020 hereafter carry concealed any deadly KNIFE RIGHTS, INC. V. BONTA 69

§§ 1–2, 1853 weapons, other than an ordinary Ky. Acts 186, pocket knife, except as provided in 186 the next section, he shall be fined on the first conviction not less than fifty nor more than one hundred dollars, and on any subsequent conviction not less than one hundred nor more than five hundred dollars. § 2. That the carrying of concealed deadly weapons shall be legal in the following cases: 1. Where the person has reasonable grounds to believe his person, or the person of some of his family, or his property, is in danger from violence or crime. 2. Where sheriffs, constables, marshals, and policeman carry such weapons as are necessary to their protection in the efficient discharge of their duty. 3. Where persons are required by their business or occupation to travel during the night, the carrying concealed deadly weapons during such travel.

That from and after the passage of this act, any person who shall be Act of Mar. 25, found with any concealed weapon, 1813, § 1, 1812 such as a dirk, dagger, knife, pistol, 19 La. Acts 172, or any other deadly weapon 172–75 concealed in his bosom, coat or in any other place about him that do not appear in full open view, any 70 KNIFE RIGHTS, INC. V. BONTA

person so offending, shall on conviction thereof before any justice of the peace, be subject to pay a fine ....

That whoever shall carry a weapon or weapons concealed on or about his person, such as pistols, bowie knife, dirk, or any other dangerous weapon, shall be liable to prosecution by indictment or presentment, and on conviction for the first offence shall be fined not less than two hundred and fifty Act of Mar. 14, dollars nor more than five hundred 1855, No. 120, 20 dollars, or imprisonment for one § 115, 1855 La. month; and for the second offence Acts 130, 148 not less than five hundred dollars nor more than one thousand dollars, or imprisonment in the parish prison at the discretion of the court, not to exceed three months, and that it shall be the duty of the Judges of the District Courts in this State to charge the Grand Jury specially as to this section.

It shall not be lawful for any person Act of Feb. 26, to carry concealed, in Annapolis, 1872, ch. 42 whether a resident thereof or not, 21 § 1, 1872 Md. any pistol, dirk-knife, bowie-knife, Laws 56, 57 sling-shot, billy, razor, brass, iron or other metal knuckles, or any other KNIFE RIGHTS, INC. V. BONTA 71

deadly weapon, under a penalty of a fine of not less than three, nor more than ten dollars in each case, in the discretion of the Justice of the Peace, before whom the same may be tried, to be collected . . . .

That it shall be unlawful for any person, except officers of the peace and night-watches legitimately Act of May 31, employed as such, to go armed with 1887, No. 129, a dirk, dagger, sword, pistol, air-gun, 22 § 1, 1887 Mich. stiletto, metallic knuckles, pocket- Pub. Acts 144, billie, sand-bag, skull-cracker, 144 slung-shot, razor, or other offensive and dangerous weapon or instrument concealed upon his person.

And all persons who shall carry concealed on or about their persons, any pistol, revolver, bowie knife, dirk, slung shot, billie, sand bag, false knuckles, or other dangerous Act of Mar. 28, weapon, . . . shall be deemed a 1891, No. 257, disorderly person, and upon 23 § 15, 1891 conviction thereof may be punished Mich. Pub. by a fine not exceeding one hundred Acts 388, 409 dollars and the costs of prosecution, and in imposition of any such fine and costs the court may make a further sentence that in default of payment, such offender be imprisoned. . . . 72 KNIFE RIGHTS, INC. V. BONTA

And all persons who shall carry, concealed on or about their persons, any pistol, revolver, bowie knife, dirk, slung shot, billie, sand bag, false knuckles or other dangerous Act of June 2, weapon; . . . shall be deemed a 1897, No. 465, disorderly person, and upon 24 § 15, 1897 conviction thereof may be punished Mich. Pub. by a fine not exceeding one hundred Acts 962, 1030 dollars and the costs of prosecution; and in the imposition of any such fine and costs, the court may make a further sentence that in default of the payment thereof, such offender be imprisoned . . . .

It shall be unlawful for any person, within the limits of the city of St. SAINT PAUL, Paul, to carry or wear under his MINN., clothes, or concealed about his MUNICIPAL person, any pistol or pistols, dirk, CODE art. 18, 25 dagger, sword, slungshot, cross- § 308, passed knuckles, or knuckles of lead, brass Jan. 17, or other metal, bowie-knife, dirk- 1882(1884) knife or razor, or any other dangerous or deadly weapon.

That any person not being threatened Act of Feb. 28, with, or having good and sufficient 1878, ch. 46, reason to apprehend an attack, or 26 § 1, 1878 Miss. traveling (not being a tramp) or Laws 175, 175 setting out on a journey, or peace officers, or deputies in discharge of KNIFE RIGHTS, INC. V. BONTA 73

their duties, who carries concealed, in whole or in part, any bowie knife, pistol, brass knuckles, slung shot or other deadly weapon of like kind or description, shall be deemed guilty of a misdemeanor, and on conviction, shall be punished for the first offense by a fine of not less than five dollars nor more than one hundred dollars . . . .

Any person who carries concealed, in whole or in part, any bowie knife, dirk knife, butcher knife, pistol, brass or metallic knuckles, sling Act of Mar. 11, shot, sword or other deadly weapon 1896, ch. 104, of like kind or description, shall be 27 § 1, 1896 Miss. guilty of a misdemeanor, and on Laws 109, 109– conviction, shall be punished by a 10 fine of not less than ten dollars nor more than one hundred dollars, and be imprisoned in the county jail not less than one month nor more than three months.

Any person who carries concealed, in whole or in part, any bowie knife, Act of Feb. 11, dirk knife, butcher knife, pistol, 1898, ch. 68, brass or metallic knuckles, slingshot, 28 § 1, 1898 Miss. sword or other deadly weapon of Laws 88, 88 like kind or description, shall be guilty of a misdemeanor, and on conviction shall be punished, unless 74 KNIFE RIGHTS, INC. V. BONTA

the jury shall say in its verdict there shall be no imprisonment, by a fine of not less than twenty-five dollars ($25) nor more than one hundred dollars ($100), or by imprisonment in the county jail not more than three months, or both, in the discretion of the court; but the jury may return a verdict that there shall be no imprisonment, and in such case the court shall impose a fine only.

It shall be unlawful for any person within [Lincoln] to carry about the person any concealed pistol, revolver, dirk, bowie knife, billy, LINCOLN, NEB., sling-shot, metal knuckles, or other ORDINANCES dangerous or deadly weapons of any 29 AND RULES, ch. kind, excepting only officers of the 14, art. 16, law in the discharge of their duties; § 782 (1895) and any person so offending shall be deemed guilty of a misdemeanor, and on conviction thereof shall be subject to the penalty hereinafter provided.

Every person, not being a peace Act of Feb. 27, officer or traveler, who shall wear or 1867, ch. 30 carry any dirk, pistol, sword in a 30 cane, slung-shot, or other dangerous § 1, 1867 Nev. Stat. 66, 66 or deadly weapon concealed, shall, upon conviction thereof before any Court of competent jurisdiction, be KNIFE RIGHTS, INC. V. BONTA 75

deemed guilty of misdemeanor, and shall be imprisoned in the County Jail for not less than thirty, nor more than ninety days, or fined in any sum not less than twenty, nor more than two hundred dollars.

Whereas there hath been great complaint by the Inhabitants of this Province, that several Persons wearing Swords, Daggers, Pistols, Dirks, Stilladoes, Skeines, or any other unusual or unlawful Weapons, by reason of which several Persons in this Province, receive great Act of Apr. 19, abuses, and put in great Fear and 1686, ch. 9, Quarrels, and Challenges made, to reprinted in the great abuse of the Inhabitants of The Grants, this Province . . . . AND BE IT Concessions, FURTHER ENACTED by the 31 and Original Authority aforesaid, that no Person Constitutions of or Persons after Publication hereof, the Province of shall presume privately to wear any New Jersey 289 Pocket Pistol, Skeines, Stilladers, (1758) Daggers or Dirks, or other unusual or unlawful Weapons within this Province, upon Penalty for the first Offence Five Pounds, and to be committed by any Justice of the Peace, his Warrant before whom Proof thereof shall be made, who is here by authorized to enquire of and proceed in the same, and keep in 76 KNIFE RIGHTS, INC. V. BONTA

Custody till he hath paid the said Five Pounds, one half to the publick Treasury for the use of this Province, and the other half to the Informer: And if such Person shall again Offend against this Law, he shall be in like manner committed (upon proof thereof before any Justice of the Peace) to the common Gaol, there to remain till the next Sessions, and upon conviction thereof by Verdict of twelve Men, shall receive Judgment to be in Prison six Month, and pay Ten Pounds for the use aforesaid. AND BE IT FURTHER ENACTED by the Authority aforesaid, that no Planter shall Ride or go Armed with Sword, Pistol or Dagger, upon the penalty of five Pounds, to be levied as aforesaid, excepting all Officers, Civil and Military, and Soldiers while in actual Service, as also all Strangers, Travelling upon their lawful Occasions thro’ this Province, behaving themselves peaceably.

Jersey City, That it shall not be lawful for any N.J., Ordinance person or persons (excepting 32 to Prevent the policemen and private watchmen Carry of when on duty), within the corporate Loaded or limits of Jersey City, to carry, have, Concealed or keep concealed on his or her KNIFE RIGHTS, INC. V. BONTA 77

Weapons § 1, person any instrument or weapon (June 20, 1873) commonly known as a slung-shot, reprinted in billy, sand-club or metal knuckles, Ordinances of and any dirk or dagger (not Jersey City 41 contained as a blade of a pocket- (1874) knife), and loaded pistol or other dangerous weapon, under the penalty of not exceeding twenty dollars for each offense.

Jersey City, That with the exceptions made in the N.J., Ordinance second section of this ordinance, no in Relation to person shall, within the limits of the Carrying of Jersey City, carry, have or keep on Dangerous his or her person concealed, any 33 Weapons § 1, slung-shot, sand-club, metal (June 20, 1873) knuckles, dirk or dagger not reprinted in contained as a blade of a pocket Ordinances of knife, loaded pistol or other Jersey City 41 dangerous weapon. (1874)

Hoboken, N.J., That it shall not be lawful for any Ordinance to person or persons (excepting Prevent the policemen and private watchmen Carry of when on duty), within the corporate Loaded or limits of the city of Hoboken, to 34 Concealed carry, have or keep concealed on his Weapons or her person any instrument or § 1 (Oct. 17, weapon commonly known as slung 1885) shot, stilletto, billy, sand-club or reprinted in metal knuckles, and any dirk or Ordinances of dagger not contained as a blade of a 78 KNIFE RIGHTS, INC. V. BONTA

the City of pocket knife, and loaded pistol or Hoboken 240- other dangerous weapon, under the 41 (1892) penalty of not exceeding twenty dollars for each offense, provided nevertheless that this and the following section shall not apply to any person or persons who shall have made an application to and received a written permit therefor from the board of police commissioners on recommendation of the chief of police of said city of Hoboken, or in his absence from the acting chief of police of said city.

That each and every person is prohibited from carrying short arms, such as pistols, daggers, knives, and other deadly weapons, about their Act of Jan. 14, persons concealed, within the 1853, § 1, 1852 settlements, and any person who 35 N.M. Laws 67, violates the provisions of this act, 67 shall be fined in a sum not exceeding ten dollars, nor less than two dollars, or shall be imprisoned for a term not exceeding fifteen days nor less than five days.

If any person shall be found off of Act of Feb. 16, his own premises, within the county 36 1877, ch. 104, of Alleghany, having concealed § 1, 1876–1877 about his person a pistol, bowie- N.C. Sess. knife, dirk, dagger, slung-shot, KNIFE RIGHTS, INC. V. BONTA 79

Laws 162, 162- loaded cane, or brass or iron 63 knuckles, or other deadly weapon of a like kind, such person shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined or imprisoned at the discretion of the court.

That it shall be unlawful for any person in this state, except when Act of Mar. 5, upon his own premises, to carry 1879, ch. 127, concealed about his person any 37 § 1, 1879 N.C. pistol, bowie-knife, dirk, dagger, Sess. Laws 231 slung-shot, loaded cane, brass, iron or metallic knuckles, or other deadly weapon of like kind.

Every person who carries concealed about his person any description of TERR. DAK. fire-arms, being loaded or partly REV. PEN. 38 loaded or any sharp or dangerous CODE § 457 weapon such as is usually employed (1877) in attack or defense of the person, is guilty of a misdemeanor.

That whoever shall carry a weapon or weapons, concealed on or about Act of Mar. 18, his person, such as a pistol, bowie 1859, § 1, 1859 knife, dirk, or any other dangerous 39 Ohio Laws 56, weapon, shall be deemed guilty of a 56 misdemeanor, and on conviction of the first offense shall be fined not exceeding two hundred dollars, or 80 KNIFE RIGHTS, INC. V. BONTA

imprisoned in the county jail not more than thirty days; and for the second offense, not exceeding five hundred dollars, or imprisoned in the county jail not more than three months, or both, at the discretion of the court.

It shall be unlawful for any person to carry concealed about his person in any manner whatever, any revolver, pistol, or other firearm, or any knife Act of Feb. 18, (other than an ordinary pocket- 1885, § 1, 1885 40 knife), or any dirk or dagger, Or. Laws 33, slungshot or metal knuckles, or any 33 instrument by the use of which injury could be inflicted upon the person or property of any other person.

No person shall wear or carry in this state any dirk, bowie knife, butcher knife, dagger, razor, sword in cane, air gun, billy, brass or metal Act of May 3, knuckles, slung shot, pistol or fire 1893, ch. 1180, arms of any description, or other 41 § 1, 1893 R.I. weapons of like kind and Pub. Laws 231, description, concealed upon his 231-32 person: Provided, that officers or watchmen whose duties require them to make arrests or to keep and guard prisoners or property, together with the persons summoned by such KNIFE RIGHTS, INC. V. BONTA 81

officers to aid them in the discharge of such duties, while actually engaged in such duties, are exempted from the provisions of this act.

That any person carrying a pistol, dirk, dagger, slung shot, metal knuckles, razors, or other similar deadly weapon usually used for the infliction of personal injury, concealed about his person, shall be Act of Dec. 24, guilty of a misdemeanor, and, upon 1880, No. 362, 42 conviction thereof, before a Court of § 1, 1880 S.C. competent jurisdiction, shall forfeit Acts 447, 448 to the County the weapon so carried concealed and be fined in a sum not more than two hundred dollars, or imprisoned for not more than twelve months, or both, in the discretion of the Court.

Any person carrying a pistol, dirk, dagger, slingshot, metal knuckles, razor or other deadly weapon usually Act of Feb. 17, used for the infliction of personal 1897, No. 251, injury concealed about his person 43 shall be guilty of a misdemeanor, § 1, 1897 S.C. Acts 423, 423 and upon conviction thereof before a Court of competent jurisdiction shall forfeit to the County the weapon so carried concealed and be fined in a sum of not more than one hundred 82 KNIFE RIGHTS, INC. V. BONTA

dollars and not less than twenty dollars or be imprisoned not more than thirty nor less than ten days, in the discretion of the Court.

That if any person shall wear any Bowie knife, Arkansas tooth pick, or other knife or weapon that shall in form, shape or size resemble a Bowie knife or Arkansas toothpick under his clothes, or keep the same Act of Jan. 27, concealed about his person, such 1838, ch. 137, 44 person shall be guilty of a § 2, 1838 Tenn. misdemeanor, and upon conviction Acts 200 thereof shall be fined in a sum not less than two hundred dollars, nor more than five hundred dollars, and shall be imprisoned in the county jail not less than three months and not more than six months.

If a person carry about his person, Act of Mar. 6, hid from common observation, any 1882, ch. 219, pistol, dirk, bowie-knife, or any 45 1881–1882 Va. weapon of the like kind, he shall be Acts 233, 233 fined not more than fifty dollars, nor less than fifteen dollars.

Act of Feb. 22, If a person carry about his person, 1884, ch. 148 hid from common observation, any 46 § 1, 1883–1884 pistol, dirk, bowie-knife, razor, Va. Acts 180, slung-shot, or any weapon of the like 180 kind, he shall be fined not less than KNIFE RIGHTS, INC. V. BONTA 83

twenty dollars nor more than one hundred dollars . . . .

If a person carry about his person, hid from common observation, any pistol, dirk, bowie-knife, razor, slung-shot or any weapon of the like kind, he shall be fined not less than Act of Mar. 4, twenty dollars nor more than one 1896, ch. 745 hundred dollars, or be committed to 47 § 1, 1895–1896 jail not more than thirty days, or Va. Acts 826, both in the discretion of the court or 826 jury trying the case, and such pistol, dirk, bowie-knife, razor, slung-shot, or any weapon of the like kind shall be forfeited to the commonwealth and may be seized by an officer as forfeited.

If any person shall carry upon his person any concealed weapon, consisting of either a revolver, pistol, or other firearms, or any knife Act of Jan. 20, (other than an ordinary pocket knife) 1886, § 1, or any dirk or dagger, sling shot or 48 1885–1886 metal knuckles, or any instrument by Wash. Sess. the use of which injury could be Laws 81, 81-82 inflicted upon the person or property of any other person, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than twenty dollars, nor more than one hundred dollars, or 84 KNIFE RIGHTS, INC. V. BONTA

imprisonment in the county jail not more than thirty days, or by both fine and imprisonment, in the discretion of the court[.]

If any person shall go armed with a concealed dirk, dagger, sword, pistol, or pistols, revolver, slung- shot, brass knuckles, or other offensive and dangerous weapon, he shall, on conviction thereof, be adjudged guilty of a misdemeanor, and shall be punished by imprisonment in the state prison for a term of not more than two years, or by imprisonment in the county jail of the proper county not more than Act of Feb. 14, twelve months, or by fine not 1872, ch. 7, exceeding five hundred dollars, 49 1872 Wis. Sess. together with the costs of Laws 17, 17–18 prosecution, or by both said fine and costs and either of said imprisonments; and he may also be required to find sureties for keeping the peace and against the further violation of this act for a term not exceeding two years: provided, that so going armed shall not be deemed a violation of this act whenever it shall be made to appear that such person had reasonable cause to fear an assault or other injury or violence to his person, or to his family or KNIFE RIGHTS, INC. V. BONTA 85

property, or to any person under his immediate care or custody, or entitled to his protection or assistance, or if it be made to appear that his possession of such weapon was for a temporary purpose, and with harmless intent.

The common council . . . shall have authority by ordinances, resolutions or by-laws: . . . To regulate or Act of Apr. 10, prohibit the carrying or wearing by 1883, ch. any person under his clothes, or 183(6) § 3, concealed about his person, of any 50 1883 Wis. Sess. pistol or colt, or slung shot, or cross Laws 704, 713 knuckles, or knuckles of lead, brass (City of or other metal, or bowie knife, dirk Oshkosh) knife, or dirk or dagger, or any other dangerous or deadly weapon; and to provide for the confiscation or sale of such weapon.

The common council . . . shall have Act of Apr. 11, authority, by ordinances, resolutions, 1887, ch. by-laws or vote: . . . To regulate or 409(4), prohibit the carrying or wearing by § 36(53), 1887 any person under his clothes or 51 Wis. Sess. concealed about his person of any Laws 1284, pistol, slingshot, knuckles of lead, 1308 (City of brass or other metal, or bowie knife, Berlin) dirk knife, dagger, or other dangerous or deadly weapon; and to 86 KNIFE RIGHTS, INC. V. BONTA

provide for the confiscation and sale of such weapon. KNIFE RIGHTS, INC. V. BONTA 87

Appendix B

Laws that are cited by the panel and that governed territories and prohibited public carry. These laws appear in alphabetical order by territory. This list does not include any laws in Appendix A.

Number Law Text If any person within any settlement, town, village or city within this Territory shall carry on or about his person, saddle, or in his saddlebags, any Act of pistol, dirk, dagger, slung shot, sword- Mar. 18, cane, spear, brass knuckles, bowie knife, 1889, No. or any other kind of knife manufactured 1 13, § 1, or sold for purposes of offense or 1889 Ariz. defense, he shall be punished by a fine Sess. Laws of not less than twenty-five nor more 30, 30 than one hundred dollars; and in addition thereto, shall forfeit to the County in which his is convicted, the weapon or weapons so carried.

SECTION 1. That, from and after the Act of passage of this act, it shall be unlawful Feb. 2, for any person to carry concealed 1860, weapons on their persons, of any class 2 §§ 1–2, of pistols whatever, bowie knife N.M. (cuchillo de cinto), Arkansas toothpick, Laws 94, Spanish dagger, slung-shot, or any other 94–99 deadly weapon, of whatever class or description they may be, no matter by what name they may be known or 88 KNIFE RIGHTS, INC. V. BONTA

called, under the penalties and punishment which shall hereinafter be described. SEC. 2. Be it further enacted: That if any person shall carry about his person, either concealed or otherwise, any deadly weapon of the class and description mentioned in the preceding section, the person or persons who shall so offend, on conviction, which shall be by indictment in the district court, shall be fined in any sum not less than fifty dollars, nor more than one hundred dollars, at the discretion of the court trying the cause, on the first conviction under this act; and for the second conviction, the party convicted shall be imprisoned in the county jail for a term of not less than three months, nor more than one year, also at the discretion of the court trying the cause.

SECTION 1. From and after the passage Act of Jan. of this act it shall be unlawful for any 29, 1869, person to carry deadly weapons, either ch. 32, concealed or otherwise, on or about §§ 1–2, their persons within any of the 3 1868-1869 settlements of this Territory, except it be N.M. in the lawful defence of themselves, Laws 72, their families or their property, and the 72–73 same being then and there threatened with danger, or by order of legal authority, or on their own landed KNIFE RIGHTS, INC. V. BONTA 89

property, or in the execution of an order of court. Sec. 2. Deadly weapons, in the meaning of this act, shall be construed to mean all kinds and classes of pistols whether the same be a revolver, repeater, derringer, or any other kind or class of pistol; any and all kinds of bowie knives, daggers, poniards, butcher knives, dirk knives, and all such weapons with which cuts can be given, or by which wounds can be inflicted by thrusting, including sword canes and such sharp pointed canes with which deadly thrusts can be given, and all kinds of slung shots, and any other kinds of deadly weapon, by whatever name it may be called, by which a dangerous wound can be inflicted.

SECTION 1. That any person who shall hereafter carry a deadly weapon, either Act of concealed or otherwise, on or about the Feb. 18, settlements of this territory, except it be 1887, ch. in his or her residence, or on his or her 30, §§ 1, landed estate, and in the lawful defense 4 of his or her person, family or property, 8, 1886 N.M. the same being then and there threatened Laws 55, with danger, or except such carrying be 55, 57 done by legal authority, upon conviction thereof shall be punished by a fine of not less than fifty dollars, nor more than three hundred, or by imprisonment not 90 KNIFE RIGHTS, INC. V. BONTA

less than sixty days, nor more than six months, or by both such fine and imprisonment, in the discretion of the court or jury trying the same. SEC. 8. Deadly weapons, within the meaning of this act, shall be construed to mean all kinds and classes of pistols, whether the same be a revolver, repeater, derringer, or any kind or class of pistol or gun; any and all kinds of daggers, bowie knives, poniards, butcher knives, dirk knives, and all such weapons with which dangerous cuts can be given, or with which dangerous thrusts can be inflicted, including sword canes, and any kind of sharp pointed canes; as also slung shots, bludgeons or any other deadly weapons with which dangerous wounds can be inflicted.

(2294) § 19. Every person who carries upon his person, whether concealed or OKLA. not, or uses or attempts to use against STAT. PEN. another, any instrument or weapon of CODE the kind usually known as slung shot, or 5 §§ 2294– of any similar kind, is guilty of a felony. 95, 2432–- (2295) § 20. Every person who carries 33, 2438– concealed about his person and 39 (1890) description of firearms, being loaded or partly loaded, or any sharp or dangerous weapon, such as is usually employed in KNIFE RIGHTS, INC. V. BONTA 91

attack or defense of the person, is guilty of a misdemeanor. (2432) § 1. It shall be unlawful for any person in the Territory of Oklahoma to carry concealed on or about his person, saddle, or saddle bags, any pistol, revolver, bowie knife, dirk, dagger, slung-shot, sword cane, spear, metal knuckles, or any other kind of knife or instrument manufactured or sold for the purpose of defense except as in this article provided. (2433) § 2. It shall be unlawful for any person in the Territory of Oklahoma, to carry upon or about his person any pistol, revolver, bowie knife, dirk knife, loaded cane, billy, metal knuckles, or any other offensive or defensive weapon, except as in this article provided. (2438) § 7. It shall be unlawful for any person, except a peace officer, to carry into any church or religious assembly, any school room or other place where persons are assembled for public worship, for amusement, or for educational or scientific purposes, or into any circus, show or public exhibition of any kind, or into any ball room, or to any social party or social gathering, or to any election, or to any place where intoxicating liquors are 92 KNIFE RIGHTS, INC. V. BONTA

sold, or to any political convention, or to any other public assembly, any of the weapons designated in sections one and two of this article. (2439) § 8. It shall be unlawful for any person in this Territory to carry or wear any deadly weapons or dangerous instrument whatsoever, openly or secretly, with the intent or for the avowed purpose of injuring his fellow man.

(2404) § 1. It shall be unlawful for any person in the Territory of Oklahoma to carry concealed on or about his person, saddle, or saddle bags, any pistol, revolver, bowie knife, dirk, dagger, slung-shot, sword cane, spear, metal knuckles, or any other kind of knife or OKLA. instrument manufactured or sold for the STAT. PEN. purpose of defense except as in this CODE article provided. 6 §§ 2404– (2405) § 2. It shall be unlawful for any 05, 2410– person in the Territory of Oklahoma, to 11 (1893) carry upon or about his person any pistol, revolver, bowie knife, dirk knife, loaded cane, billy, metal knuckles, or any other offensive or defensive weapon, except as in this article provided. (2410) § 7. It shall be unlawful for any person, except a peace officer, to carry KNIFE RIGHTS, INC. V. BONTA 93

into any church or religious assembly, any school room or other place where persons are assembled for public worship, for amusement, or for educational or scientific purposes, or into any circus, show or public exhibition of any kind, or into any ball room, or to any social party or social gathering, or to any election, or to any place where intoxicating liquors are sold, or to any political convention, or to any other public assembly, any of the weapons designated in sections one and two of this article. (2411) § 8. It shall be unlawful for any person in this Territory to carry or wear any deadly weapons or dangerous instrument whatsoever, openly or secretly, with the intent or for the avowed purpose of injuring his fellow man. 94 KNIFE RIGHTS, INC. V. BONTA

Appendix C

Laws that are cited by the panel and that prohibit the carry of (1) weapons besides knives, (2) knives with an intent to harm, or (3) knives into sensitive places/on sensitive times. These laws appear in alphabetical order by jurisdiction. This list does not include any laws in Appendix A or B.

Number Law Text Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it shall not be lawful for any person or persons within the District of Columbia, to have concealed about their person any deadly or dangerous weapons, such as daggers, air-guns, pistols, bowie-knives, Act of July dirk knives or dirks, blackjacks, razors, 13, 1892, razor blades, sword canes, slung shot, ch. 159 brass or other metal knuckles. §§ 1–2, 27 1 Stat. 116, SEC. 2. That it shall not be lawful for 116–17 any person or persons within the District (District of of Columbia to carry openly any such Columbia) weapons as hereinbefore described with intent to unlawfully use the same, and any person or persons violating either of these sections shall be deemed guilty of a misdemeanor, and upon conviction thereof shall, for the first offense, forfeit and pay a fine or penalty of not less than fifty dollars nor more than five hundred dollars, of which one half shall be paid KNIFE RIGHTS, INC. V. BONTA 95

to any one giving information leading to such conviction, or be imprisoned in the jail of the District of Columbia not exceeding six months, or both such fine and imprisonment, in the discretion of the court[.]

SECTION 1. . . . That whoever shall have in his possession . . . any slung-shot or metallic knuckles, or other deadly weapon of like character, or any person in whose possession such weapons shall be found, shall be guilty of a misdemeanor, and upon conviction shall Act of be fined in any sum not less than ten Apr. 16, dollars ($10) nor more than two hundred 1881, §§ 1, dollars ($200). 2 4, 1881 Ill. § 4. Whoever shall carry a concealed Laws 73, weapon upon or about his person of the 73–74 character in this act specified, or razor as a weapon, or whoever, in a threatening or boisterous manner, shall display or flourish any deadly weapon, shall be guilty of a misdemeanor, and shall be fined in any sum not less than twenty-five dollars ($25) nor more than two hundred dollars ($200).

Act of That every person not being a traveler, Feb. 23, who shall wear or carry any dirk, pistol, 3 1859, ch. bowie-knife, dagger, sword in cane, or 79, § 1, any other dangerous or deadly weapon 1859 Ind. concealed, or who shall carry or wear 96 KNIFE RIGHTS, INC. V. BONTA

Acts 129, any such weapon openly, with the intent 129 or avowed purpose of injuring his fellow man, shall, upon conviction thereof, be fined in any sum not exceeding five hundred dollars.

That from and after the passage of this act, it shall not be lawful for any person in Kent, Queen Anne’s or Montgomery counties, to carry, on the days of election, secretly or otherwise, any gun, Act of pistol, dirk, dirk-knife, razor, billy or Apr. 6, bludgeon; and any person violating the 1874, ch. provisions of this act shall be deemed 4 250, § 1, guilty of a misdemeanor, and on 1874 Md. conviction thereof, before any justice of Laws 366, the peace in either of said counties, shall 366–67 be fined not less than five nor more than twenty dollars, and on refusal to pay said fine shall be committed by such justice of the peace to the jail of the county, until the same is paid.

Every person not being a conservator of Act of the peace entitled or required to carry Apr. 7, such weapon as a part of his official 1886, ch. equipment, who shall wear or carry any 5 375, § 1, pistol, dirk-knife, bowie-knife, slung- 1886 Md. shot, billy, sand-club, metal knuckles, Laws 602, razor or any other dangerous or deadly 602 weapon of any kind whatsoever, (penknives excepted) concealed upon or about his person, and every person who KNIFE RIGHTS, INC. V. BONTA 97

shall carry or wear any such weapon openly with the intent or purpose of injuring any person, shall, upon conviction thereof, be fined not more than five hundred dollars or be imprisoned not more than six months in jail or the House of Correction.

Every person in said city of Baltimore not being a conservator of the peace entitled or required to carry such weapons as a part of his official equipment, who shall wear or carry any pistol, dirk-knife, bowie-knife, slung- shot, billey, sand-club, metal knuckles, razor or any other dangerous or deadly Act of weapon of any kind whatsoever, (pen- Apr. 8, knives excepted,) concealed upon or 1890, ch. about his person; and every person who 6 534, § 1, shall carry or wear such weapons openly 1890 Md. with the intent or purpose of injuring Laws 606, any person, shall upon a conviction 606–07 thereof be fined not more than five hundred dollars, and be imprisoned not more than six months in jail or in the house of correction; that this act shall not release or discharge any person or persons already offending against the general law in such cases made and provided, but any such person or persons may be proceeded against, prosecuted and punished under the 98 KNIFE RIGHTS, INC. V. BONTA

general law of this State as if this act had not been passed.

Every person not being a conservator of the peace entitled or required to carry such weapon as a part of his official equipment, and not carrying such weapon as a reasonable precaution against apprehended danger, who shall wear or carry any pistol, dirk knife, bowie knife, slung shot, billy, sand club, metal knuckles, razor or any other dangerous or deadly weapon of any kind whatsoever (penknives excepted,) Act of concealed upon or about his person, and Apr. 6, every person who shall carry or wear 1894, ch. any such weapon openly, with the intent 7 547, § 30, or purpose of injuring any person in any 1894 Md. unlawful manner, and not for any proper Laws 833, purpose of self-protection, shall, upon 834. conviction thereof, be fined not more than one thousand dollars, or be imprisoned not more than two years in jail or in the house of correction; and the court or jury before whom any such case may be tried shall in all cases have the right to judge of the reasonableness of the carrying of any such weapon, and of the proper occasion therefor, upon satisfactory proof; and in case, upon conviction of any offender, the court, in view of the evidence, shall be of the opinion that such weapon was carried KNIFE RIGHTS, INC. V. BONTA 99

with the deliberate purpose of inflicting grievous and unlawful injury to the life or person of another, it shall in that case be the duty of the court to impose the highest sentence of imprisonment hereinbefore prescribed.

SEC. 334. Carrying, using, etc., certain weapons.— A person who attempts to use against another, or who, with intent so to use, carries, conceals or possesses any instrument or weapon of the kind commonly known as slung- shot, sand-club or metal knuckles, or a dagger, dirk, knife, pistol or other MINN. firearm, or any dangerous weapon, is PEN. CODE guilty of a misdemeanor. 8 §§ 334–35 (1886) SEC. 335. Possession, presumptive evidence.— The possession by any person other than a public officer, of any of the weapons specified in the last section, concealed or furtively carried on the person, is presumptive evidence of carrying, or concealing, or possessing, with intent to use the same in violation of that section.

MINN. SEC. 6290. Carrying, using, etc., STAT. certain weapons.— A person who 9 §§ 6290, attempts to use against another, or who, 6292 with intent so to use, carries, conceals or (1891) possesses any instrument or weapon of the kind commonly known as slung- 100 KNIFE RIGHTS, INC. V. BONTA

shot, sand-club or metal knuckles, or a dagger, dirk, knife, pistol or other firearm, or any dangerous weapon, is guilty of a misdemeanor. SEC. 6291. Same—Possession, presumptive evidence.— The possession by any person other than a public officer, of any of the weapons specified in the last section, concealed or furtively carried on the person, is presumptive evidence of carrying, or concealing, or possessing, with intent to use the same in violation of that section.

If any person shall carry concealed upon or about his person any deadly or dangerous weapon, or shall go into any church or place where people have assembled for religious worship, or into any school-room or place where people are assembled for educational, literary MO. REV. or social purposes, or to any election STAT. precinct on any election day, or into any 10 court-room during the sitting of court, or § 1862 (1899) into any other public assemblage or persons met for any lawful purpose other than for militia drill, or meetings called under the militia law of this state, having upon or about his person any kind of fire-arms, bowie-knife, dirk, dagger, slung-shot or other deadly weapon, or shall, in the presence of one or more persons, exhibit any such KNIFE RIGHTS, INC. V. BONTA 101

weapon in a rude, angry or threatening manner, or shall have or carry any such weapon upon or about his person when intoxicated, or under the influence of intoxicating drinks, . . . he shall, upon conviction, be punished by a fine of not less than fifty nor more than two hundred dollar, or by imprisonment in the county jail not less than five days nor more than six months, or by both such fine and imprisonment.

SECTION 1. Every person who shall within this State use, or attempt to use or with intent to use against any other person, shall knowingly and secretly conceal on his person, or with like intent shall willfully and furtively possess any instrument or weapon of the kind Act of commonly known as slung-shot, billy, Apr. 20, sand club or metal knuckles, and any 1866, ch. dirk or dagger (not contained as a blade 11 716, §§ 1– of a pocket knife), or sword cane or air 2, 1866 gun, shall be deemed guilty of felony, N.Y. Laws and on conviction thereof be punished 1523, 1523 by imprisonment in the State prison, or penitentiary or county jail, for a term not more than one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment. § 2. The having possession of any of the weapons mentioned in the first section of this act by any other than a public 102 KNIFE RIGHTS, INC. V. BONTA

officer, willfully and secretly concealed on the person or knowingly and furtively carried thereon, shall be presumptive evidence of so concealing and possessing or carrying the same with the intent to use the same in violation of the provisions of this act.

Any person who shall carry about his or her person any dirk, bowie knife, sword or spear cane, pistol, revolver, slung shot, jimmy, brass knuckles, or other deadly or unlawful weapon, or shall use SYRACUSE, any deadly or unlawful weapon, with N.Y., REV. intent to do bodily harm to any person, 12 CHARTER shall be subject to a fine of not less than ch. 27, § 7 twenty-five nor more than one hundred (1885) dollars, or to imprisonment in the penitentiary of the county for not less than thirty days nor longer than three months, or to both such fine and imprisonment.

A person who attempts to use against Act of another, or who, with intent so to use, Apr. 15, carries, conceals or possesses any 1889, ch. instrument or weapon of the kind 13 140, § 2, commonly known as the slungshot, 1889 N.Y. billy, sand-club or metal knuckles, or a Laws 167, dagger, dirk or dangerous knife, is guilty 167 of a felony. Any person under the age of eighteen years, who shall have, carry or have in his possession in any public KNIFE RIGHTS, INC. V. BONTA 103

street, highway or place in any city or incorporated village in this State, without a written license from a police magistrate of such city or incorporated village, any pistol or other firearm of any kind, shall be guilty of a misdemeanor. This section shall not apply to the regular and ordinary transportation of firearms as merchandise, or for use without the city or village limits.

2 Carrying, using, etc., certain weapons. A person who attempts to use against another, or who, with intent so to use, carries, conceals or possesses any instrument or weapon of the kind commonly known as the slungshot, billy, sand-club or metal knuckles, or a N.Y. REV. dagger, dirk or dangerous knife, is guilty STAT., of a felony. Any person under the age 14 Weapons of eighteen years, who shall have, carry §§ 2–3 or have in his possession in any public (1890) street, highway or place in any city or incorporated village in this State, without a written license from a police magistrate of such city or incorporated village, any pistol or other firearm of any kind, shall be guilty of a misdemeanor. This section shall not apply to the regular and ordinary transportation of firearms as 104 KNIFE RIGHTS, INC. V. BONTA

merchandise, or for use without the city or village. 3 Possession, presumptive evidence. The possession, by any person other than a public officer, of any of the weapons specified in the last section, concealed or furtively carried on the person, is presumptive evidence of carrying, or concealing, or possessing, with intent to use the same in violation of that section.

Any person who shall, within this State, Act of hereafter carry, or be found in the Nov. 12, possession of, use or attempt to use, as 1849, No. against any other person, any 36 § 2, instrument, or weapon, of the kind 15 1849 Vt. usually known as slung shot, or of any Acts & similar kinds, shall be deemed guilty of Resolves felony, and be punished therefor by 26, 26 imprisonment in the State prison for a term not exceeding five years. KNIFE RIGHTS, INC. V. BONTA 105

Appendix D

Laws that are cited by the panel and that ban the public carry of knives.

Number Law Text That any person who shall wear or carry any pistol of any kind whatever, or any dirk, butcher or bowie knife, or a sword or a spear in a cane, brass or metal knucks, or razor, as a weapon, shall be adjudged guilty of a misdemeanor, and upon conviction thereof, in the county in which said offense shall have been committed, shall be fined in any sum not less than twenty-five nor more than Act of Feb. one hundred dollars, to be recovered by 16, 1875, presentment or indictment in the Circuit § 1, 1874– Court, or before any Justice of the 1 1875 Ark. Peace of the county wherein such Acts 156, offense shall have been committed; 156 Provided, That nothing herein contained shall be so construed as to prohibit any person wearing or carrying any weapon aforesaid on his own premises, or to prohibit persons traveling through the country, carrying such weapons while on a journey with their baggage, or to prohibit any officer of the law wearing or carrying such weapons when engaged in the discharge of his official duties, or any person summoned by any such officer to assist in the execution of 106 KNIFE RIGHTS, INC. V. BONTA

any legal process, or any private person legally authorized to execute any legal process to him directed.

That any person who shall wear or carry, in any manner whatever, as a weapon, any dirk or bowie knife, or a sword, or a spear in a cane, brass or metal knucks, razor, or any pistol of any kind whatever, except such pistols as are used in the army or navy of the United States, shall be guilty of a Act of Apr. misdemeanor; Provided, That officers, 1, 1881, whose duties require them to make ch. 96, § 1, 2 arrests, or to keep and guard prisoners, 1881 Ark. together with the persons summoned by Acts 191, such officers, to aid them in the 191 discharge of such duties, while actually engaged in such duties, are exempted from the provisions of this act. Provided, further, That nothing in this act be so construed as to prohibit any person from carrying any weapon when upon a journey, or upon his own premises.

[I]t shall not be lawful for any merchant, or vender of wares or Act of Dec. merchandize in this State, or any other 3 25, 1837, person or persons whatsoever, to sell, or § 1, 1837 offer to sell, or to keep, or to have about their person or elsewhere, any of the hereinafter described weapons, to wit: KNIFE RIGHTS, INC. V. BONTA 107

Ga. Acts Bowie, or any other kinds of knives, 90, 90 8 manufactured and sold for the purpose of wearing, or carrying the same as arms of offence or defence, pistols, dirks, sword canes, spears, &c., shall also be contemplated in this act, save such pistols as are known and used as horseman’s pistols, &c.

That it shall be, and it is hereby declared to be unlawful for any person to carry, openly or concealed, any musket, rifle, shot gun, pistol, sabre, sword, bowie knife, dirk, sword cane, NEBRASKA billy, slung shot, brass or other metallic CITY, knuckles, or any other dangerous or NEB., deadly weapons, within the corporate 4 Ordinance limits of Nebraska City, Neb.; No. 7, Provided, that nothing herein contained § 136, shall prevent the carrying of such (1872) weapon by a civil or military officer, or by a soldier in the discharge of his duty, nor by any other person for mere purposes of transportation from one place to another.

Act of Apr. That any person who shall carry any 5 12, 1873, pistol, dirk-knife, slung-shot or deadly No. 810, weapon within the city limits of 1873 Pa. Harrisburg, except police officers, shall

8 As Bruen discusses, this statute was held to be unconstitutional to the extent the statute banned “bearing arms openly.” Bruen, 597 U.S. at 54 (citing Nunn v. State, 1 Ga. 243, 251 (1846)). 108 KNIFE RIGHTS, INC. V. BONTA

Laws 735, be deemed guilty of misdemeanor, and 735–36 being convicted thereof, shall be (City of sentenced to undergo an imprisonment Harrisburg) or be fined in any sum of not less than fifty dollars, or both, at the discretion of the court, and in case of non payment of the fine so imposed, shall be imprisoned for a period of not less than three months, and be required to give security for future good behavior.

[I]t shall not be lawful for any person to carry, publicly or privately, any dirk, Act of razor concealed about his person, sword Mar. 27, cane, loaded cane, slung-shot or brass 1879, ch. knucks, spanish stiletto, belt or pocket 6 186, § 1, pistol, revolver, or any kind of pistol, 1879 Tenn. except the army or navy pistol, usually Pub. Acts used in warfare, which shall be carried 231, 231 openly in the hand, or loaded cane, slung-shot, brass knucks[.]

SECTION 1. Be it enacted by the Legislature of the State of Texas, That Act of Apr. any person carrying on or about his 12, 1871, person, saddle, or in his saddle bags, ch. 34, any pistol, dirk, dagger, slung-shot, 7 §§ 1-2, sword-cane, spear, brass-knuckles, 1871 Tex. bowie-knife, or any other kind of knife Gen. Laws manufactured or sold for the purposes 25, 25 of offense or defense, unless he has reasonable grounds for fearing an unlawful attack on his person, and that KNIFE RIGHTS, INC. V. BONTA 109

such ground of attack shall be immediate and pressing; or unless having or carrying the same on or about his person for the lawful defense of the State, as a militiaman in actual service, or as a peace officer or policeman, shall be guilty of a misdemeanor, and on conviction thereof shall, for the first offense, be punished by fine of not less then than twenty-five nor more than one hundred dollars, and shall forfeit to the county the weapon or weapons so found on or about his person; and for every subsequent offense may, in addition to such fine and forfeiture, be imprisoned in the county jail for a term not exceeding sixty days; and in every case of fine under this section the fines imposed and collected shall go into the treasury of the county in which they may have been imposed; provided, that this section shall not be so construed as to prohibit any person from keeping or bearing arms on his or her own premises, or at his or her own place of business, nor to prohibit sheriffs or other revenue officers, and other civil officers, from keeping or bearing arms while engaged in the discharge of their official duties, nor to prohibit persons traveling in the State from keeping or carrying arms with their baggage; provided further, that members of the 110 KNIFE RIGHTS, INC. V. BONTA

Legislature shall not be included under the term “civil officers” as used in this act. SEC. 2. Any person charged under the first section of this act, who may offer to prove, by way of defense, that he was in danger of an attack on his person, or unlawful interference with his property, shall be required to show that such danger was immediate and pressing, and was of such a nature as to alarm a person of ordinary courage; and that the weapon so carried was borne openly and not concealed beneath the clothing; and if it shall appear that this danger had its origin in a difficulty first commenced by the accused, it shall not be considered as a legal defense.

If a person carry about his person any revolver or other pistol, dirk, bowie knife, razor, slung shot, billy, metalic or Act of other false knuckles, or any other Mar. 24, dangerous or deadly weapon of like 1882, ch. kind or character, he shall be guilty of a 135, § 1, misdemeanor, and fined not less that 8 1882 W. twenty-five nor more than two hundred Va. Acts dollars, and may, at the discretion of the 421, 421– court, be confined in jail not less than 22 one, nor more than twelve months;. . . but nothing herein contained shall be so construed as to prevent any person from keeping or carrying about his dwelling KNIFE RIGHTS, INC. V. BONTA 111

house or premises any such revolver or other pistol, or from carrying the same from the place of purchase to his dwelling house, or from his dwelling house to any place where repairing is done, to have it repaired, and back again. And if upon the trial of an indictment for carrying any such pistol, dirk, razor or bowie knife, the defendant shall prove to the satisfaction of the jury that he is a quiet and peaceable citizen, of good character and standing in the community in which he lives, and at the time he was found with such pistol, dirk, razor or bowie knife, as charged in the indictment, he had good cause to believe and did believe that he was in danger of death or great bodily harm at the hands of another person, and that he was, in good faith, carrying such weapon for self defense and for no other purpose, the jury shall find him not guilty. But nothing in this section contained shall be so construed as to prevent any officer charged with the execution of the laws of the state from carrying a revolver or other pistol, dirk or bowie knife. 112 KNIFE RIGHTS, INC. V. BONTA

Appendix E

Laws cited by Dr. Spitzer for the proposition that “15 states banned all carrying of Bowie knives.”

Number Law Text Response If any person within any This law settlement, town, village governed a or city within this territory and Territory shall carry on is addressed or about his person, in Appendix saddle, or in his B. saddlebags, any pistol, dirk, dagger, slung shot, sword-cane, spear, brass knuckles, bowie knife, Act of Mar. or any other kind of 18, 1889, No. knife manufactured or 1 13, § 1, 1889 sold for purposes of Ariz. Sess. offense or defense, he Laws 30, 30 shall be punished by a fine of not less than twenty-five nor more than one hundred dollars; and in addition thereto, shall forfeit to the County in which his is convicted, the weapon or weapons so carried. KNIFE RIGHTS, INC. V. BONTA 113

That any person who This statute is shall wear or carry, in addressed in any manner whatever, Appendix D. as a weapon, any dirk or bowie knife, or a sword, or a spear in a cane, brass or metal knucks, razor, or any pistol of any kind whatever, except such pistols as are used in the army or navy of the United States, shall be guilty of Act of Apr. a misdemeanor; 1, 1881, ch. Provided, That officers 2 96, § 1, 1881 whose duties require Ark. Acts them to make arrests, or 191, 191 to keep and guard prisoners, together with the persons summoned by such officers, to aid them in the discharge of such duties, while actually engaged in such duties, are exempted from the provisions of this act. Provided, further, That nothing in this act be so construed as to prohibit any person from carrying any weapon 114 KNIFE RIGHTS, INC. V. BONTA

when upon a journey, or upon his own premises.

No person, unless Dr. Spitzer is authorized so to do by mistaken. As the chief of police of a he conceded city, mayor of a town or in deposition, the sheriff of a county, this statute COLO. STAT. shall use or carry banned 3 ch. 35 § 1830 concealed upon his concealed (1911) 9 person any fire arms, as carry but not defined by law, nor any open carry. pistol, revolver, bowie See 10-ER- knife, dagger, sling 2552. shot, brass knuckles, or other deadly weapon.

Any person not This law authorized by law, who governed a Act of May shall carry, or be found territory. 15, 1852, § 1, armed with, any bowie- Hawaii did 4 1852 Haw. knife, sword-cane, not become a Sess. Laws pistol, air-gun, slung- state until 19, 19 shot or other deadly 1959. weapon, shall be liable to a fine of no more than Thirty, and no less

9 Dr. Spitzer cites Colo. Rev. Stat 1774, Carrying Concealed Weapons— Penalty—Search Without Warrant—Jurisdiction of Justice, § 248 (1881). See 10-ER-2344. We are unable to verify the existence of this law. The text he provides for this citation matches with COLO. STAT. ch. 35 § 1830 (1911), and so we assume that he meant to cite this provision. KNIFE RIGHTS, INC. V. BONTA 115

than Ten Dollars, or in default of payment of such fine, to imprisonment at hard labor, for a term not exceeding two months and no less than fifteen days, upon conviction of such offense before any District Magistrate, unless good cause be shown for having such dangerous weapons; and any such person may be immediately arrested without warrant by the Marshal or any Sheriff, Constable or other officer or person and be lodged in prison until he can be taken before such Magistrate.

Any person not This law authorized by law, who governed a Act of Mar. shall carry, or be found territory. 19, 1913, No. armed with any bowie- Hawaii did 23, § 1, 1913 knife, sword-cane, not become a Haw. Sess. pistol, air-gun, slung- state until Laws 26, 26 shot, or other deadly 1959. This weapon, shall be liable law was also to a fine of not more enacted than Two Hundred and decades after 116 KNIFE RIGHTS, INC. V. BONTA

Fifty Dollars and not the 14th less than Ten Dollars, or Amendment’s in default of payment of ratification. such fine, to imprisonment for a term not exceeding one year, nor less than three months, upon conviction for such offense, unless good cause be shown for having such dangerous weapon; and any such person may be immediately arrested without warrant by the high sheriff, or any sheriff, policeman, or other officer or person.

Every person not being Dr. Spitzer is a sheriff, deputy sheriff, mistaken. As BOISE CITY, constable or other he conceded IDAHO, police officer, who shall in deposition, CHARTER carry or wear within the this city AND REV. incorporated limits of ordinance 5 ORDINANCES Boise City, Idaho, any banned ch. 1, § 36, bowie knife, dirk knife, concealed approved pistol or sword in cane, carry but not May 1, 1879 slung-shot, metallic open carry. (1894) knuckles, or other See 10-ER- dangerous or deadly 2553. This weapons, concealed, ordinance is KNIFE RIGHTS, INC. V. BONTA 117

unless such persons be addressed in traveling or setting out Appendix A. on a journey, shall, upon conviction thereof before the city magistrate of said Boise City, be fined in any sum not exceeding twenty-five dollars for each offense, or imprisoned in the city jail for not more than twenty days, or by both such fine and imprisonment.

That every person not This statute being a traveler, who banned shall wear or carry any carrying with dirk, pistol, bowie- intent to harm knife, dagger, sword in and is cane, or any other addressed in Act of Feb. dangerous or deadly Appendix C. 23, 1859, ch. weapon concealed, or 6 79, § 1, 1859 who shall carry or wear Ind. Acts any such weapon 129, 129 openly, with the intent or avowed purpose of injuring his fellow man, shall, upon conviction thereof, be fined in any sum not exceeding five hundred dollars. 118 KNIFE RIGHTS, INC. V. BONTA

That it shall be unlawful This statute for any person to carry banned the any gun, pistol, bowie carrying of knife or other dangerous bowie knives weapon, concealed or on election unconcealed, on any days and is day of election during addressed in the hours the polls are Appendix C. open, or on any day of registration or revision of registration, within a distance of one-half mile of any place of Act of Mar. registration or revision 16, 1870, No. of registration; any 100, § 73, person violating the 7 provisions of this 1870 La. Acts 145, section shall be deemed 159 guilty of a misdemeanor, and on conviction shall be punished by a fine of not less than one hundred dollars, and by imprisonment in the parish jail for not less than one month; provided, that the provisions of this section shall not apply to any commissioner or officer of the election or supervisor or assistant KNIFE RIGHTS, INC. V. BONTA 119

supervisor of registration, police officer or other person authorized to preserve the peace on days of registration or election.

If any person shall carry This city concealed upon or about ordinance his person a dangerous banned or deadly weapon of concealed any kind or description, carry, public or shall go into any carry in church or place where sensitive people have assembled places, and for religious worship, or brandishing. into any school room or The JOPLIN, MO., place where people are ordinance JOPLIN CODE, assembled for was also 8 educational, political, enacted art. 67, § 1201 literary or social decades after (1917) purposes, or to any the 14th election precinct on any Amendment’s election day, or into any ratification. court room during the sitting of court, or into any other public assemblage of persons met for any lawful purpose other than for militia drill, or meetings called under militia law of this state, having 120 KNIFE RIGHTS, INC. V. BONTA

upon or about his person, concealed or exposed, any kind of firearms, bowie knife, spring-back knife, razor, knuckles, billy, sword cane, dirk, dagger, slung shot or other similar deadly weapons, or shall, in the presence of one or more persons, exhibit any such weapon in a rude, angry or threatening manner, or shall have any such weapons in his possession when intoxicated, or directly or indirectly shall sell or deliver, loan or barter, to any minor any such weapon, without the consent of the parent or guardian of such minor, he shall be deemed guilty of a misdemeanor.

Act of Apr. Any person, while in This statute 3, 1923, § 17, charge of, or a banned public 1923 Mo. passenger thereon, who carry in Laws 236, shall carry on his sensitive 241–42 person, or in, on, or places. This KNIFE RIGHTS, INC. V. BONTA 121

about, any wagon, statute was buggy, automobile, also enacted boat, aeroplane, or other decades after conveyance or vehicle the 14th whatsoever, in, or upon Amendment’s which any intoxicating ratification. liquor, including wine or beer, is carried, conveyed or transported in violation of any provision of the laws of this state, any revolver, gun or other firearm, or explosive, any bowie knife, or other knife having a blade of more than two and one-half inches in length, any sling shot, brass knucks [sic], billy, club, or other dangerous weapon, article or thing which could, or might, be used in inflicting bodily injury, or death upon another, shall be deemed guilty of a felony, and, upon conviction thereof, shall be punished by the imprisonment in the state penitentiary for a term of not less than 122 KNIFE RIGHTS, INC. V. BONTA

two years. Provided, that this section shall not apply to any person or persons transporting intoxicating liquor for personal use and not for sale in violation of law. Provided, that this section shall not apply to any person or passenger who did not know that such vehicle or conveyance was being used for unlawful purposes.

That it shall be, and it is This hereby declared to be ordinance is unlawful for any person addressed in to carry, openly or Appendix D. concealed, any musket, This is a city rifle, shot gun, pistol, ordinance, NEBRASKA sabre, sword, bowie not a state CITY, NEB., knife, dirk, sword cane, statute. 9 Ordinance billy, slung shot, brass No. 7, § 136, or other metallic (1872) knuckles, or any other dangerous or deadly weapons, within the corporate limits of Nebraska City, Neb.; Provided, that nothing herein contained shall KNIFE RIGHTS, INC. V. BONTA 123

prevent the carrying of such weapon by a civil or military officer, or by a soldier in the discharge of his duty, nor by any other person for mere purposes of transportation from one place to another.

Any person who shall This carry about his or her ordinance person any dirk, bowie banned carry knife, sword or spear with intent to cane, pistol, revolver, harm and is slung shot, jimmy, brass addressed in knuckles, or other Appendix C. deadly or unlawful SYRACUSE, weapon, or shall use N.Y., REV. any deadly or unlawful 10 CHARTER weapon, with intent to ch. 27, § 7 do bodily harm to any (1885) person, shall be subject to a fine of not less than twenty-five nor more than one hundred dollars, or to imprisonment in the penitentiary of the county for not less than thirty days nor longer than three months, or to 124 KNIFE RIGHTS, INC. V. BONTA

both such fine and imprisonment.

§ 410. A person who This law attempts to use against banned the another, or who, with carrying of intent so to use, carries, bowie knives conceals or possesses with an intent any instrument or to harm. weapon of the kind commonly known as the slung-shot, billy, sand– club or metal knuckles, or a dagger, dirk or dangerous knife, is guilty of a felony. Any N.Y. STAT. person under the age of PEN. CODE eighteen years who §§ 410–411 shall have, carry or have (1885) in his possession in any public street, highway or place in any city of this state, without a written license from a police magistrate of such city, any pistol or other fire-arm of any kind, shall be guilty of a misdemeanor. This section shall not apply to the regular and ordinary transportation of fire-arms as KNIFE RIGHTS, INC. V. BONTA 125

merchandise, or for use without the city limits. § 411. The possession, by any person other than a public officer, of any of the weapons specified in the last section, concealed or furtively carried on the person, is presumptive evidence of carrying, or concealing, or possessing, with intent to use the same in violation of that section.

(2294) § 19: Every This law is person who carries upon addressed in his person, whether Appendix B. concealed or not, or uses or attempts to use OKLA. STAT. against another, any PEN. CODE instrument or weapon of §§ 2294–95, the kind usually known 11 2432–33, as slung shot, or of any 2438–39 similar kind, is guilty of (1890) a felony. (2295) § 20: Every person who carries concealed about his person and [sic] description of firearms, 126 KNIFE RIGHTS, INC. V. BONTA

being loaded or partly loaded, or any sharp or dangerous weapon, such as is usually employed in attack or defense of the person, is guilty of a misdemeanor. (2432) § 1. It shall be unlawful for any person in the Territory of Oklahoma to carry concealed on or about his person, saddle, or saddle bags, any pistol, revolver, bowie knife, dirk, dagger, slung-shot, sword cane, spear, metal knuckles, or any other kind of knife or instrument manufactured or sold for the purpose of defense except as in this article provided. (2433) § 2. It shall be unlawful for any person in the Territory of Oklahoma, to carry upon or about his person any pistol, revolver, bowie knife, dirk knife, loaded cane, KNIFE RIGHTS, INC. V. BONTA 127

billy, metal knuckles, or any other offensive or defensive weapon, except as in this article provided. (2438) § 7. It shall be unlawful for any person, except a peace officer, to carry into any church or religious assembly, any school room or other place where persons are assembled for public worship, for amusement, or for educational or scientific purposes, or into any circus, show or public exhibition of any kind, or into any ball room, or to any social party or social gathering, or to any election, or to any place where intoxicating liquors are sold, or to any political convention, or to any other public assembly, any of the weapons designated in sections one and two of this article. 128 KNIFE RIGHTS, INC. V. BONTA

(2439) § 8. It shall be unlawful for any person in this Territory to carry or wear any deadly weapons or dangerous instrument whatsoever, openly or secretly, with the intent or for the avowed purpose of injuring his fellow man.

That it shall not be This statute lawful for any qualified only banned voter or other person the carry of attending any election bowie knives in this State, or for any in sensitive person attending any places. fair, race course, or Act of Dec. other public assembly 1, 1869, § 2, of the people, to carry 1869–70 about his person, 12 Tenn. Pub. concealed or otherwise, Acts 108, any pistol, dirk, Bowie- 108 (1869) knife, Arkansas tooth- pick, or weapon in form, shape, or size resembling a Bowie- knife or Arkansas tooth- pick, or other deadly or dangerous weapon.

NASHVILLE, That every person found This is a city TENN., carrying a pistol, bowie- ordinance, KNIFE RIGHTS, INC. V. BONTA 129

ORDINANCES, knife, dirk-knife, slung- not a state ch. 108, § 1 shot, brass knucks or statute. (1881) other deadly weapon, shall be deemed guilty of a misdemeanor, and, upon conviction of such first offense, shall be fined from ten to fifty dollars, at the discretion of the court, but upon conviction of every such subsequent offense, shall be fined fifty dollars; Provided, however, That no ordinary pocket-knife and common walking- canes shall be construed to be deadly weapons.

Every person found This is a city carrying a pistol, bowie- ordinance, knife, dirk-knife, slung- not a state NASHVILLE, shot, brass knucks, or statute. TENN., other deadly weapon, ORDINANCES, shall be deemed guilty ch. 11, of a misdemeanor, and, § 738(742) upon conviction of such (1893) first offense, shall be fined from ten to fifty dollars, at the discretion of the court; but, upon conviction of every 130 KNIFE RIGHTS, INC. V. BONTA

subsequent offense, shall be fined fifty dollars; Provided, however, That no ordinary pocket-knife and common walking canes shall be construed to be deadly weapons.

SECTION 1. Be it This statute is enacted by the addressed in Legislature of the State Appendix D. of Texas, That any person carrying on or about his person, saddle, or in his saddle bags, any pistol, dirk, dagger, slung-shot, Act of Apr. sword-cane, spear, 12, 1871, ch. brass-knuckles, bowie- 34, §§ 1–2, knife, or any other kind 13 1871 Tex. of knife manufactured Gen. Laws or sold for the purposes 25, 25 of offense or defense, unless he had reasonable grounds for fearing an unlawful attack on his person, and that such ground of attack shall be immediate and pressing; or unless having or carrying the same on or KNIFE RIGHTS, INC. V. BONTA 131

about his person for the lawful defense of the State, as a militiaman in actual service, or as a peace officer or policeman, shall be guilty of a misdemeanor, and, on conviction thereof shall, for the first offense, be punished by fine of not less than twenty-five nor more than one hundred dollars, and shall forfeit to the county the weapon or weapons so found on or about his person; and for every subsequent offense may, in addition to such fine and forfeiture, be imprisoned in the county jail for a term not exceeding sixty days; and in every case of fine under this section the fined imposed and collected shall go into the treasury of the county in which they may have been imposed; 132 KNIFE RIGHTS, INC. V. BONTA

provided, that this section shall not be so construed as to prohibit any person from keeping or bearing arms on his or her own premises, or at his or her own place of business, nor to prohibit sheriffs or other revenue officers, and other civil officers, from keeping or bearing arms while engaged in the discharge of their official duties, nor to prohibit persons traveling in the State from keeping or carrying arms with their baggage; provided further, that members of the Legislature shall not be included under the term “civil officers” as used in this act. SEC. 2. Any person charged under the first section of this act, who may offer to prove, by way of defense, that he was in danger of an attack on his person, or KNIFE RIGHTS, INC. V. BONTA 133

unlawful interference with his property, shall be required to show that such danger was immediate and pressing, and was of such a nature as to alarm a person of ordinary courage; and that the weapon so carried was borne openly and not concealed beneath the clothing; and if it shall appear that this danger had its origin in a difficulty first commenced by the accused, it shall not be considered as a legal defense.

Every person who shall This law wear, or carry upon his governed a person any pistol, or territory. PROVO CITY, other firearm, slungshot, Utah did not UTAH, false knuckles, become a 14 ORDINANCES, bowieknife, dagger, or state until ch. 6, § 182 any other dangerous or 1896. (1877) deadly weapon, is guilty of an offense, and liable to a fine in any sum not exceeding twenty-five dollars; Provided, that 134 KNIFE RIGHTS, INC. V. BONTA

nothing in this section, shall be construed to apply to any peace officer, of the United States, the Territory of Utah, or of this city.

If a person carry about This statute is his person any revolver addressed in or other pistol, dirk, Appendix D. bowie knife, razor, slung shot, billy, metalic or other false knuckles, or any other dangerous or deadly weapon of like kind or character, he shall be Act of Mar. guilty of a 24, 1882, ch. misdemeanor, and fined 135, § 1, not less that twenty-five 15 1882 W. Va. nor more than two Acts 421, hundred dollars, and 421–22 may, at the discretion of the court, be confined in jail not less than one, nor more than twelve months; and if any person shall sell or furnish any such weapon as is hereinbefore mentioned to a person whom he knows, or has reason, KNIFE RIGHTS, INC. V. BONTA 135

from his appearance or otherwise, to believe to be under the age of twenty-one years, he shall be punished as hereinbefore provided; but nothing herein contained shall be so construed as to prevent any person from keeping or carrying about his dwelling house or premises any such revolver or other pistol, or from carrying the same from the place of purchase to his dwelling house, or from his dwelling house to any place where repairing is done, to have it repaired, and back again. And if upon the trial of an indictment for carrying any such pistol, dirk, razor or bowie knife, the defendant shall prove to the satisfaction of the jury that he is a quiet and peaceable citizen, of good character and standing 136 KNIFE RIGHTS, INC. V. BONTA

in the community in which he lives, and at the time he was found with such pistol, dirk, razor or bowie knife, as charged in the indictment, he had good cause to believe and did believe that he was in danger of death or great bodily harm at the hands of another person, and that he was, in good faith, carrying such weapon for self defense and for no other purpose, the jury shall find him not guilty. But nothing in this section contained shall be construed as to prevent any officer charged with the execution of the laws of the state from carrying a revolver or other pistol, dirk or bowie knife.

If a person carry about W. VA. CODE his person any revolver ch. 148, § 7 or other pistol, dirk, (1891) bowie knife, razor, slung shot, billy, KNIFE RIGHTS, INC. V. BONTA 137

metallic or other false knuckles, or any other dangerous or deadly weapon of like kind or character, he shall be guilty of a misdemeanor, and fined not less than twenty- five nor more than two hundred dollars, and may, at the discretion of the court, be confined in jail not less than one nor more than twelve months; and if any person shall sell or furnish any such weapon as is hereinbefore mentioned to a person whom he knows, or has reason, from his appearance or otherwise, to believe to be under the age of twenty-one years, he shall be punished as hereinbefore provided[.]

Act of June If any person, without a 5, 1925, ch. state license therefor, 3, § 7(a), carry about his person 1925 W. Va. any revolver or other Acts 24, 25 pistol, dirk, bowie- 138 KNIFE RIGHTS, INC. V. BONTA

knife, slung shot, razor, billy, metallic or other false knuckles, or any other dangerous or deadly weapon of like kind or character, he shall be guilty of a misdemeanor and upon conviction thereof be confined in the county jail for a period of not less than six nor more than twelve months for the first offense[.]