The status of switchblade knives under the Second Amendment is back in the news this week because of a Ninth Circuit opinion upholding California’s prohibition on these weapons. As I mentioned the last time I wrote about this issue, this case involves an application of the United States Supreme Court’s game-changing 2022 Second Amendment opinion in N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1.
All the Small Things: If a knife has a "detent," shown being cleaned here in an image from the helpful website KnivesandTools.com, that detail can distinguish it from a "switchblade" under California law.
The federal District Court, which had upheld California’s ban on these knives, had done so by concluding that there was no way a jury could agree that switchblades were “commonly used” in contemporary society for self-defense. That conclusion seemed somewhat remarkable to me: switchblades are legal in most states, and California is an outlier in this regard.
On appeal from the grant of summary judgment, the appellate court simply looks to whether the trial court’s conclusion was correct, regardless of the reasoning that the trial court used to get to that conclusion. And so the Ninth Circuit upholds the trial court’s ruling not by relying on this point about whether switchblades are “commonly used” (and in fact emphasizes its belief that there seem to be “uncertainties in Bruen’s methodological framework”) but by looking instead to one application of the law that it agrees is viable under the Second Amendment: its ban on concealed carry of switchblades. As the panel notes, the existence of at least one Constitutional basis for the law necessarily defeats the challenge, since the challenge asserted a facial attack on the law rather than arguing that some specific application of the law was improper.
The odd thing about this analysis is that the actual text of California’s statute makes no explicit reference to concealing switchblades or possessing them in a concealed manner. However, the opinion states that “The parties agree that Penal Code § 21510(b) prohibits the concealed carrying of switchblade knives in public,” and that concession appears to be enough to resolve this issue, at least for the moment, because there is strong historical precedent for prohibitions on concealed weapons. An as-applied challenge to the law presumably may be coming soon.