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.
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