Anti-gunners are making a big deal of what they called a “wildly improper“ video made by a judge on the 9th Circuit Court of Appeals explaining why the court’s recent ruling in the California magazine ban case is wrong.
During the video, Judge Lawrence VanDyke said his colleagues have a “basic misunderstanding of how firearms work,” a gross understatement if there ever was one.
In the video, which can be seen here, Judge VanDyke explained how so-called “high-capacity” magazines are very common in the United States and why they should be covered as an “arm” under the Second Amendment right to keep and bear arms—an opinion in direct contrast to the 9th Circuit’s 7-4 ruling on March 20 in the case Duncan v. Bonta.
“I think anybody with a basic familiarity with firearms could show you that this attempted distinction is simply inconsistent with reality,” Judge VanDyke said in the video. “From this (courtroom) exchange, it became clear to me that many, including California’s counsel and my colleagues in the majority on this case, lack the basic familiarity with firearms to understand the inherent shortcomings and obvious in administrability of the test that California was proposing and which the majority in this case has now adopted.”
Judge VanDyke then began disassembling a Sig P320 to explain on video how the magazine works. He showed how the slide goes back to eject the spent round, then grabs another round from the magazine and inserts it into the chamber.
“California acknowledges that a magazine is necessary to make the firearm function,” he explains. “But they argue that because you can replace the standard magazine with one that holds fewer rounds—10 rounds or less—then these higher capacity magazines are not an ‘arm’ and thus fully unprotected by the Second Amendment.”
As Judge VanDyke pointed out, the problem with California’s argument is that the same point can be made about essentially every part of the firearm, which would mean that nothing on this firearm would be protected by the Second Amendment.
Ultimately, Judge VanDyke in the video proved his point quite well, even pointing out that under California’s logic, the takedown lever—which is necessary for the gun’s function—isn’t protected by the Second Amendment. And the same goes for the gun’s grip, sights and other parts under the majority’s ruling.
“You might actually ask yourself, ‘What part of this pistol would be protected as an arm under the majority’s logic?’” he said. “Well, I suppose California would eventually be forced to say, ‘Well, this part, the FCU (fire control unit) is the arm protected by the Second Amendment.’ Every other part that you added could be easily characterized, just like the magazine, as an ‘accessory’ that you add to the firearm and, therefore, could be banned under the Second Amendment.”
Not surprisingly, some who signed on to the majority opinion in the case were not happy that Judge VanDyke made the video. In her concurrence with the ruling, Judge Marsha Berzon criticized VanDyke’s video, saying it was “wildly improper.”
She also said that VanDyke had provided “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.”
As we have explained before, magazines holding more than 10 rounds of ammunition are far from uncommon in the country. In fact, a study recently released by the National Shooting Sports Foundation (NSSF) revealed how truly common the devices are.
“The Detachable Magazine Report (1990-2021) confirms what NSSF has known—that the national standard for magazine capacity for America’s gun owners is greater than 10 rounds,” the organization stated. “With nearly 1 billion detachable magazines in circulation, for both rifles and pistols, they are unquestionably commonly-owned and commonly-used for lawful firearm use, including recreational target shooting, hunting and self-defense. They are ‘arms’ within the meaning of the Second Amendment. Detachable magazines are integral to the design of, and necessary for the proper functioning of, today’s modern semi-automatic firearms.”
In the end, many tried to turn Judge VanDyke’s video into political theater, pointing out that he was appointed to the circuit court by President Donald Trump. Hopefully, President Trump will be able to appoint more judges to that and other federal courts in the coming 3.5-plus years.
…a factual presentation with the express aim of convincing the readers of his view of the facts…
Her complaint is that his facts are factual and that he shouldn’t be trying to convince others of his factual facts? I suppose facts aren’t actually factual unless they’ve been vetted through property bureaucratic channels following parliamentary procedure.
There really is no hope for some people.
Brilliant reply from the judge!
They’re just angry because he made them look stupid.
Not being stupid in the first place is suspiciously absent from the thought process, apparently.
Always will be, stupid doesn’t learn.
Shire-Man,
Well, TECHNICALLY, her objection was that he made a factual (e.g., ‘evidentiary’) presentation without going through the procedural requirements that would have applied had he made that presentation in court. And, although I TOTALLY agree with Judge VanDyke, she is not incorrect. One of my beefs with my former profession is that it frequently elevates form over substance, but there ARE strict (often stupid) rules for presenting factual evidence.
Having said that, is there anyone in this audience that is even slightly surprised that . . . most Leftists/Dimocrats/anti-gunners (again, I repeat myself, thrice) know sweet f*ck-all about firearms (or economics, or science, or reality, but those are different topics)????
Didn’t think so. Judge VanDyke (I could have EASILY seen Judge Benitez make this same presentation, if he’d been elevated) was simply stating the obvious and irrefutable truth about . . . how a modern firearm actually works (I do disagree with him on one point – a ‘revolver’ is every bit a ‘semi-automatic’ firearm, in that every pull of the trigger, by the functioning of the action, brings a new round ‘into battery’, but that’s a quibble).
He probably did color outside the lines (and the funny part is that, IF he’d simply written that in his dissent, he would have been fine. What they are REALLY objecting to is that his presentation was both effective and persuasive), but the outcry about it illustrates how ineffably stupid my former profession is.
Although it may help some I do not need a video explanation because no matter how it is sliced and diced it is still Gun Control. And Gun Control in any shape, matter or form is an agenda History Confirms is Rooted in Racism and Genocide. It takes a real dumbfuks to bark at History and it takes gutless wonders not to cite the History of Gun Control in Defenfense of The Second Amendment and on the behalf of millions who were left defenseless in the wake of Gun Control.
https://youtube.com/watch?v=WlItbl9SOAg&feature=shared
Why didn’t the plaintiff’s attorneys find or create such a video presentation and show it to the court at trial?
Perhaps equally compelling, why didn’t the plaintiff’s attorneys show the video of the Indiana County Sheriff which demonstrated that 10-round magazine capacity limits do not slow down (in any significant way) the rate of fire of even a novice shooter?
I watch and studied that video a number of times (I have it bookmarked). The demonstration is well set up. What is particularly well thought out the inclusion of an experienced shooter versus a novice shooter. IIRC, after all the trials where concluded the “scoreboard” indicated an ~2 sec difference between the shooters and the various magazines used. Additionally, the Sheriff created a demonstration of the “seven yard rule”.
Any Chance Van Dyke can argue the case in the supreme court? No, not kidding. I mean is it actually allowed for a lower court judge to argue the case in the supreme court?
Kyle,
Unfortunately, he is not allowed to either argue, or present testimony, in any appeal . . . and while I disagree with some of the stupid rules of my ex-profession, I actually do agree with that one. It was a very solid presentation of simple facts, that any reasonably educated gun-owner knows, but . . . not the judge’s role (nor should it be). I don’t agree with many of the ‘rules’ of my former profession, but this one actually makes sense.
With any luck this video will be of more relevance than other spammed clickbait.
Plaintiff’s counsel dropped the ball by not entering BATFE and TTB (Tax and Trade Bureau) regulations for calculating the federal excise tax on a firearm as evidence. The United States governments own agencies stipulate that any firearm that uses a detachable magazine MUST include the cost of at least one magazine when establishing the price of a fully functional firearm for taxation purposes as they view it as AN INTEGRAL PART OF THE OPERATING SYSTEM. If 9th Circuit’s ruling is left to stand, the firearms industry is eligible for what might possibly amount to billions (with a $B) in tax credits amassed over the years. The .gov can’t have it both ways – it either is a functional part of the firearm or it isn’t. NSSF and the plaintiffs should take this point and petition TTB for tax credits and let the TTB attorneys go after 9th Circuit to head this off.
and why they should be kicked in the nuts because none of them are upholding their oath to protect the Constitution to the best of their ability.
https://www.youtube.com/watch?v=BKorP55Aqvg
I am thankful that at least one federal judge understands reality.