Trump judge offers gun-toting YouTube dissent in California gun case

A Trump-appointed appellate court judge who disagreed with a decision by his colleagues to uphold California’s ban on large-capacity ammunition magazines responded in a highly unusual way Thursday, posting a “dissent video” to YouTube of him manipulating firearms in his judicial chambers.

At the start of the nearly 19-minute video, Judge Lawrence VanDyke — who was confirmed to the U.S. 9th Circuit Court of Appeals in 2019 — blasted his colleagues’ conclusion that the state ban on magazines holding more than 10 rounds is constitutional because it essentially restricts an accessory to semiautomatic firearms, not the firearms themselves.

“I think anyone with a basic familiarity with firearms could show you that this attempted distinction is simply inconsistent with reality,” VanDyke said — before quickly making it clear that he would be providing such a tutorial himself.

“I originally planned to explain all of this in writing in my opinion on why the argument doesn’t make sense, but it occurred to me that in this instance, showing is much more effective than telling,” VanDyke said. “As the old saying goes, a picture is sometimes worth a thousand words. And here I hope you will agree that a video is at least worth that much.”

The move immediately drew the ire of VanDyke’s colleagues, who called the video “wildly improper” and blasted VanDyke for somehow misconstruing his role as an “expert witness” instead of a member of the panel deciding the case on its legal merits. It also drew sharp criticism from outside legal scholars, one of whom said judges “shouldn’t be striving to be social media influencers.”

Dressed in his black judicial robe and seated at a desk with a gun mounted on the wall behind him, VanDyke said it was his first time making such a video, and apologized for the poor quality.

He said he had “rendered inoperable” all the guns he was about to use in his demonstration. And he said he was making the video “not to supplement the factual record that we are using to decide this case” — something that would be squarely outside the scope of his authority as an appellate judge — but to provide a “rudimentary understanding” of why his colleagues in the court’s majority were wrong in their own analysis of the facts.

“I’m sure I could explain all of this in writing without being accused of improper fact-finding, but it’s obviously much more effective to simply show you,” VanDyke said.

He then handled several handguns, discussing their features — magazines, sights, grips, takedown levers, etc. — and explaining how to reassemble one in a way he said would make it “more dangerous” if “misused.”

The point, VanDyke said, was to “illustrate” his central argument in the underlying case: that, if the majority’s assessment of a large-capacity magazine being an accessory were legitimate, “the exact same argument would apply to essentially every part on this firearm, which would mean that essentially nothing on this firearm would be protected by the 2nd Amendment.”

VanDyke’s argument is essentially a slippery-slope argument. By his estimation, if the majority opinion is allowed to stand, more and more parts of firearms could be banned until the ability to effectively arm oneself in California is completely lost.

The majority opinion he railed against, of course, took a different view.

Circuit Judge Susan P. Graber, writing for the majority, found that California’s ban on large-capacity magazines was constitutional precisely because it “restricts an especially dangerous feature of semiautomatic firearms — the ability to use a large-capacity magazine — while allowing all other uses of those firearms.”

“So far as California’s law is concerned, persons may own as many bullets, magazines, and firearms as they desire; may fire as many rounds as they like; and may carry their bullets, magazines, and firearms wherever doing so is permissible,” Graber wrote. “The only effect of California’s law on armed self-defense is the limitation that a person may fire no more than ten rounds without pausing to reload, something rarely done in self-defense.”

State officials applauded the ruling. Chuck Michel, an attorney for the plaintiffs who challenged the law, said they would ask the U.S. Supreme Court to review — and vacate — the decision.

VanDyke’s unusual and perhaps unprecedented decision to cut a video explaining his dissent was met with derision from his colleagues.

Judge Marsha S. Berzon, an appointee of President Clinton, wrote a separate opinion — joined by five other judges — expressly denouncing VanDyke’s “wildly improper” and “novel form” of dissent.

Berzon said VanDyke’s video “improperly relies on factual material that is unquestionably outside of the record” established by the litigants in the case in the lower court, which is not something appellate judges are supposed to do.

“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,” Berzon wrote, with clear exasperation.

She wrote that VanDyke had “in essence appointed himself as an expert witness” in the 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.”

Berzon wrote that the panel was “right to ignore” the video in the matter at hand, which she said the rules of the court do not allow, but that she also felt it necessary to rebuke at length “lest the genre proliferate.”

More worrisome than VanDyke’s violation of established rules for placing dissents on the record, Berzon wrote, was his decision to put himself forward as some kind of expert on guns, when no such conclusion was or ever could be reached in the case at hand, given his post on the panel deciding the outcome.

“Myriad rules govern the submission and presentation of expert testimony, all of which Judge VanDyke has bypassed by introducing his factual testimony on appeal and alongside his dissent,” Berzon wrote.

Berzon was joined by three other Clinton appointees and two appointees of President Obama — including Chief Judge Mary H. Murguia, who helps to oversee other judges, including as chair of the Judicial Council of the 9th Circuit.

It was unclear Friday whether the video would lead to any other reprimand, or reconsideration or reminder of court rules. Katherine Rodriguez, a court spokeswoman, declined to comment when asked.

Jacob Charles, an associate professor of law at Pepperdine Caruso School of Law who has studied and written about 9th Circuit case law around guns, said he had never seen anything like VanDyke’s video before — and for good reason.

“In my opinion, it is beyond question inappropriate. I don’t think there’s any other way to characterize that than as performative advocacy,” Charles said. “Judges shouldn’t be striving to be social media influencers.”

Charles said courts for centuries have relied on written opinions, and VanDyke’s video “seems more like an attempt to own the libs than fulfill the judicial role of engaging in good-faith dispute resolution.”

In his own written dissent, VanDyke defended his video. He also offered more of the condescension toward his colleagues that defined the video — at one point referring to them as his “amateur gunsmithing colleagues” and blasting their decision as inept.

“It is so easy to demonstrate the conceptual failings of the majority’s new test,” he wrote, “that even a caveman with just a video recorder and a firearm could do it.”