Courts

Ninth Circuit Judge Has Had It With Trump Judge's Insulting Dissents

Don't worry, there's only several more decades of this to come.

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Judge Lawrence VanDyke of the Ninth Circuit is an unqualified hack. The ABA already alerted everyone to the former. His infancy of a judicial career so far confirmed the latter. As a Trump appointee to a federal appellate court though, VanDyke has excelled in the modest task which is his charge: writing vitriolic Town Hall editorials to publish in F.4th.

Following up on characterizing his colleagues on the court as criminals –something he actually did — Judge VanDyke wrote a grandstanding dissent ripping the Ninth Circuit over gun regulation and at least one member of the court has had just about enough of this horse hockey.

The exchange, highlighted by Howard Bashman, comes in Duncan v. Bonta, a challenge to California’s ban on large-capacity magazines. Judge VanDyke blasted the majority for upholding the regulation as a minor burden upon the gun rights of Californians. In a separate dissent, VanDyke took time to cite the James Madison quote about judges not being angels and used that as a springboard to declare the majority “possessed.” If you’ve already called them criminals, you’ve got to up the stakes somehow!

Amid all this, Judge Andrew Hurwitz wrote a pointed concurrence that comes as close to saying “shut your piehole” as a respected federal jurist can get.

I join Judge Graber’s opinion for the Court unreservedly. I ordinarily would not say more, but I am reluctantly compelled to respond to the dissent of my brother Judge VanDyke, who contends that the “majority of our court distrusts gun owners and thinks the Second Amendment is a vestigial organ of their living constitution.” That language is no more appropriate (and no more founded in fact) than would be a statement by the majority that today’s dissenters are willing to rewrite the Constitution because of their personal infatuation with firearms. Our colleagues on both sides of the issue deserve better.

It may not be appropriate, but I’m not so sure that isn’t an accurate description of the dissenters.

I recognize that colorful language captures the attention of pundits and partisans, and there is nothing wrong with using hyperbole to make a point. But my colleague has no basis for attacking the personal motives of his sisters and brothers on this Court. His contention that prior decisions of this Circuit—involving different laws and decided by different panels—somehow demonstrate the personal motives of today’s majority fails to withstand even cursory analysis.

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But if he wasn’t capturing the attention of pundits and partisans, how will he get a book deal? We’ve got to keep our priorities straight here!

Indeed, members of the Court not among today’s dissenters have firearms in their homes. Members of this Court not among today’s dissenters have volunteered for service in the active military or the National Guard (the modern “well regulated Militia”) and bore arms during that service.

What’s this “well regulated Militia” he speaks of? Is that, like, mentioned in the Second Amendment? It would be really weird if something that important might be rendered surplasage!

Seriously though, in VanDyke’s dissent, he unironically writes, “it is telling that comparisons between the First and Second Amendment in this latest case have largely been dropped by the majority and relegated to concurring opinions—likely because it gets embarrassing and wearisome to constantly rationalize why we treat the Second Amendment so differently than its close constitutional neighbor.” BECAUSE ONE SAYS “MAKE NO LAW” AND THE OTHER GOES OUT OF ITS WAY TO QUALIFY THE RIGHT BASED ON A STATE’S RIGHT TO ORGANIZE A MILITIA. Not to get all “originalist” or anything, but this is why George Washington rode out to whoop ass on a bunch of yahoos stockpiling guns three years after the ratification of the Second Amendment — the original understanding was always “people can have guns for the purpose of joining the state militia,” because back then recruits were expected to bring their own weapons to the fight, “but this protection doesn’t apply if you’re operating outside that structure.”

On that note, I’ve said before and I’ll say again: some state should just make private gun ownership (exclude law enforcement and other civil servants for this purpose) contingent on the owner giving the state the National Guard standard of one weekend a month and two weeks a year in service. If the gun owner isn’t fit for combat there are plenty of administrative, logistical, and humanitarian relief jobs where the National Guard could use help. Just force the textualists and originalists to stare at the words of the Second Amendment and openly say, “we don’t care what ‘text’ or ‘original’ even means.”

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However infrequent mass shootings may be, hardly anyone is untouched by their devastation. The Ninth Circuit lost one of its own, Chief Judge Roll of the District of Arizona, to precisely such a shooting, notwithstanding Judge VanDyke’s assumption that federal judges are somehow immune from such dangers. Other members of the Court have lost family and friends to gun violence. I recount these matters of common knowledge not, as Judge VanDyke suggests, to import my personal experiences into the decision-making process in this case, but instead to emphasize that despite the alleged “infrequency” of mass shootings, they have effects far beyond the moment that are the proper subject of legislative consideration. And, to the extent that the frequency of such carnage is relevant, surely the people and their elected representatives are far better situated in the first instance than we to make that determination. The people of California should not be precluded from attempting to prevent mass murders simply because they don’t occur regularly enough in the eyes of an unelected Article III judge.

This is actually a recurring and disturbing line of conservative legal movement thought. A couple months ago, Professor Josh Blackman wrote a piece attacking former Judge J. Michael Luttig for joining a gun regulation amicus brief, dismissing the judge’s legal analysis by branding it nothing more than a byproduct of Luttig’s personal tragedy of losing his father in a carjacking. The gun-wing playbook is a one-two punch of “you judges don’t know how the real world works” and if they do have some experience with the real world, “well, then you’re just letting your personal experience cloud your judgment.” The latter argument leveled in the most disrespectful and uncalled for manner possible.

And that’s the problem for Judge Hurwitz’s vision of a court grounded in mutual respect and collegiality. The last administration made it clear that the ideal GOP appellate nominee should have all of Scalia’s sneering contempt and none of his actual cleverness. Just planted pots churning out MAGA op-eds from the bench. Think of these judges as the “judicially genteel” version of Lauren Boebert and Marjorie Taylor Greene. This obviously doesn’t apply to every Trump appointee at every level (trust me, there are some very good judges among the whole crop)… but a lot more than it should.

Makes you think we might need some fundamental reform to check the amount of damage one-off administrations can do to the federal judiciary, huh?

Until then, the Ninth Circuit should just expect to routinely get compared to goat molesters or whatever Judge VanDyke uses to frame his next dissent.

Earlier: NEWSFLASH: Unqualified Federal Judges Are… Unqualified
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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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