Judge Lawrence VanDyke of the U.S. Court of Appeals for the Ninth Circuit was concerned that his fellow judges didn’t have all the information they needed when they upheld California’s ban on so-called “high-capacity” magazines.
On March 20, the en banc court held that California’s ban on large-capacity magazines is in accordance with the Second Amendment, reversing a district court decision and finding in favor of California’s attorney general.
According to the majority, ammunition magazines are accessories and not legal arms. Therefore, they are not protected by the Second Amendment.
They also wrote that the ban fits with a tradition of banning dangerous items.
“California’s ban on large-capacity magazines 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 decision reads.
In court and on the video, VanDyke said the majority’s logic could be used to ban any component of a firearm.
Speaking on camera, VanDyke used his firearms to demonstrate how parts necessary for the operation of a gun could be classified as accessories since they are available in different styles and types.
According to VanDyke, parts can improve a gun’s operation when it is used properly or make it more dangerous if it is being used improperly.
Judge Marsha Berzon, who concurred with the majority in upholding the ban, outlined some concerns with VanDyke’s video.
Berzon wrote that the video was not part of his written dissent and introduced facts outside the record.
She also said VanDyke made himself an expert witness in addition to a judge tasked with deciding the case.
According to Berzon, VanDyke made a factual presentation without the safeguards that apply to experts.
“Our rules do not allow a video to operate as a ‘disposition,’ a term that includes separate opinions,” Berzon wrote.
VanDyke said he included the video link in his dissent because he was concerned that the state’s lawyers and some of the judges didn’t fully understand how guns worked.
He said the video only clarifies points he made in his written dissent.
The majority wrote that its decision fell under the standard set by the 2022 U.S. Supreme Court decision in New York State Rifle and Pistol Association v. Bruen.
In the Bruen decision, the high court found that a gun law must comply with the text of the Second Amendment and have a similar law in effect at the time the Second Amendment was ratified.
Plaintiffs in the original 2016 case, Duncan v. Bonta, challenged the state’s ban on magazines that hold more than 10 rounds.
Later that year, voters approved Proposition 63, which incorporated the ban and added a possible criminal penalty.
It also required the confiscation of existing magazines, which had been grandfathered.
The Ninth Circuit upheld the ban in November 2021. The Bruen decision in 2022 resulted in the case being sent back to the lower court.
