On Thursday, U.S. Court of Appeals for the Ninth Circuit Justice Lawrence VanDyke issued a video dissent sharing his opinion that the court demonstrated a misunderstanding of firearms in Duncan v. Bonta.
In the Bonta opinion which was issued Thursday, the Ninth Circuit majority held that a magazine holding more than ten rounds is not an arm protected by the Second Amendment.
The majority wrote:
We reject Plaintiffs’ Second Amendment challenge for two independent reasons. First, the plain text of the Amendment protects the right to bear “Arms,” not accessories to firearms that are neither arms themselves nor necessary to the ordinary functioning of a firearm. Because large-capacity magazines are neither weapons nor accessories that are necessary to the operation of a weapon, the Second Amendment’s plain text does not protect possession of large-capacity magazines.
VanDyke dissented in writing with the majority decision and followed his written dissent with a video containing in-depth explanation of what he believes the majority missed or did not understand.
VanDyke noted, “California acknowledges that a magazine is necessary to make a firearm function, but they argue that because you can replace the standard magazine with one that holds fewer rounds — ten rounds or less — then these higher capacity magazines are not an arm, thus wholly unprotected by the Second Amendment.”
He warned that the “exact same argument” would apply to almost every part of the firearm, which means “essentially nothing on [the] firearm would be protected by the Second Amendment.”
VanDyke took a similar path in his written dissent, noting:
As another example, most modern handguns have an automatic cycling mechanism that, upon firing, expels the spent cartridge, loads a new round, and resets the trigger. But plenty of firearms do not have an automatic cycling mechanism. The automatic cycling mechanism is “necessary” to make a semi-automatic firearm “operate as intended,” but it is not necessary to make, say, a revolver or a bolt-action or a single-shot break-action firearm operate. Could California ban all semi-automatic handguns by applying the majority’s logic that, because the automatic cycling mechanism is not required to make a handgun work, it’s simply not protected by the Second Amendment?
He also pointed out:
It is so easy to demonstrate the conceptual failings of the majority’s new test that even a caveman with just a video recorder and a firearm could do it. For example, while the majority concedes that “triggers” are firearm components due at least some Second Amendment protection, the majority’s misguided test cannot support that conclusion. Even something as essential to the firearm as a manufacturer-issued trigger could be considered an unprotected “accessory” under the majority’s view because that particular trigger is not essential to the function of the firearm, as it could be swapped out for one with less effective, and therefore less “dangerous” attributes.
The case is Duncan v. Bonta, No. 23-55805 in the U.S. Court of Appeals for the Ninth Circuit.
AWR Hawkins is an award-winning Second Amendment columnist for Breitbart News and the writer/curator of Down Range with AWR Hawkins, a weekly newsletter focused on all things Second Amendment, also for Breitbart News. He is the political analyst for Armed American Radio, a member of Gun Owners of America, a Pulsar Night Vision pro-staffer, and the director of global marketing for Lone Star Hunts. He was a Visiting Fellow at the Russell Kirk Center for Cultural Renewal in 2010 and has a Ph.D. in Military History. Follow him on Instagram: @awr_hawkins. You can sign up to get Down Range at breitbart.com/downrange. Reach him directly: [email protected].
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