In a decision that could well find itself before the Supreme Court, the United States Court of Appeals for the Ninth Circuit upheld California’s ban on “large capacity” magazines. In a rare move, Judge Lawrence Van Dyke offered a video dissent to the majority opinion.The en banc panel previously upheld the state’s magazine ban, but the Supreme Court vacated that decision and remanded the case in light of the Bruen decision in 2022. The Ninth Circuit then returned the case to U.S. District Judge Roger Benitez.Benitez again ruled that the law was unconstitutional, a prior position that he viewed was strengthened by the Bruen decision.
The Ninth Circuit then, again, overruled the lower court.
In a 7-4 decision authored by senior circuit Judge Susan Graber, an appointee of former President Bill Clinton, the majority wrote that “a large-capacity magazine has little function in armed self-defense, but its use by mass shooters has exacerbated the harm of those horrific events.” She added:
“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.”
In a belt-and-suspenders approach, the court further ruled 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.”
Three judges appointed by President Donald Trump wrote stinging dissents. 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 went further to include an actual video in which he handles guns and accessories to show why he believes the distinction between a gun and an accessory is illusory:
The judge emphasized that he was not offering the video as new factual evidence. However, it sounds much like the testimony that an expert witness would give at trial. That brought an objection from his colleague, Judge Berzon:
“True, the prejudice to the parties here is arguably minimal because Judge VanDyke has prepared his video in support of a dissent. But if a dissent can rely on a judge’s recorded factual presentation, nothing prevents a majority opinion from doing the same thing. I therefore write separately in the hope that in the future my colleagues, whether in the majority or dissent, will do exactly and only that: write. And, 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, expert and otherwise.”
The inclusion of the video is highly irregular and many judges would likely look dimly at the use of such demonstrative evidence in an appellate dissent.
The case offers another opportunity for the Court to address the outward limits of the Second Amendment. Blue states are moving to limit a variety of devices or components deemed “accessories.” If allowed to stand, it could prove a significant area of contraction for the protections for gun ownership.
The case can now be appealed to the Supreme Court, again. It will join another magazine ban case in Ocean State Tactical v. Neronha, which is awaiting a decision on whether it will be picked up by the Court.
Seeing as how the function of the 2nd Amendment is to prevent usurpations of the government, we should then not alllow the military to have ” high capacity” magazines or automatic weapons.
John Smith completed the Book of Mormon in 1829. Does this mean, that Mormonism is not protected under the First Amendment merely because it hadn’t yet existed at the time of the Founding ? Similarly, are communications using Telegraph, Radio, Television nullifiable since they hadn’t existed at the time of the Founding ? Certainly, all that was present was the mechanical printing press. The notion is preposterous which the 9th circuit uses and if the Supreme Court does not reign that Court in, it will de-legitimize itself. In view of the ninth and tenth amendments to the US Constitution, the 9th Circuit has no delegated authority to make such a ruling. Never forget, people didn’t die for your Liberty, the had to kill for it.
So police should follow suit. Why do they need high capacity magazines? Oh wait to stop criminals with high capacity mags. I get it. They can to protect themselves, but citizens can’t protect themselves the same way. I got it. Thanks judge.
I got my first gun in Ca in 1992. Standard magazine size was 15 with my Beretta 92F. Ca are the ones who REDUCED the amount of ammo a magazine can hold. The gun manufactures choose the capacity level for a reason. State bureaucrats have no idea of weapon systems or what configuration in which they should be sold. I hope this goes to the Supreme Court due to their absolute ignorance and dubbing the label “high capacity” magazine. The REDUCED the STANDARD magazine to use a new definition for arguments. Liberal logic is absolutely idiotic.
You nailed it. We here in the PRC are now condemned to using diminished capacity magazines while others can use standard capacity magazines.
Liberal ‘logic’ is idiotic because it is backwards, it starts with the conclusion rather than with the premise.
The 9th Circus has never been more spot on. Of course, the Founders said you had a right to guns, but they NEVER said you had a right to bullets. So, THERE, take that!
Wrong. It’s arms, and bullets are arms.
It is good that you write anonymously. If you didn’t then everyone would know who possesses such ignorance.
You can be clubbed to death with a gun. Think about that lib.
SHALL NOT BE INFRINGED
Remarkably flawed perspective on magazine capacity. My state also banned large capacity magazines. I am hopeful it will go to SCOTUS. We really need to speed up the legal process. It takes way too long.
This joins MANY INCOMPETENT rulings, like Miller which declared a “short barreled shotgun has no military purpose,” (ignoring the decades of actual military and naval use as the blunderbus, trenchguns, short shot guns in a myriad of wars like WW1, WW2, and on and on….). It’s staggering how uneducated and ill-informed leftist judicial activists are. They offer no retort to the expressly written “…shall not be infringed…” in writing their CLEAR infringements. Magazines of 10+ capacity probably represent the majority of magazines in the USA and globally. What is a “large capacity” magazine, and how is it not a slippery slope arbitrary definition? Who decides how many rounds in a magazine are needed for self defense, anyway? Furthermore, the 2A is not about “self defense,” it is about the security of a free state. I could go on, but these “justices” have very low mental horsepower and are driven by the sick, twisted, illogical emotional drivel leftist agendas and live behind layers of walls and heavily armed security (with standard capacity magazines in guns they wish to ban) that insulate them from their horrific rulings. They really need to be impeached and disbarred for their decisions that are completely contrary to STATE and FEDERAL Constitutional protections, having demonstrated their illiteracy and failure to follow their own oaths of office.
Well, this certainly will not infringe on anyone’s rights since it will also apply to criminals as well and they won’t be able to shoot at you with more than 10 bullets at a time, so everyone will be equally armed with a sensible reduction in firepower and there will be peace and happiness in all the land!
Nope. Your logic fails. The Parkland shooter used 10 round magazines, because the standard capacity magazine would not fit in his backpack according to his statements. The “high capacity” magazine argument is a canard. These are standard capacity magazines as designed for the firearm. Swapping out a magazine whether it is a standard capacity or a 10 round or something less does not change the firearms lethality when used in the commission of a crime. Guns don’t kill, people kill. Focusing on trivial aspects of a firearm would not change what is in one’s heart when using a firearm to commit a crime. An inanimate object cannot function without a human input. The problem is not law-abiding citizens, its the criminals whose intentions are to commit violence.
Fuk them
I guess these A-hole judges don’t understand what “shall not be infringed” means.
So what’s the definition of “large capacity”?
The problem with liberals is they have liberal definitions. They also fail to acknowledge that criminals or mentally deficient people do not obey laws anyway.
People wonder how the Deep State controls Chief Justice John Roberts like a well-trained puppet to do their bidding on command. Many people have accurately observed that Roberts has no values or principles, but they don’t understand how this could be since he is purportedly a “conservative.”
But John Roberts is no conservative. That was just a carefully crafted front to help him get to the place that he is today. The fact is that the Deep State OWNS John Roberts because they have the dirt on Roberts that Roberts still desperately attempts to conceal to this day. They have the compromising photos and videos of John Roberts in his younger days that prove without doubt that John Roberts is a homosexual. However, even without those photos and videos of Roberts’ homosexual acts, which would put J. Edgar Hoover to shame, there is ample evidence of Roberts’ homosexuality, as shown here, for example:
https://underneaththeirrobes.blogs.com/main/2005/08/more_grist_for_.html
Now, when the Chief Justice of the United States of America is being blackmailed to keep his homosexuality a secret by the Deep State to do their bidding and that Chief Justice obediently complies with their every demand, that means we have a Constitutional Crisis to deal with.
I remember during his nomination process that there some early photos of him with a magnum-PI style mustache, with some other guys and a birthday cake. It seemed super gay at the time. Good luck finding this photo today – I’ve tried using numerous engines.
Once again JT obfuscates the facts…”If allowed to stand, it could prove a significant area of contraction for the protections for gun ownership.”
This ruling does nothing, that is NOTHING, (does JT know what the word NOTHING means?) about gun ownership. JT is factually incorrect. Gun ownership was not affected by this ruling in the slightest.
JT, are you have cognitive issues?
I think he was talking in terms of, give an inch they will take a mile
how about “for the protections for …” – you ignored that part. cognitive issue?
What a foolish ignorant comment
Many good comments on both sides in the comments. One take-away: A lot of you guys spell like Geo. Washington.
James Boasberg is unquestionably a radical anti-America so-called “Judge” who is a throughly corrupt, filthy, depraved, degenerate piece of scumbagwormmeat who needs to be removed permanently from the Judiciary. And the same goes for Boasberg’s scumbag protector John Roberts:
The radical anti-America Judiciary are out of control and the corrupt scumbagwormmeat justices and judges need to be removed permanently from the Judiciary: