Yesterday, March 20, 2025, the en banc United States Court of Appeals for the Ninth Circuit issued its long-awaited decision in Virginia Duncan v. Rob Bonta, No. 23-55805, upholding California’s ban on firearm magazines capable of holding more than ten rounds by a 7-4 vote. Governor Newsom celebrated. I understand why he did. But the majority opinion written by Judge Susan Graber rests on a theory that is constitutionally incoherent, and four of her colleagues on that same court explained exactly why.
The Majority’s “Not an Arm” Escape Hatch
Judge Graber’s central move is straightforward but wrong. The majority holds that large-capacity magazines are “optional accessories to firearms” — that a gun operates “as intended” without them, making the magazines themselves something other than “arms” within the meaning of the Second Amendment. Because Bruen, 597 U.S. 1 (2022), only triggers its historical-tradition analysis when the challenged object is an “arm,” the majority concludes that the inquiry never even starts. California wins before the legal test begins.
The problem is that this reasoning proves far too much. Under the majority’s logic, a revolver’s cylinder is an optional accessory — the underlying mechanism still exists without it. The bolt on a bolt-action rifle is just a cycling component. The spring in a semi-automatic pistol’s feeding system is a replaceable part. The majority’s test asks whether a firearm functions “as intended” without the component, but magazine-fed semi-automatic firearms were designed by their manufacturers to function with magazines. Separating the feeding mechanism from the arm and declaring it constitutionally unprotected is not a description of reality — it is a conclusion in search of a justification.
District of Columbia v. Heller, 554 U.S. 570 (2008), made clear that “arms” in the Second Amendment context include firearms in common civilian use and, by implication, the components that make them functional for lawful purposes. Nothing in Bruen narrowed that protection. The majority’s cramped reading of “arms” is a doctrine of judicial convenience, not constitutional fidelity.
VanDyke Fires Back — With Receipts
Judge Lawrence VanDyke did something that immediately became the most-discussed judicial act of the year: he filmed himself in his chambers handling and demonstrating several firearms — including an AK-pattern rifle — and published the video alongside his written dissent. His purpose was to demonstrate, with direct mechanical evidence, that a magazine is not a bolt-on “optional” add-on but an integral operating component without which the firearm either will not cycle or functions in a profoundly degraded state.
Judges Marsha Berzon and Sidney Thomas took issue with VanDyke’s video, arguing he had introduced extra-record facts and appointed himself as an expert witness without complying with procedural safeguards. That criticism misses the point. VanDyke was not offering new factual testimony for the jury’s consideration. He was demonstrating that the majority’s own legal premise — that a magazine is “optional” — is demonstrably wrong on its face. It was a pedagogical exercise, not a factual submission, and it made the majority’s accessory theory look as thin as it is.
Judge Ryan Nelson’s written dissent stated the constitutional point directly: “the majority’s decision flouted Bruen and spurned the statutory procedure for en banc proceedings.” Judge Patrick Bumatay dissented separately to the same effect. Together, these four judges made clear that the en banc majority had not engaged faithfully with what the Supreme Court actually required.
A Circuit Split the Supreme Court Cannot Ignore
This ruling does not exist in a vacuum. The Ninth Circuit, along with the First and Seventh Circuits, has now upheld large-capacity magazine bans as constitutional. The D.C. Court of Appeals, in its Benson ruling, reached the opposite conclusion — striking down the District’s magazine ban as inconsistent with the Second Amendment’s text and history. That is a genuine circuit split on whether a specific category of widely-owned firearm accessories can be banned.
The cert petition from Duncan was filed with the Supreme Court in August 2025. The case is now Duncan v. Bonta, 25-198, on petition. It presents a clean vehicle: a direct challenge to the most widely-cited state magazine ban in the country, in the circuit with the most aggressive record of upholding gun restrictions, with a dissent that exposes the constitutional flaw in the analysis below. If the Supreme Court is going to tell the lower courts what Bruen actually demands for magazine bans — and the post-Bruen chaos in the circuits suggests it must — Duncan is the right case to do it.
What Comes Next
Newsom can celebrate. Today belongs to him. But the en banc Ninth Circuit’s decision is not the final word on California’s magazine ban — it is the beginning of the Supreme Court portion of this fight. The circuit split is real, the dissents are strong, and the question of whether the most common magazine configuration in civilian ownership can be banned outright is one the Court will eventually answer.
My read on where this ends: the Ninth Circuit got it wrong, and the Supreme Court will say so. The only question is the timing.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.