High-capacity magazines, those holding more than 10 bullets, will remain illegal to buy or sell in Washington, while the state appeals a lower-court ruling that found the ban unconstitutional, the state Supreme Court commissioner ruled Thursday.
Commissioner Michael Johnston, who acts as a gatekeeper before the court can fully consider a case, kept in place an emergency stay he had issued earlier this month.
That stay means Washington’s ban on the magazines, which the Legislature passed in 2022, remains in place unless the Supreme Court rules otherwise.
The law was thrown into doubt this month when a Cowlitz County judge ruled that it violated both the U.S. and Washington constitutions.
In ruling the law unconstitutional, Cowlitz County Superior Court Judge Gary Bashor pointed to the U.S. Supreme Court’s 2022 Bruen decision, in which the court ruled 6-3 that gun regulations must be “consistent with the Nation’s historical tradition of firearm regulation.”
Bashor wrote that the state needs to show a historical law, from around the time of the Second Amendment’s adoption, that justifies its current regulation, and that it had failed to do so.
The implications of the Bruen case have perplexed lower courts across the country and spurred a raft of legal challenges, in Washington and elsewhere, to gun safety laws.
Johnston, in a hearing last week, cited “highly debatable” issues in Bashor’s decision and said the judge was “heavily influenced by some very questionable testimony.”
“Debatability does not turn on a finding that the lower court erred, but rather, whether reasonable minds can differ on the issue at hand,” Johnston wrote in a 34-page opinion issued Thursday. A key question in issuing a stay, he wrote, was how much invalidating the law while an appeal is pending would have a permanent impact if the law is ultimately ruled constitutional.
“The historical record shows that [large-capacity magazines] greatly increase the number of fatalities and injuries inflicted in a mass shooting and that the frequency of such incidents has grown in recent years,” Johnston wrote. “The idea that I could lift the stay and something awful happens with a [large-capacity magazine] that would not have been obtained but for that decision keeps me awake at night.”
He noted during oral arguments that in California, there was a “feeding frenzy” on high-capacity magazines during the week or so that a lower court invalidated that state’s ban.
In Washington, Gator’s Custom Guns, the Kelso gun store at the heart of the litigation, said it sold hundreds of high-capacity magazines in the 90 minutes or so after Bashor’s ruling and before Johnston issued a stay.
Johnston wrote that he sympathized with lawful gun owners, but that the potential harm to the state in invalidating the law is far greater than the harm to gun owners from keeping the stay in place.
“They can buy as many 10-round magazines as they can load into their cars or trucks while this appeal plays out,” he wrote.
Johnston took issue with a number of Bashor’s findings. Bashor ruled the state had failed to produce a “historical analogue” law regulating guns from around 1791, when the Second Amendment was adopted, that would justify its current ban on high-capacity magazines.
But, Johnston wrote, whether to look to 1791 or to 1868 (when the 14th Amendment was adopted, applying the Second Amendment to the states) or to another time entirely was “an unsettled question nationwide.”
If 1868 is the right year, the state “provided ample evidence,” Johnston wrote. If it’s 1791, the state pointed to laws regulating gunpowder, but Bashor rejected that analogue as “nothing more than a fire protection measure.”
Johnston also questioned Bashor’s ruling that a high-capacity magazine even qualifies as an “arm” protected by the Second Amendment right to bear arms.
A high-capacity magazine is a weapon “if you whack someone on the head with it,” Johnston wrote, but in reality it “is an optional component of a firearm, not a weapon or ‘arm’ standing alone.”
“Yes, a semiautomatic firearm will not function without a magazine; however, it will work just fine with a five or ten-round magazine,” Johnston wrote.
Johnston, in his opinion, embarked on a sort of research paper into firearms history, citing such books as “Firearms: An Illustrated History,” “Firearms in American History,” “Shooter’s Bible” and “The Illustrated History of Firearms.”
He points to 1836 as the earliest practical form of magazine, and to 1859 as the first form of magazine for long guns that is still in use today. He outlines the most common weaponry used in both the first and second world wars.
Johnston recounts the tale of Sgt. John Crews, who was awarded the Medal of Honor for charging a German machine gun nest in World War II, killing several soldiers and capturing seven more.
The Germans, Johnston wrote, were armed with a machine gun capable of firing 1,200 rounds a minute, while Crews had a rifle with an eight-shot magazine.
“He won,” Johnston wrote. “Gator’s Guns apparently thinks the typical Washington homeowner needs more firepower than that wielded by Sergeant Crews.”
