A federal appeals court judge published a firearms demo recorded in his chambers on YouTube to explain how his colleagues in a major Second Amendment case are living in a “factual fantasy.”
The full Ninth Circuit Court of Appeals reaffirmed an earlier ruling backing California’s ban on magazines holding more than ten rounds on Thursday, finding the ban does not violate the Second Amendment. In his dissent, Trump-appointed Judge Lawrence VanDyk linked to a self-made video where he uses his personal shooting equipment to refute the majority’s logic.
“It is so easy to demonstrate the conceptual failings of the majority’s new test that even a caveman with just a video recorder and a firearm could do it,” VanDyke wrote in his dissent.
The Supreme Court directed the court to review its earlier decision in light of the 2022 ruling in New York State Rifle & Pistol Association vs. Bruen, where the Supreme Court held that firearms restrictions must be consistent with the nation’s history and tradition of firearm regulation.
“The majority’s logic is premised on its assumption that there is some Platonic ideal of a firearm, which I guess makes sense if you think judges are the Platonic Guardians of the Second Amendment,” VanDyke wrote. “That’s a nice job if you can get it, but it should be clear enough by now that many judges (and gunbanning governments) know next to nothing about how guns actually work, which perhaps explains why they would invent such an obviously inadministrable test for guns, but never for any other constitutional right.”
The Ninth Circuit majority found that large-capacity magazines are neither arms nor protected accessories. Even if the Second Amendment covers “optional accessories,” the ban still “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,” the rulings states.
VanDyke was among 20 potential Supreme Court nominees Trump included in his September 2020 list.
Some of his colleagues did not appreciate the unique presentation of VanDyke’s dissent. Judge Marsha Berzon, who was appointed by former President Bill Clinton, for instance, slammed the video as “wildly improper.”
“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,” Berzon wrote in a concurrence joined by five other judges.
VanDyke responded that the majority’s real concern was that his video “unmasks their invented constitutional test as obviously grounded in a factual fantasy.”
“Don’t shoot the messenger simply for showing that this reality doesn’t exist,” he wrote.
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