Judge Lawrence VanDyke of the U.S. Court of Appeals for the Ninth Circuit, appointed by President Donald Trump during his first term, issued a unique dissenting-opinion video when his colleagues voted to uphold a California ban on magazines that hold more than 10 rounds of ammunition.
In an 18-minute video uploaded to the Ninth Circuit’s YouTube channel, VanDyke argued that the other judges on the appellate court lacked “the basic familiarity with firearms to understand the inherent shortcomings and obvious inadmissibility of the test that California was proposing” when they voted by a 7-4 margin Thursday to uphold the ban.
Dressed in his judicial robes, VanDyke went on to show the mechanics of his personal firearms for several minutes.
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“As an appellate body, it’s obviously not our role to make factual determinations,” VanDyke said in the video. “So I share this not to supplement the factual record that we’re using to decide this case. Instead, I share this because a rudimentary understanding of how guns are made, sold, used and commonly modified makes obvious why California’s proposed tests and the one my colleagues are adopting today simply does not work.”
VanDyke went on to say he could “explain all this in writing” but that it is “much more effective to simply show” what he means through demonstrating it. He also said he had “rendered inoperable all the guns and gun parts” for the video demonstration for safety purposes.
In his discussion, VanDyke challenged California’s argument that a magazine holding more than 10 rounds of ammunition is merely an accessory, not an arm protected by the Second Amendment, saying this argument is inconsistent with the facts of how a gun works, as a magazine plays an essential role in the function of a firearm, just like the firearm itself.
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VanDyke asked California’s counsel whether the reasoning that was used to justify banning these types of magazines could also be applied to semi-automatic firearms, which hold more rounds than older weapons, like muskets. He argued that the logic behind banning magazines could extend to banning semi-automatics altogether, which he suggested would be a broader and more extreme infringement of Second Amendment rights.
“I don’t think that we could ban all semi-automatic weapons,” California’s attorney for the case said in the discussion. “The point I was just making is, with respect to accessories, I think we have a difference of opinion.”
“That’s important, because your argument turns on whether you can characterize accessories,” Van Dyke responded. “So, you would say that the revolver versus semi-automatic is not an accessory, but that, but that a magazine is an accessory. So, what would you think about like a red dot sight? You know, electro optics, which are, which many, many firearms are going to, electronic optics nowadays? They’re obviously an accessory, because you could have iron sights. Could you ban those?”
“Your Honor, I’m not intimately familiar with that,” the counsel responded. “And I do want to answer this question and make sure that I save time for rebuttal.” The state’s attorney went on to say that at issue is whether, as an accessory, it is essential to exercising the right to self-defense.
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In her majority opinion, Clinton appointee Judge Marsha Berzon wrote that VanDyke’s video was “wildly improper” and that he “in essence appointed himself as an expert witness in this case.”
In 2016, the California legislature passed Senate Bill 1446, which banned the possession of so-called “large-capacity” magazines, or those that hold more than 10 rounds, starting July 1, 2017. The bill also imposed fines for those who failed to comply with this ban.
Later in 2016, Proposition 63 was approved by California voters, which incorporated the provisions of Senate Bill 1446 but also added a criminal penalty for the unlawful possession of large-capacity magazines after the July 1, 2017, deadline.
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