OSD 318: Judges on gun knowledge: “That’s for me not to know and for you not to find out”
On Judge VanDyke’s dissent in a mag ban case.
This week was the last stop for Duncan v. Bonta before it gets to the Supreme Court (if it ever gets to the Supreme Court). The case is a lawsuit brought by the California Rifle & Pistol Association, which is suing to strike down California’s ten-round magazine capacity limit. There’s a weird procedural history here:
2017: a California ballot initiative bans the possession of mags holding more than ten rounds
March 2019: Judge Roger Benitez, a federal district court judge in California, strikes down the law. From March 29 through 5 pm on April 5, when the Ninth Circuit stayed Benitez’s ruling pending appeal, Californians could buy any size mags they wanted. During that period, known as Freedom Week, Californians bought something like 1 million magazines.
August 2020: a three-judge panel on the Ninth Circuit affirms Benitez’s ruling. California appeals for en banc review (i.e. rehearing the case with a bigger group of judges).
November 2021: an en banc panel on the Ninth Circuit reverses Benitez and upholds the law. CRPA appeals to the Supreme Court.
June 2022: the Supreme Court vacates the case (cancels all previous court rulings) and kicks it back down for reconsideration given their then-brand-new ruling in Bruen, which struck down may-issue permitting regimes and created new Second Amendment precedent. Back to square one.
September 2023: Judge Benitez once again finds the mag ban unconstitutional. California appeals.
March 2024: the same en banc panel on the Ninth Circuit hears the case again.
March 20, 2025: they once again uphold the mag ban, even in light of Bruen. CRPA will now appeal to the Supreme Court.
So we’re eight years into this law, and the federal courts are working at their characteristic lightning speed to make a final ruling sometime in 2027.
One of the judges in dissent on the en banc panel this time, just like last time, is Lawrence VanDyke. We’ve written about Judge VanDyke before. Why? Well, there’s this from when he was the solicitor-general of Montana:
On multiple occasions VanDyke recommended to [then–Attorney General of Montana Tim] Fox that Montana join other states’ challenges to state and federal gun laws.
In May VanDyke recommended Fox sign-on to a brief written by Alabama’s attorney general urging a federal appeals court in New York to overturn that state’s ban on some semiautomatic weapons.
In addition to supporting the challenge to New York’s semi-automatic gun ban, VanDyke wrote in an email to Alabama assistant solicitor general Andrew Brasher: “Plus semi-auto firearms are fun to hunt elk with, as the attached picture attests.”
The attached photo showed VanDyke hunting with a semi-automatic rifle.
“That’s a SCAR 17 — the same gun used by the Navy SEALs (but mine’s only semi-auto, unfortunately),” VanDyke wrote.
Here’s that picture:
Or there’s the time that VanDyke wrote a spicy dissent from the Ninth Circuit’s upholding of the federal lifetime ban on gun possession for anybody who has ever been involuntarily committed. @2Aupdates wrote a great breakdown of that dissent.
Or there’s the time we observed that there was a million dollar bill lying on the sidewalk for 2A-friendly law students:
Law students apply to judicial clerkships this fall. Clerkships are a big deal. Clerkships with federal judges are a really big deal. Clerkships with federal appeals court judges are (short of a Supreme Court clerkship) the biggest deal. They put law students onto a life-altering course to enter the most elite law firms, professorships, executive and judicial branch jobs, and so on.
That’s why it was surprising to see this article in the Harvard student newspaper back in January: “Following Lack of Applications, Harvard Law School Encourages Students to Apply to Clerk for Trump-Appointed Judges”. Here’s the gist of it:
In a series of messages to students and alumni, the Office of Career Services and alumni said that the lack of applications on file seemed like “wasted opportunities,” according to Bloomberg Law.
On Dec. 17, the school sent a message encouraging students to apply to work with newly confirmed Ninth Circuit judge Lawrence VanDyke in Nevada.
“Lawrence VanDyke (HLS ‘06) was confirmed last week to become a new judge on the Ninth Circuit based in Reno (‘next to Lake Tahoe and great skiing!’),” the message read.
…
Zero Harvard Law students applied to clerk with [Judge VanDyke] last year, despite a Ninth Circuit clerkship being nearly the most elite job that it’s possible to get as a graduating law student. The same (or similar) likely goes for Yale Law, Stanford, and other top programs. But given the water those schools draw, anyone who did apply would have a great shot at getting the job.
And lastly there’s the newsletter from the last time VanDyke ruled in the mag ban case:
His dissent this time was similar in spirit and argument, with one major difference: he recorded a video as part of his dissent:
He did that to illustrate his point that the majority erred in finding that magazines are merely accessories, not arms, and are thus not protected by the Second Amendment:
As I hope the video portion of this dissent helpfully illustrates, an “arm” — just like most other categories of objects known to the human experience — is a broad conceptual term covering an almost limitless variety of configurations within that category. See Bruen, 597 U.S. at 28 (explaining that the term “extends, prima facie, to all instruments that constitute bearable arms” (emphasis added)). The majority does not and cannot dispute that. It acknowledges that “the meaning of ‘Arms’ … broadly includes nearly all weapons used for armed self-defense.” But the majority nonetheless concludes that in its view some parts of a firearm are “necessary to the operation of a weapon” and thus protected by the Second Amendment, while other parts are not necessary and therefore not protected “arms.” The majority then purports to apply its misguided new test to decide that higher capacity magazines are not arms, while lower capacity magazines are.
…
My colleagues in the majority reason that “a magazine is an integral part” to the operation of a semi-automatic gun and therefore “that the Second Amendment’s text encompasses a right to possess a magazine.” I agree. But the majority also contends that a “large-capacity” magazine “is not necessary to operate any firearm” and is therefore not an arm or a protected component. California defines a large-capacity magazine as any magazine holding more than ten rounds. But why stop there? Under the majority’s rationale, any magazine that holds more than one round is not “necessary” for the function of the weapon. So presumably California could also ban magazines holding five rounds. Maybe even two.
And why stop at magazines?…
He goes on to argue that the majority’s logic would also uphold bans on ergonomic grips, red dot sights, improved triggers, or semi-automatic firearms altogether. He uses the video the illustrate how unworkable the distinction between arms and accessories is.
The majority did not like that. Six judges from the majority wrote separately to chastise VanDyke for making the video:
I concur in full in the majority opinion. Here, I address Judge VanDyke’s novel form of “dissent”. Judge VanDyke’s dissent improperly relies on factual material that is unquestionably outside of the record. His source for these beyond-the record facts? A video that he recorded, in his own chambers, showing him handling several different handguns and explaining his understanding of their mechanics and operation.
I write separately to point out two fundamental problems with Judge VanDyke’s reliance on his self-made video: First, the video is not part of his written dissent and it includes facts outside the record, so the panel is right to ignore it. Second, and more egregiously, Judge VanDyke has in essence appointed himself as an expert witness in this case, 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. While the facts Judge VanDyke asserts must be ignored, his wildly improper video presentation warrants additional comment, lest the genre proliferate.
In fairness, there is some reason for the judges to be concerned. Court procedures evolve slowly for a reason: the implications of a court’s rulings are life-altering for the parties (and often for society generally). Stability and procedural predictability is critical for making the system fair and navigable. Lastly, the judges here are correct that there are myriad rules about how to introduce expert testimony, and it would indeed be wildly improper for a judge to appoint themself as an expert witness in a case they’re presiding over.
But is that what VanDyke is doing?
VanDyke explains it well in this long excerpt. (The Mai case he references below is the same one we mentioned above, where over his dissent the Ninth Circuit upheld the federal lifetime ban on gun possession for anybody who has ever been involuntarily committed.):
Most of Judge Berzon’s withering fire, however, is directed at the perception that I’ve made myself a factual expert in this case. First, I would be remiss if I didn’t say thank you. But as much as I may be flattered, I think the accusation misses the mark — indeed, I think my colleagues aren’t even aiming at the right target. My criticism of the majority’s reliance on the arms–accessory distinction to decide this constitutional case is fundamentally a conceptual one, not a factual one. As already noted, it has nothing to do with any unique characteristics of firearms per se, but is rather an intrinsic conceptual shortcoming with the majority’s ill-advised approach that makes a fundamental right turn on whether some object has certain “inherent” qualities or is instead an “unnecessary” add-on to the Platonic ideal of some category. Illustrating that conceptual shortcoming with the majority’s approach doesn’t necessarily require any factual “expertise” about firearms. It just requires a certain level of logical and analytical rigor combined with good judgment in not creating clearly inadministrable constitutional tests — precisely the type of legal expertise we expect in our jurists. So again, thank you.
…
There are several strong indicators that Judge Berzon’s and the majority’s “facts outside the record” complaint about my video dissent is just a manufactured concern. First, if you have watched the video portion of my dissent and also read up to this point you are no doubt aware that the written portion of my dissent makes the same conceptual argument as the video: it talks about the same firearms parts except in written form. Yet the majority has never complained that the written portion of my dissent “includes facts outside the record.” The difference between the two formats (written and video) is not the supposed factual content, but rather that for some reason the video format is harder to ignore. So the majority has fabricated a sham procedural reason to justify ignoring it anyway.
The majority’s newfound punctiliousness for scrupulously avoiding any reference to facts outside the record would perhaps ring truer if it was evenly applied in Second Amendment cases. Only a few years ago, the same judge who has authored the majority opinion in this case authored an opinion in another case denying Second Amendment rights — and relied extensively on extra-record facts in doing so. See Mai v. United States, 952 F.3d 1106, 1117 & n.6, 1118 & n.7, 1121 (9th Cir. 2020) (Graber, J.) (relying on extra-record studies, including “[i]n other contexts” like smoking, to support the majority’s conclusion). Nobody in today’s majority batted an eye. See Mai v. United States, 974 F.3d 1082, 1082–83, 1097 (9th Cir. 2020) (en banc) (containing multiple dissents from the denial of rehearing en banc without a single member of today’s majority joining).
As evidence of the way that courts play fast and loose with extra-record facts, and the reality that they’re often statistically illiterate as they do it, the majority in Mai reasoned that “the scientific evidence supported … that those who have been committed involuntarily to a mental institution still pose an increased risk of violence even years after their release from commitment.” But the ruling went on to cite just one study showing increased risk of suicide, and that study only followed patients for 8.5 years. The plaintiff had been mentally healthy for 20 years.
The majority doesn’t dispute (because it can’t) that the Mai panel relied on extra record materials to directly support the outcome in that case. Instead, the majority belatedly attempts to justify that reliance because the extra-record materials existed in “publicly available scientific studies” and because “the parties had asked [the court] to assess the scientific evidence.” Okay. Whatever post-hoc rationalization the majority offers now, nothing alters that the Mai panel felt free, so long as it was rejecting a Second Amendment claim, to cite and directly rely on facts that were neither in the record nor cited by the parties.
In contrast, as I’ve now explained at length, the conceptual point I’m making in both the written and oral portions of this dissent in no way relies on any specific or unique facts — “scientific” or otherwise. The video portion of my dissent doesn’t engage in any factfinding. It makes a broad conceptual point that can be easily illustrated by a literal universe of commonly known objects without being tethered to any specific facts about those objects. But if my colleagues were genuinely bothered by referencing nonrecord facts in Second Amendment cases, maybe they would have voted for en banc review in Mai—a case where the panel expressly relied on non-record facts to drive the outcome in that case.
There is also a heads-I-win, tails-you-lose quality to the majority’s crocodile tears over the supposed non-record facts in my video dissent. Remember, it is the majority, urged on by California, that has introduced a plainly conceptually flawed but supposedly fact-based constitutional test, and then purported to invent a farcical factual distinction to support its constitutional conclusion. It cannot be the case that, when judges make up such conceptually flawed constitutional tests, the further the invented test is from factual reality the more insulated it is from criticism. The majority’s real beef with my video is not that it introduces any new facts, but that it unmasks their invented constitutional test as obviously grounded in a factual fantasy.
Courts do have a lot of rules for introducing evidence and arguments. The net effect of all of those rules is simple: they tend to entrench the things that the court wants to believe. If your argument benefits from the court’s biases, the rules of evidence will help you. If you’re working against the court’s biases, the rules of evidence can be fatal to your case.
VanDyke is in a unique position here. As a judge rather than a party to the case, he can do pretty much whatever he wants. And he’s using that power to say the majority is using the rule against judges bringing outside facts to cover up their real goal: preventing judges from bringing outside logic. They don’t like standard-capacity magazines. And that’s a personal opinion that people are free to have. But under Bruen, the only way a court could uphold a ban on those magazines is if they prevent people like VanDyke from pointing out the holes not in their facts, but in their basic logic.
Lay people don’t read court rulings, let alone dissents. But video is a much more effective medium, and VanDyke’s video is all over social media right now. That’s a problem for the majority’s logic, but it’s good for logic in general.
This week’s links
Speaking of the rules of evidence, reminder that a lot of forensic science is BS
When a bullet is found in a victim or at a crime scene, if police can get their hands on the gun suspected to have fired the bullet, they can do a simple test. Fire a new bullet from the gun, and compare the striations on it to those on the bullet from the crime scene. The principle is that due to microscopic manufacturing inconsistencies, each gun leaves a unique pattern of striations on the bullets it fires, similar to a fingerprint. If the striations on the two bullets match, you know you’ve got the gun that fired the bullet at the crime scene.
Over on his Substack, Radley Balko wrote this week about how bullet matching might actually be bullshit….
The article is fairly damning. It makes the case that while bullet matching does have some predictive value, it falls far short of both the confidence with which it’s portrayed and the certainty that should be required to send somebody to prison.
In a way, this shouldn’t be surprising. Bite mark evidence turned out to be bullshit. So did much of arson fire forensics. Hell, even fingerprints aren’t as reliable as people think.
ProPublica report on NSSF gun buyer data sharing
Followup from a story last October. The tone of the writing implies a lot of nefariousness, and likely overdoes it. But worth a read. H/t Discord subscriber @_.chevron._
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I've long thought/seen things the same as Judge VanDyke. It goes much further though, and I expect he too understands. What he/we are dealing with is Ludditism, nothing more. Their goal is to continue to reduce the technological advancements in firearms step by step; VanDyke discusses it when he references break action single shot rifles. However, it goes even further, at its end they would ban rifled barrels and cartridge ammunition; this is the argument of those that believe that only muskets are covered because of the date of authorship but most of those people dont have the intellectual sophistication to reach the more complete reasoning. In the end they have you armed with that musket and tell you that you still have the right to self-defense, if you cant manage to do so with the implement(s) that we have permitted, well, that's on you.
Following the arguments and the rationale, it is absolutely possible to eventually ban semiautos in effect, if not in fact. Continually ratched down the number of rounds until you get to the minimum required for semiautomatic function: 1 +1 in the chamber. You now have a technically constitutionally protected semiauto with a capacity of two rounds. But who is going to want the cost and mechanical complexity associated with semiauto if you only get two shots? Nobody. They're going to buy a revolver or a two shot derringer or something.
The irony here is that, from a functional perspective, a semiauto is functionally identical to a double-action revolver of the same capacity. One shot for each pull of the trigger.
We also get into the weeds about actual capacity. Recall the NW Safe Act originally sought to reduce mag capacity to seven, which is certainly an argument for the slippery slope, but nobody anywhere has ever explained the rationale for ten rounds, or even seven. I am 100% convinced that there actually is no rationale whatsoever for ten rounds. It was a capacity plucked from the air because ten is a simple single syllable word that sounds official (thanks George Carlin).
The whole "arm" vs "not-arm" situation is exemplified in it's most silly form in the recent ruling on suppressors. NFA defines them as "FIrearms", the GCA bans them from importation, Export is regulated by ITAR (International Traffic in Arms Regulations), but the DOJ argued (successfully) that they are not protected because they aren't really arms.