CALP-March Cases & Tidbits: Judge Van Dyke’s video dissent

Tim Kowal March 26, 2025

Judge VanDyke made a YouTube video to accompany his dissent in Duncan v. Bonta, the Second Amendment case in which a Ninth Circuit en banc panel upheld California’s ban on handgun magazines over 10 bullets. Judge VanDyke’s video shows him disassembling a gun, comparing accessories, and using a portion of oral argument to claim his point wasn’t being heard. The issue: If a magazine is just an accessory not entitled to Second Amendment protection, then basically the entire gun is just a bunch of unprotected accessories.

Jeff and Tim react:

Can a federal judge issue a TikTok-style dissent? If so, can lawyers start footnoting their briefs with YouTube links?
Does a video “illustration” that relies on props cross the line into new fact-finding? Or is it just illustrative of a legal point about distinguish an “arm” from its “accessories”?
Are judges likely to do more of these dissents? Maybe explainer videos would be useful in patent cases (comparing iPhone and Samsung phone designs), or product defects, or police excessive-force cases?
And practical questions: Will the video—and transcript—show up in Westlaw searches? How do you cite to something side during a dissent video?

We also discuss a California Supreme Court ruling clarifying that malicious prosecution claims, even against lawyers, get the full two-year statute of limitations. Not the shorter one-year.

And finally, an update from the J&J v. Trump litigation saga: a judge opens with a warning about the “priceless” nature of attorney integrity. The administration then invoked state secrets. Contempt proceedings now loom. Stay tuned.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Other items discussed in the episode:

Video Dissent: https://bsky.app/profile/rmfifthcircuit.bsky.social/post/3lkt7yftgqc2g

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

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"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

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— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

— Rubin v. Green (1993) 4 Cal.4th 1187

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

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"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

CALP-March Cases & Tidbits: Judge Van Dyke’s video dissent

Other items discussed in the episode:

Related Posts:

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"A judge is a law student who grades his own papers." — H.L. Mencken

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia