“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
Judge Lawrence Van Dyke, nominated by Donald Trump to the federal court of appeals for the Ninth Circuit, issued a video dissent that six of his colleagues wrote was “wildly improper” from a decision upholding a California law banning high-capacity gun magazines. Two other Trump judges, Ryan Nelson and Patrick Bumatay, also dissented in the 7-4 March, 2025 decision in Duncan v Bonta.
What happened in this case?
In 2016, the California legislature and voters in a referendum approved the banning of large-capacity gun magazines in order to help “address mass shootings” and the harm that they have caused. Opponents filed several challenges to the law, including a claim that the statute constituted an improper “taking” under the Constitution, which the Ninth Circuit rejected in an en banc ruling. The appellate court also ruled that the law was consistent with the Second Amendment, but the Supreme Court remanded the case for reconsideration in light of its decision in the Bruen case.
Based on its interpretation of Bruen, a district court ruled against the law and permanently enjoined it as violating the Second Amendment. An en banc panel of the Ninth Circuit, including eleven judges, heard the appeal.
What happened on appeal and why was Judge Van Dyk’s dissent dangerous?
Judge Susan Graber wrote a 7-4 en banc decision that overturned the lower court and upheld the California law banning high-capacity gun magazines for two reasons, based on the methodology in Bruen. Initially, she explained, magazines used with guns are not properly considered “arms” under the Second Amendment, but instead are optional accessories or accoutrements that can be used with guns but do not fall within the protection of the Second Amendment. In addition, she wrote that even if the Second Amendment applied, the law “falls neatly within the Nation’s tradition of protecting innocent persons by prohibiting especially dangerous uses of weapons” and “regulating components necessary to the firing of a firearm.” Like comparable historical laws, she went on, the statute “restricts an especially dangerous feature of semi-automatic firearms” while “allowing all other uses” of such weapons.
Four judges, including Trump judges Bumatay, Nelson and Van Dyke, dissented and would have struck down the law as unconstitutional. Van Dyke went much further. As part of his dissent, he issued an 18-minute video, posted on YouTube, which showed him seated in his chambers in front of a mounted long gun. On camera, he proceeded to pull a half-dozen handguns out of a tote bag, disassemble and reassemble them, and argue that the judges in the majority had a “basic misunderstanding of how firearms work” to emphasize his claim that the high-capacity magazines should be considered part of the weapon and protected by the Constitution.
The unusual video dissent has already drawn significant attention and criticism. Six of the seven judges in the majority issued a concurring opinion written by Judge Marsha Berzon that called Van Dyke’s video “wildly improper.” As Judge Berzon explained, Van Dyke had “in essence appointed himself as an expert witness” in the case, “providing a factual presentation with the express purpose of convincing” people of “his view of the facts without complying with any of the procedural safeguards that usually apply” to expert testimony “while simultaneously serving on the panel deciding the case.” His “procedurally infirm” tactic contradicts basic “principles” that it is the parties to a case, not any of the judges, who present evidence, and “flouts the rules that govern the introduction of evidence.”
The dissent joined by the three Trump judges, if it had been accepted by the majority, would obviously harm the ability of California and other jurisdictions to enact and enforce important gun safety provisions. Van Dyke’s dissent is even more dangerous, possibly setting a precedent that would violate basic principles concerning the proper role of judges in a case. The decision also illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.