A conservative judge on the Ninth Circuit drew rebuke from a colleague after urging the Supreme Court to summarily reverse some of the court’s Second Amendment decisions.
Judge Lawrence VanDyke was appointed by President Donald Trump in 2020. He has become known for his combative opinions and remarks. His confrontational language has more than once made him a target for rebukes from other colleagues on the bench.
Such was the case in an appeal of a concealed switchblade law in California, which is a strict ban stopping citizens from “carrying, possessing, or offering to sell or loan a switchblade to another person is a serious crime,” explained one criminal law firm.
The law was challenged by knife rights advocates, who argued that it violates the Second Amendment. In the appeal of a lower court’s denial, the 9th Circuit panel held the challenge failed because California’s switchblade law had at least one constitutional application: concealed carry.
In VanDyke’s view, the decision was wrong. He argued that a concealed-carry prohibition cannot justify a total ban on public carry, and he called for Supreme Court “benchslaps” through summary reversals.
The plaintiffs called for an “en banc” review, and on Thursday, the panel of judges refused. VanDyke penned his own dissent, blasting his colleagues and demanding that the Supreme Court get involved because, for too long, it has allowed Second Amendment laws to remain ambiguous.
“I also write with a modest proposal,” said VanDyke. “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 [court review request] and reversal has done nothing—and I mean that literally— to change our court’s behavior.”
He continued, “In the real world, no boss would tolerate nearly two decades of repeated defiance from a subordinate.
VanDyke’s suggestion is that the Supreme Court “should consider summarily reversing some of our wayward Second Amendment decisions” across the 9th Circuit. “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.”
The demand wasn’t ignored. His colleague, Kim McLane Wardlaw, a Bill Clinton appointee, first blasted his dissent, accusing him of going beyond the case and attacking fellow judges, including the late Judge Stephen Reinhardt.
“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,” Wardlaw wrote.
She goes on to explain that even if California can legally ban carrying switchblades hidden on your body, it still can’t use the same law to turn around and ban carrying them openly. It can’t be okay in one situation but unconstitutional in the other.
She then turns to VanDyke individually, “Judge VanDyke’s dissent deserves but a brief response. While all agree that the Second Amendment is not ‘a second-class right,’ …’constitutional rights . . . come with exceptions,’ and, like the First Amendment, ‘the Second Amendment is not absolute,'” she wrote, citing both Supreme Court Justices Brett Kavanaugh and Amy Coney Barrett.
She alleges that VanDyke’s dissent issues “attacks on colleagues’ credibility, including those who are deceased, simply because of differing views, is not.”