The ability to buy a magazine that holds more than 10 rounds for a firearm is temporarily on hold in Washington. Whether that ban continues may rely on whether the state’s Supreme Court commissioner is as persuaded as a Cowlitz County judge that such a law violates the Second Amendment and various historic precedents.
In a hearing Wednesday, Commissioner Michael Johnston seemed somewhat skeptical of the arguments underpinning Superior Court Judge Gary Bashor’s decision that the 2022 law against large-capacity magazines violates the federal and state constitutional rights to bear arms.
Last month, Bashor blocked a law banning the sale, purchase or manufacture of such magazines. Within hours, the state had appealed to the state Supreme Court, and Johnston temporarily stayed Bashor’s order, which meant the ban went back into effect. Johnston must decide what comes next.
Before listening to the lawyers for the state attorney general’s office and Gator’s Custom Guns, the Kelso store that filed the lawsuit, Johnston took time to tell anyone watching online or TVW that he’s not some gun-hating pacifist. He grew up on a Spokane-area farm and learned to shoot when he was 9, and has handled everything from a .22 to an AR-15.
“I’m a gun enthusiast,” he said. He also already had done extensive research on the history of firearms and the Second Amendment for an earlier challenge over an assault weapon ban.
Part of the state’s contention is that large-capacity magazines are not “arms,” based on the text of the Second Amendment. Lawyers for Gator’s Guns, which brought the suit, contend that they definitely do fall under that definition.
It’s a debatable point, considering that when the Second Amendment was ratified in 1791, there were no large-capacity magazines or any magazines at all. Loading a flintlock rifle involved pouring powder, a ball and wad into the muzzle.
But a U.S. Supreme Court ruling requires lower courts to weigh restrictions to constitutional rights under a historic context and view them against those in place in 1791.
As there were no large-capacity magazines back then, there were no restrictions on them.
This could cause real conundrums in cases involving other constitutional rights.
For example, can Congress limit what people write or say on the internet when there was no internet in 1791? Can King County prohibit pro-Palestinian demonstrators from blocking the entrance to Sea-Tac when there were no airports in 1791?
A shooter with a 10-round magazine would have to reload more times than a shooter with a 30-, 50- or 100-round magazine, Johnston said. It’s possible the Legislature could limit the size to protect the public by preventing large-scale slaughter.
But large-capacity magazines also can be important for self-defense, Austin Hatcher, an attorney for Gator’s Guns, argued.
Hatcher also argued the threat to large-capacity magazines in the state is speculative: “In Washington, there’s been no mass shootings perpetrated by large-capacity magazines.”
Actually, not true. When Dean Mellberg went on a rampage at the Fairchild Air Force Base hospital in June 1994 — killing four people and wounding 22, including a pregnant mother who subsequently lost the unborn child — he used a semi-automatic rifle with a 75-round drum magazine.
Johnston didn’t bring up Mellberg, but he did seem dubious about Hatcher’s argument.
“Is there a force field around Washington?” he asked. “The threat is not really all that speculative, as a general threat.”
Johnston said he has more research to do and expects to render a decision this week. He won’t be deciding whether Bashor was right or wrong, but whether there are debatable issues that should go directly to the state Supreme Court or first to the Court of Appeals.
Last Wednesday, he said, there seemed to be “some highly debatable issues.”
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