Appeals Court Judge Disassembles Gun In Video Dissent From Anti-2A 9th Cir. Decision
Like most “blue” states, California has enacted a state statute banning magazines for semi-automatic handguns that carry more than ten rounds. See our prior coverage of Illinois’ own so-called “high-capacity” handgun magazine ban: Illinois Supreme Court Upholds Ban on ‘Assault Weapons’ and ‘Large Capacity Magazines’
Those statutes, as we have covered, have come under legal fire by pro-Second Amendment groups eager to maximize the self-defense options for law-abiding citizens who wish protect their families.
In California’s case, the California Rifle & Pistol Association, Inc. sued the State of California in May 2017 in the federal Southern District of California. After numerous twists and turns, including a trip up to and back from the U.S. Supreme Court, the federal U.S. Court of Appeals for the Ninth Circuit has now upheld California’s “large-capacity” handgun magazine ban, making it illegal in the states and territories of the Ninth Circuit, which includes California, Nevada, Arizona, Oregon, Washington, Idaho, Montana, Hawaii, Guam, and the Northern Mariana Islands, to own a handgun magazine holding more than ten rounds.
But the most amazing part of the opinion, and an absolute must watch (see below), is an 18-minute YouTube video by dissenter Lawrence VanDyke, who eviscerates the majority’s argument that magazines holding more than ten rounds can be constitutionally banned because such magazines are “accessories,” and not an essential part of a handgun.
Courthouse News Service has the story:
The Ninth Circuit Court of Appeals ruled Thursday in favor of California’s Attorney General Rob Bonta, upholding the state’s ban on large-capacity magazines and reversing a lower court’s decision that had deemed the law unconstitutional.In the case of Virginia Duncan et al. v. Rob Bonta, the en banc court determined that California’s law banning possession of large-capacity magazines complies with the Second Amendment and remanded the case with instructions to enter judgment for the state’s Attorney General.The appellate court provided two independent reasons for its conclusion. First, it determined that “the text of the Second Amendment does not encompass the right to possess large-capacity magazines because they are neither ‘arms’ nor protected accessories.””Large-capacity magazines are optional accessories to firearms, and firearms operate as intended without a large-capacity magazine,” the court explained. “Possession of a large-capacity magazine therefore falls outside the text of the Second Amendment.”Second, the court reasoned that even if the Second Amendment did cover such accessories, “California’s ban falls within the Nation’s tradition of protecting innocent persons by prohibiting especially dangerous uses of weapons and by regulating components necessary to the firing of a firearm.”
Of note, the federal district, or trial-level, court, had held the ban unconstitutional:
The ruling reverses a controversial 2023 decision by U.S. District Judge Roger Benitez, who had struck down the ban in a strongly worded 71-page order. Benitez, a George W. Bush appointee, characterized the law as an “extreme ban” that curtailed Californians’ Second Amendment rights.”In so doing, the state denies a citizen the federal constitutional right to use common weapons of their own choosing for self-defense,” Benitez wrote in his order. “There have been, and there will be, times where many more than 10 rounds are needed to stop attackers, yet under this statute, the state says ‘too bad.'”
As to Judge Benitez’s statement that “[t]here have been, and there will be, times where many more than 10 rounds are needed to stop attackers,” that is obviously true. But the State of California, and many others, don’t care about your right to self-defense, even after the landmark U.S. Supreme Court Heller, McDonald, and Bruen cases.
The good news is that this 9th Circuit case, being en banc, had 11 judges sitting for this opinion, and there were four judges in dissent:
The Ninth Circuit’s decision was not unanimous. Several judges filed dissenting opinions, including U.S. Circuit Judge Ryan Nelson, a Donald Trump appointee, who argued that “the majority’s decision flouted Bruen and spurned statutory procedure for en banc proceedings.”Also dissenting were fellow Trump appointees U.S. Circuit Judge Patrick Bumatay, U.S. Circuit Judge Ryan Nelson and U.S. Circuit Judge Lawrence VanDyke, as well as George W. Bush appointee U.S. Circuit Judge Sandra Ikuta.”California’s magazine ban is presumptively unconstitutional because the plain text of the Second Amendment protects the possession of magazines capable of feeding more than 10 rounds,” Bumatay said. “Nothing in the text, or the country’s historical understanding of the Second Amendment, warrants California’s magazine ban.”
And, in a move making the most headlines about this story, Judge VanDyke made a video explaining exactly why the majority opinion is dead wrong:
VanDyke’s dissent included a controversial video showing him handling handguns and explaining their mechanics, which U.S. Senior Circuit Judge Marsha Berzon criticized in her concurring opinion. The Bill Clinton appointee argued that VanDyke had “in essence appointed himself as an expert witness in this case, providing a factual presentation with the express aim of convincing the readers of his view of the facts without complying with any of the procedural safeguards that usually apply to experts and their testimony.”
But in a deft move, Judge VanDyke, in the written portion of his dissent, explained why the video was entirely proper:
Finally, I must respond to Judge Berzon’s concurrence attacking at some length the video portion of this dissent as “wildly improper.”* * * *Demonstrating the majority’s consummate textualist bona fides, Judge Berzon’s first criticism starts and ends with the text of our court’s General Orders: “[T]he determination of each appeal … shall be evidenced by a written disposition.” 9th Cir. Gen. Ord. 4.5(a) (emphasis added). Judge Berzon emphasizes “written,” and I’m never one to dispute that words can be “a real workhorse when italicized,” particularly in Second Amendment cases. McDougall v. Cnty. of Ventura, 23 F.4th 1095, 1122 n.5 (9th Cir. 2022) (VanDyke, J., concurring). But emphasizing one word doesn’t license us to ignore the rest of the text. General Order 4.5(a) doesn’t even say that “the determination of each appeal” shall be “in writing,” much less that it shall be entirely or solely in writing. It says only that the “determination of each appeal … shall be evidenced by a written disposition.” 9th Cir. Gen. Ord. 4.5(a) (different emphasis added). It should be self-evident that if the rule requires only that “the determination … be evidenced by a written disposition” then it doesn’t require that it be “a written disposition”—just evidenced by one. In other words, our court can’t just issue an oral ruling from the bench disposing of a case that is never memorialized—i.e., “evidenced”—in writing. The administrative need for such a rule is obvious enough.My dissent clearly is “evidenced by” a written disposition. Much of the dissent is actually written, and this written portion evidences (i.e., refers to) the oral portion. And even if the rule required that the disposition itself be written, that too would be satisfied by my dissent—which again, is written in part. Indeed, only if the rule unambiguously required that the “determination of each appeal” be only in writing would Judge Berzon’s criticism have any merit. But aside from running squarely into the phrase “evidenced by,” such an extreme reading of General Order 4.5(a) would also be inconsistent with our court’s established practice. We have long included links to videos in our court’s opinions, as well as pictures, timelines, and diagrams. Nobody thought that was a problem until now, and Judge Berzon even defends that practice in her concurrence. In short, Judge Berzon’s overreading of General Order 4.5(a) is just that—an overreading.[bold emphasis added]
As we used to say when I worked for Judge Gerald Bard Tjoflat of the U.S. Court of Appeals for the 11th Circuit, when finding a particularly powerful piece of judicial writing, BOOM!
In any case, please watch the entire 18-minute video, you’ll be glad you did:
X, of course, is on fire, with one of the posts declaring Judge VanDyke is “now in my top 5 for next SCOTUS picks”:
The next step obviously is for the various cases that have been decided at the appellate level, including this one, to go to the U.S. Supreme Court for review:
Whether the highest Court in the land will hear the case is anybody’s guess, but it’s a definite possibility.
My prediction is that SCOTUS will take the case and will reverse the 9th Circuit, making the high-capacity magazine ban a thing of the past.
We will keep you posted.
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