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Perhaps the best example came in Duncan v. Bonta, a Second Amendment case decided last November by the en banc Ninth Circuit. VanDyke again found himself at odds with his colleagues, this time over Californias virtual ban on large-capacity magazines. Like other federal circuit courts that have considered similar laws, the majority applied intermediate scrutiny and upheld the restrictions. Judge Patrick Bumatay, one of the courts other conservative members, wrote a lengthy dissent explaining why he thought the Ninth Circuit should abandon the balance-of-interests approach. Instead, he argued, judges should evaluate whether restrictions are rooted in the text, tradition, and history of the Second Amendment.

VanDyke, writing separately, said he largely agreed with Bumatays dissent. So why write his own? He wanted to complain that he thought his colleagues were possessed maybeby a single-minded focus on ensuring that any panel opinions actually enforcing the Second Amendment are quickly reversed. In VanDykes eyes, the majority of our court distrusts gun owners and thinks the Second Amendment is a vestigial organ of their living constitution. He described mass shootings as a statistically very rare harm, akin to airplane crashes, and less lethal overall than car crashes, which kill far more people each year.

Though he engaged with the majoritys legal arguments, he also accused them of operating under their personal biases against guns, and urged the Supreme Court to tighten its Second Amendment rulings to deprive them of any discretion. Ultimately, it is not altogether surprising that federal judges, who have armed security protecting their workplace, home security systems supplied at taxpayer expense, and the ability to call an armed marshal to their upper-middle class home whenever they feel the whiff of a threat, would have trouble relating to why the average person might want a magazine with over ten rounds to defend herself, he opined.

This time, his attacks on his colleagues drew a response. In footnotes in her opinion for the court, Judge Susan Graber turned his comparisons to car crashes and plane crashes against him. A ban on large-capacity magazines cannot reasonably be considered a ban on firearms, she explained, any more than a ban on leaded gasoline, a ban on dangerously designed gas tanks, or speed limits could be considered a ban on cars. And while she agreed on the rarity of airplane crashes, she noted that legislatures recognize that the serious harm caused by even a single crash justifies extensive regulation of the industry, similar to the social and personal impact of mass shootings.

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