Lawrence VanDyke gets emotional during his confirmation hearings (C-SPAN).
A member of the U.S. Court of Appeals for the 9th Circuit volubly complained about his colleagues in a dissent this week while imploring the U.S. Supreme Court to intervene and overturn their jurisprudence on the Second Amendment.
In the underlying case of Knife Rights, Inc. v. Bonta, the appellate court upheld the Golden State's ban on carrying concealed switchblade knives. The original decision, rejecting a Second Amendment challenge to the law, was issued in January.
On Thursday, the full court rejected a request to rehear the case en banc — though eight judges voted to reconsider the case.
One of those dissenters was U.S. Circuit Judge Lawrence VanDyke, who was appointed by President Donald Trump during his first term.
VanDyke called out his colleagues for upholding the switchblade ban based on the knife being "associated" in the public imagination "with criminal activity" due to its prevalence in 1950s crime films.
"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," the dissent reads. "Sound constitutional adjudication requires, then, a fair assessment of what our Nation's history and traditions proscribed."
To hear VanDyke tell it, "no historical tradition exists in our country of completely banning the public carry of knives." Rather, the judge says, the evidence gathered by the panel "reveals a consensus that States could not ban public carry altogether."
For VanDyke, the knife dispute is part and parcel of the 9th Circuit's longtime aversion to Second Amendment rights in general — despite a series of Supreme Court rulings vindicating that right.
"This case is just the latest chapter in our court's long and concerning history of refusing to vindicate the Second Amendment," the dissent goes on. "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."
The judge goes on to note that the San Francisco-based appellate body remains out of step with the nation's highest court on the subject.
From the dissent:
[T]he 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." In the real world, no boss would tolerate nearly two decades of repeated defiance from a subordinate.
"So, what to do?" VanDyke muses before answering his own question. "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."
The dissent also took aim at his colleagues on the bench for automatically vacating panel opinions in certain instances — but not others — in order for "liberal" states to obtain what he termed "a second bite at the apple before a more favorable panel."
"[T]o 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," VanDyke opines.
The dissent explains:
[The latest ruling] 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).
As for a potential corrective, VanDyke argued for a more or less direct intervention from the nine justices in the present case.
The judge even offered a sarcastic template for a would-be quick fix:
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
"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," the dissent adds.