An 18-minute video dissent by a Donald Trump-appointed federal judge in California has gone viral, as he challenges the majority opinion in a case known as Duncan v. Bonta, contending that magazines are integral to the operation of a semi-automatic firearm, and are therefore protected by the Second Amendment.
U.S. Judge Lawrence VanDyke, appointed to the Ninth Circuit Court of Appeals during Trump’s first term, created the video in his chambers. During the video, he demonstrates visually why he argues against the ban. The appeals court ruled 7-4 that California’s ban is allowed under the Second Amendment, stating the magazine is not a protected accessory and is not considered an “arm,” according to The Guardian.
VanDyke’s first-of-its-kind video is posted on YouTube, which was criticized by Judge Marsha S. Berzon. The video appears to have been viewed more than 186,000 times.
Beyond his video, Judge VanDyke also wrote a dissent, in which he chastised the Ninth Circuit for doing precisely what the U.S. Supreme Court said is no longer permitted in Second Amendment cases: Interest balancing.
“Three years ago,” VanDyke stated, “the Supreme Court vacated our court’s opinion in this very case, presumably because we tried the same tack that Bruen rejected in no uncertain terms: engaging in interest balancing after assuming that an activity falls within the scope of the Second Amendment. In other words, our court’s reliance on interest balancing (like the Second Circuit’s decision in Bruen) took ‘one step too many.’ Because, as the Supreme Court made clear enough in District of Columbia v. Heller, the Second Amendment is itself ‘the very product of an interest balancing by the people,’ it is not our role to ‘conduct [it] for them anew.’
“Notwithstanding these repeated directives to stop,” the judge continued, “today’s decision doubles down on this court’s prior practice of balancing away the rights of law-abiding citizens to bear arms in self-defense—only this time under another name. Rather than balancing after concluding that the original understanding of the Second Amendment protects an individual’s conduct, the majority now merges its balancing into its determination of whether the Second Amendment protects an individual’s conduct at all. This reinforces why interest balancing must have no place in applying the Second Amendment.”
However, writing for the Majority, Judge Susan P. Graber observed, “Even assuming that the text of the Second Amendment encompasses the possession of an optional accessory like a large-capacity magazine, California’s law falls neatly within the Nation’s traditions of protecting innocent persons by prohibiting especially dangerous uses of weapons and by regulating components necessary to the firing of a firearm.”
Later, Judge Graber A large-capacity magazine—which enables a shooter to fire more than ten bullets rapidly and without reloading— has almost no utility in the lawful defense of the home, but it has devastating effects in mass shootings. A shooter equipped with a large-capacity magazine may kill and injure many people in rapid succession, not only because the shooter can fire many bullets quickly but also because the shooter can fire without pausing to reload. Those pauses are crucial because they allow intended victims and law enforcement personnel to flee, take cover, and fight back.”
As noted by Fox News, “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.”
Judge VanDyke did the video while wearing his judicial robe. He acknowledges he owns a sidearm for personal protection as he goes through various steps explaining magazines, sights (both metallic and electronic red dot), and contends his colleagues on the court lack “the basic familiarity with firearms to understand the inherent shortcomings and obvious inadmissibility of the test that California was proposing.”
“I share this,” Judge VanDyke says, “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.”
In her criticism, Judge Berzon writes, “First, the video is not part of his written dissent and it includes facts outside the record, so the panel is right to ignore it. Second, and more egregiously, Judge VanDyke has 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, while simultaneously serving on the panel deciding the case. While the facts Judge VanDyke asserts must be ignored, his wildly improper video presentation warrants additional comment, lest the genre proliferate.”
