Second Amendment Roundup: Washington Supreme Court Upholds Mag Ban
On May 8, in its 7-2 decision by Justice Charles Johnson in State v. Gator’s Custom Guns, the Washington Supreme Court upheld the state ban on the import and sale of magazines that hold over ten rounds. Last year I posted “Injunction Against Washington Magazine Ban Stayed Within Minutes,” explaining how Superior Court Gary B. Bashor’s 55-page preliminary injunction against the ban was stayed just 49 minutes after the state filed its appeal brief with the Supreme Court. The case is now remanded to consider the State’s consumer-protection enforcement action against Gator’s for alleged violation of the ban.
The court followed the now-familiar script that “large capacity magazines (LCMs) are not ‘arms’ within the meaning of either constitutional provision, nor is the right to purchase LCMs an ancillary right necessary to the realization of the core right to possess a firearm in self-defense.” That is the case both under the federal Second Amendment and under Washington’s guarantee that “The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired….”
Based on Heller‘s quotation from a 1771 dictionary defining “arms” as anything that a man “useth in wrath to cast at … another,” the court said that “the LCM itself does not cast the round but feeds the round into the firearm.” Further, such magazines are supposedly not “integral components” of firearms because no firearm requires a magazine of the subject capacity to operate.
It goes without saying that no specific part of a firearm – the barrel, sights, safety, or stock – is used “to cast at another.” And a magazine is necessary to feed a round into a semiautomatic firearm. The assumption that a magazine that holds ten or under rounds may be protected but one that holds over ten is not, has no constitutional basis. (As an aside, semiautomatics with a “magazine safety” won’t fire at all without a magazine inserted.)
Recall that Heller held that “arms ‘in common use at the time’ for lawful purposes like self-defense” are protected. The Gator’s court rejects “ownership statistics” on the basis that “whether LCMs are common in circulation does not inform this court whether they are ‘commonly used for self-defense,’ as how many LCMs are owned has no bearing on what those LCMs are actually used for.” They are allegedly not so used because “the average number of shots fired in self-defense is merely 2.2.”
t turns out that the Gator‘s opinion simply parrots the same playbook as the Ninth Circuit in its recent dec
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