9th Circuit judge brings out bag of firearms in unusual dissent video
9th Circuit Judge Lawrence VanDyke appears before the Senate Judiciary Committee during his confirmation hearing in 2019. (File photo)
Seated in his chambers in front of a mounted long gun, an appellate judge delivered an unusual video dissent Thursday against his colleagues’ decision to uphold California’s ban on magazines that hold more than 10 rounds of ammunition.
In the 18-minute YouTube video, Judge Lawrence VanDyke of the U.S. Court of Appeals for the 9th Circuit pulled a half-dozen handguns out of a tote bag. As he disassembled the firearms, he argued that his fellow judges who upheld California’s large-capacity magazine ban in a 7-4 decision have a “basic misunderstanding of how firearms work.”
The video did not go over well with six judges on the appellate court. VanDyke’s 9th Circuit colleague, Judge Marsha Berzon, called the video presentation “wildly improper” in her written concurrence with the majority.
“Judge VanDyke has in essence appointed himself as an expert witness in this case,” Berzon wrote, “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.”
In his video address, VanDyke asserted that large-capacity magazines should be covered under the Second Amendment because they can be one of various parts that allow a firearm to function. Parts that enhance a firearm, he said, allow the gun to function better and should not be categorized as accessories.
“The majority is requiring that these factory-standard parts be replaced with worse-than-factory parts—a 10-round magazine,” VanDyke said as he held up a slim metal frame that controls the gun’s trigger mechanism. “So, when we take everything out that the majority might call an accessory, what we’re left with is this fire control unit.”
The 9th Circuit declined to comment when reached by The Washington Post on Thursday. VanDyke could not be reached for comment.
In his video, VanDyke said all of the guns and parts he handled in his chambers were made inoperable for safety reasons. And in response to Berzon’s critique, VanDyke wrote in his dissent that the purpose of the recording was to “convey a conceptual point” and not present “disputable facts” about guns.
VanDyke said he had planned to explain these thoughts in writing, where he would not be “accused of improper fact-finding,” but said he found it “obviously much more effective to simply show you.”
VanDyke was confirmed to the 9th Circuit by a Senate vote of 51-44 in December 2019. Before his confirmation, VanDyke received a scathing assessment from the American Bar Association, which wrote in a letter that he was unqualified and “an ideologue” who was “lacking in knowledge of the day-to-day practice.”
The letter, which was read at VanDyke’s confirmation hearing, cited 60 interviews with lawyers, judges and others who worked with VanDyke during his time as a deputy assistant attorney general at the Justice Department.
VanDyke did not provide comment on the letter at the hearing, but the Justice Department said in a statement that his “long record of public service and his extensive litigation experience” made him “exceptionally well qualified” to serve on the appeals court.
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