Washington Judge Declares Large-Capacity Magazine Ban Unconstitutional, Blasts State’s Misleading Arguments

A superior court judge in Washington declared that the state’s 2022 gun law banning the sale of large-capacity magazines is unconstitutional in a ruling on Monday that excoriated the state for making misleading, tortured, irrelevant, and unconvincing arguments.

Cowlitz County Superior Court judge Gary B. Bashor found that Washington’s ban on the sale of magazines with more than ten rounds runs contrary to the Supreme Court’s landmark Heller and Bruen rulings. He issued an immediate injunction prohibiting the state from enforcing the ban.

But Washington’s Democratic attorney general, Bob Ferguson, filed an emergency motion to the state supreme court, which was granted Monday night, keeping the ban in effect for now. In a prepared statement, Ferguson called Bashor’s ruling “incorrect.”

“The law is constitutional,” he wrote. “It is also essential to addressing mass shootings in our communities. This law saves lives, and I will continue to defend it.”

The legal challenge stems from a lawsuit Ferguson filed against a gun shop, Gator’s Custom Guns in southwest Washington, which sold large-capacity magazines after the state’s ban went into effect. Washington’s law prohibits the sale, not the possession, of large-capacity magazines.

In his ruling, Bashor noted that the state’s supreme court previously found that the state constitution provides for an individual right to bear arms like the Second Amendment, and that the protections offered by the Second Amendment are a “floor” that the state cannot drop below. “The State can provide more protection of the right, but not less,” he wrote.

While lawyers for the state argued that the court should uphold the law based on the “enduring American tradition of firearms regulations,” Bashor — citing the 2022 Bruen ruling — said instead that the burden was on the state to show an analogous founding-era regulation.

“The State has failed to do so,” he wrote, adding that the laws cited by the state were passed well after the founding era or were not relevant because they dealt with hunting regulations and gunpowder storage, not firearms regulations and self-defense.

He wrote that the state’s reading of both Heller and Bruen is “tortured and incorrect.”

“Bruen was not an invitation to take a stroll through the forest of historical firearms regulation throughout American history to find a historical analogue from any random time period,” Bashor wrote.

Bashor dismissed the state’s argument that magazines don’t qualify as arms at all. He criticized the state for characterizing a Washington court ruling in “a significantly misleading way” by “leaving out the critically important operative words from the case holding.”

“Magazines have no other design purpose than as a weapon,” he wrote. “No one is going to butter a sandwich or dice carrots with a magazine of any size.”

He countered state arguments that the ban is necessary to prevent unprecedented gun violence, and that large-capacity magazines were never envisioned by the founders.

He noted that the Supreme Court’s 2008 ruling in Heller, which protected the individual right to keep and bear arms, was decided one year after a mass shooting at Virginia Tech.

And though “the specific technology available today may not have been envisioned, the Founders expected technological advancements,” he wrote. “Many were inventors.”

Bashor also took issue with the state’s argument that citizens don’t need magazines with more than ten rounds for self-defense. He found that the methodology of a report that determined that the average number of shots in self-defense incidents is “approximately three,” was not “reliable enough to be admissible,” noting that it was based on “anecdotal news story data” compiled by an economist whose expertise is in asbestos research.

He noted that Seattle’s police chief, a state witness, testified that his officers carry 17-round magazines “because they need to be prepared for every scenario they might encounter.”

“The State argues it is acceptable for a Law Enforcement Officer to be prepared for all scenarios, but not appropriate for a member of the public to be prepared for all scenarios they might encounter,” Bashor wrote.

No other constitutional right is conditioned on a person’s need, Bashor wrote.

“If a person could attain salvation by going to Church only on Sundays, could the State the prohibit attendance on other days under the First Amendment?” he wrote. “The answer is obvious.”