We Need To Talk About What The VanDyke Video Dissent Gets Right

You may have heard in passing the joke that America has more guns than it has people. First, it isn’t a joke. Second, Judge Lawrence VanDyke of the Ninth Circuit is one of those people.

The judge might not be deemed qualified by the ABA, but he’s so gun qualified that he’d be easily confused for a vendor at a gun mart. He recently dropped a ~19 minute “Well, actually ” on gun parts and their relative necessity for a functioning gun to put the panel members who voted against him in their places.

I’ll be honest — I think it’s kind of great. If you haven’t seen it yet, you can (and should) watch it on YouTube:

Let’s get the obvious out of the way. We should consider ourselves lucky that VanDyke’s first foray into visual explanations of his dissents concerned the Second Amendment and gun parts rather than describing the differing prison sentences for crack and powder cocaine by using baking soda, a scale, and a stove.

There’s also the problem of him presenting this dissent in his robe and chambers. VanDyke claims that there should be no real difference between him dissenting by text or video, but there are at least two big ones. The first, brought up by Senior Judge Berzon, is that circuit rules state that dissents must be written. And he did write an opinion. Now, there is the question of if the video is just an appendage that could be done with or without or if its inclusion so taints the entire writing that the whole thing needs to be regulated, but let’s not get ahead of ourselves just yet.

One thing the video didn’t capture is any attempt to avoid even the appearance of impropriety. The visual of a federal judge dumping a baker’s dozen of hand guns from his handy-dandy Ninth Circuit knapsack gives off gun superfan, not neutral balls and strikes caller when it comes to boomsticks. Even if his written opinion had included a strange ode to the skill it takes to mow down innocents a la Clarence Thomas, it would still come off as less biased than the gun Lego set show and tell above.

Now that that’s all out of the way… can we focus a little on how great this video is? It was organized, concise, displayed proper trigger discipline, used demonstrations to make concrete what would otherwise be abstract or foreign concepts — the iron sight switch to the laser sight show and tell was phenomenal. All in all, a great display of pedagogy. Now does he make a good point? I think he does. But the larger issue is this goofy path of arms restriction the state thought was worth going down.

What even got us to this point? I think this predicament is a direct result of two Supreme Court cases. The obvious one is Bruen, and the second case is Loper Bright Enterprises v. Raimondo. Before Bruen, we understood there were some arms that the government can regulate — no civilian rocket launchers. After Bruen, a regulating government has to resort to what is effectively mereology. If a state wants to make it harder for people to go rogue and kill innocents en masse, they now must resort to arbitrary line drawing over whether appendages or individual parts of guns amount to the same thing as regulating guns as a whole. VanDyke’s Gunology 101 seminar explains that arms as we know them are effectively assemblages of appendages and, as such, it is impossible to realistically see semi-automatic or automatic guns as separate from their “parts.”

We should be applauding VanDyke for being ahead of the curve! Stick with me for a second. Remember when we as a community — rightly — ridiculed Gorsuch for making the rookie mistake of mistaking nitrogen oxide (known air pollutant) for nitrous oxide (laughing gas) in his opinion? The hero we deserve is at our doorstep, and now we mock him? In a world without Chevron deference, we need judges to give 19-minute impromptu Khan Academy-level nuanced part/whole distinctions and their significance toward firearm regulations. Because let’s be clear — VanDyke’s argument is that the majority is mixing up their nitrogen and nitrous all over their appendage decision.

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.