In a decision that could well find itself before the Supreme Court, the United States Court of Appeals for the Ninth Circuit upheld California’s ban on “large capacity” magazines. In a rare move, Judge Lawrence Van Dyke offered a video dissent to the majority opinion.The en banc panel previously upheld the state’s magazine ban, but the Supreme Court vacated that decision and remanded the case in light of the Bruen decision in 2022. The Ninth Circuit then returned the case to U.S. District Judge Roger Benitez.Benitez again ruled that the law was unconstitutional, a prior position that he viewed was strengthened by the Bruen decision.
The Ninth Circuit then, again, overruled the lower court.
In a 7-4 decision authored by senior circuit Judge Susan Graber, an appointee of former President Bill Clinton, the majority wrote that “a large-capacity magazine has little function in armed self-defense, but its use by mass shooters has exacerbated the harm of those horrific events.” She added:
“First, the Founders protected the right to keep and bear ‘Arms,’ not a right to keep and bear ‘Arms and Accoutrements,’ a common expression at the time of the Founding,” the opinion said. “Large-capacity magazines are optional accessories to firearms, and firearms operate as intended without a large-capacity magazine. A large-capacity magazine is thus an accessory or accoutrement, not an ‘Arm’ in itself. Possession of a large-capacity magazine therefore falls outside the text of the Second Amendment.”
In a belt-and-suspenders approach, the court further ruled that, even if large-capacity magazines were covered by the Second Amendment, “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.”
Three judges appointed by President Donald Trump wrote stinging dissents.
Judge Ryan Nelson wrote that his colleagues flouted the standard set by the Bruen ruling and in so doing “(butchered) the Second Amendment and (gave) a judicial middle finger to the Supreme Court.”
Judge Lawrence VanDyke went further to include an actual video in which he handles guns and accessories to show why he believes the distinction between a gun and an accessory is illusory:
The judge emphasized that he was not offering the video as new factual evidence. However, it sounds much like the testimony that an expert witness would give at trial. That brought an objection from his colleague, Judge Berzon:
“True, the prejudice to the parties here is arguably minimal because Judge VanDyke has prepared his video in support of a dissent. But if a dissent can rely on a judge’s recorded factual presentation, nothing prevents a majority opinion from doing the same thing. I therefore write separately in the hope that in the future my colleagues, whether in the majority or dissent, will do exactly and only that: write. And, although I am surprised that it is necessary to do so, I write to reemphasize that as judges, we must decide cases as they are presented to us by the parties, leaving advocacy to the attorneys and testimony to the witnesses, expert and otherwise.”
The inclusion of the video is highly irregular and many judges would likely look dimly at the use of such demonstrative evidence in an appellate dissent.
The case offers another opportunity for the Court to address the outward limits of the Second Amendment. Blue states are moving to limit a variety of devices or components deemed “accessories.” If allowed to stand, it could prove a significant area of contraction for the protections for gun ownership.
The case can now be appealed to the Supreme Court, again. It will join another magazine ban case in Ocean State Tactical v. Neronha, which is awaiting a decision on whether it will be picked up by the Court.
Here is the opinion: Duncan v. Bonta
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