Ninth Circuit Upholds California Mag Ban, But Not Without Epic Dissent From Trump-Appointed Judge

Thursday’s decision by the Ninth Circuit Court of Appeals upholding California’s ban on “large capacity” magazines wasn’t exactly unexpected, but the video dissent from Judge Lawrence Van Dyke was a curveball that I doubt anyone saw coming.

An en banc panel had previously ruled the state’s magazine ban in line with the Second Amendment, but SCOTUS vacated that decision and remanded the case back to the appellate court after Bruen in 2022. In turn, the Ninth Circuit sent the case back down to U.S. District Judge Roger Benitez, who’d previously declared the ban unconstitutional. Benitez reached the same conclusion the second time around, and just like before an en banc panel has now overruled the West Coast “saint” of the Second Amendment. 

“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.”

The judges wrote 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.”

Under the Ninth Circuit’s argument, virtually all detachable magazines, regardless of their capacity, would fall beyond the Second Amendment’s protections because they’re “accoutrements” and not arms. The Court tried to get around that absurdity with its argument about a national tradition of prohibiting “especially dangerous uses of weapons”; establishing a whole new test that flies in the face of existing Supreme Court precedent. Going back to Heller the Court has held that arms that are in common use for lawful purposes are, prima facie, protected by the right to keep and bear arms. Magazines that can hold more than ten rounds aren’t just common, they’re ubiquitous, and they are possessed and used by far more lawful gun owners than violent criminals or mass shooters. 

Three judges appointed during President Donald Trump’s first term authored dissenting opinions. 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 included in his dissent a video of himself operating firearms in his chambers. Seven of the eight judges who were part of the majority opinion joined in an opinion calling the video “wildly improper,” both because the video introduced facts that were not part of the record and because VanDyke appeared to be attempting to offer expert testimony.

It may be wildly improper in the eyes of VanDyke’s gun-controlling colleagues, but frankly I’d like to see more of this. Most folks aren’t going to read through more than 100 pages of legal arguments, but they’d be much more inclined to watch an 18-minute video on YouTube.

I hope we see more video supplements to opinions. On both sides. I want antigun judges to explain their understanding of firearms to us.

— Kostas Moros (@MorosKostas) March 20, 2025

I agree. This is a way of bringing judicial opinions to the masses, and VanDyke should be applauded for his outside-the-box thinking instead of being excoriated by his liberal colleagues. 

“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,” wrote senior Judge Marsha Berzon, a Clinton appointee.

I’m surprised she could write that while clutching her pearls so hard. 

With the en banc decision in hand, the plaintiffs in the Duncan case can now take their appeal to the Supreme Court. In fact, since the case has been fully decided on the merits, that’s the only option left for those who want see California’s magazine ban overturned. It will take a few weeks for that cert petition to be filed, and the state of California will have another few weeks to respond, but the justices should be able to consider the case in conference and decide whether to grant cert before they break for their summer recess in June. There’s already a magazine ban case that’s been heard in conference multiple times (Ocean State Tactical v. Neronha), but that lawsuit has yet to be fully decided on the merits, so it’s possible that SCOTUS could wait until Duncan arrives on its doorstep to take up a mag ban case. 

It’s also possible, of course, that the Supreme Court could bypass both of these cases and allow California’s prohibition to remain in effect. I don’t think that’s the likely outcome, but given the hesitation we’ve seen from the justices when it comes to accepting an “assault weapon” ban challenge, anything is possible.