Washington Is Now the 10th State With a Logically and Constitutionally Dubious 'Assault Weapon' Ban

A federal lawsuit notes that the new law draws arbitrary distinctions and targets guns in common use for legal purposes.

Washington Gov. Jay Inslee yesterday signed into law three gun control bills, including an "assault weapon" ban, a 10-day waiting period for all firearm purchases, and a training requirement for buyers. "Today marked the latest development in what the Seattle Times editorial board has called 'a sea-change in Washington's gun laws,'" Inslee, a Democrat, bragged. "Washington state is putting the gun industry in its place and improving the health, safety and lives of our residents."

While the satisfaction of sticking it to "the gun industry" is a matter of perspective, the promise that the new laws will measurably improve public safety seems highly dubious, especially when it comes to the semi-automatic rifles that Inslee and the Democrat-controlled Washington State Legislature have deemed intolerable. H.B. 1240, which makes Washington the 10th state to prohibit the production, sale, and possession of "assault weapons" (counting Hawaii, whose ban is limited to pistols), takes the familiar approach of targeting specific models and other firearms that meet a set of arbitrary criteria. Like the other bans, it exempts currently owned guns.

In addition to a list of models that includes the AK-47 "in all its forms" and the AR-15 "in all its forms," H.B. 1240 applies to any "semiautomatic, center fire rifle that has the capacity to accept a detachable magazine" and any of nine features. The prohibited features include pistol grips, folding or telescoping stocks, flash suppressors, muzzle breaks, barrel shrouds, and threaded barrels.

Here is how The New York Times explains the logic of this definition: "AR-15-style rifles have been a particular point of concern among gun control proponents as they have often been the weapon of choice in mass shootings. The high-capacity firearms can fire rounds at a greater velocity than a handgun, resulting in more severe injuries."

Contrary to what the Times says, "AR-15-style rifles" are not the "the weapon of choice" in mass shootings. "Handguns are the most common weapon type used in mass shootings in the United States, with a total of 161 different handguns being used in 111 incidents between 1982 and April 2023," Statista reports. "These figures are calculated from a total of 142 reported cases over this period, meaning handguns are involved in about 78 percent of mass shootings."

That jibes with a 2022 National Institute of Justice report on public mass shootings from 1966 through 2019, which found that 77 percent of the perpetrators used handguns. About a quarter of the killers used weapons that would be covered by legislation like H.B. 1240.

Several of the deadliest mass shootings in U.S. history—including the 2007 Virginia Tech attack, which killed 32 people, and the 1991 Luby's massacre, which killed 23—involved ordinary handguns. It seems clear that even eliminating all "assault weapons," which H.B 1240 does not purport to do, would not prevent such crimes.

Mass shootings, of course, account for a tiny share of all gun homicides. In the broader picture, the role of what the Times calls "military-style semiautomatic weapons" is even smaller. In 2021, according to FBI data, rifles of any kind, only a subset of which would qualify as "assault weapons," were used in 6.5 percent of gun homicides where the type of firearm was specified. The share for handguns was 87 percent.

The Times also says the guns targeted by H.B 1240 are "high-capacity firearms" that "can fire rounds at a greater velocity than a handgun, resulting in more severe injuries." But Washington's definition of "assault weapons" does not hinge on ammunition capacity or muzzle velocity. A state law enacted in March already banned the sale of magazines that can hold more than 10 rounds. And with or without the newly prohibited features, a rifle fires the same ammunition at the same rate with the same muzzle velocity.

As President Joe Biden has conceded, the distinctions drawn by "assault weapon" bans make little sense, since they allow the production and sale of guns that are "just as deadly." That insight, however, has not deterred Biden from pushing a new, supposedly improved version of the federal ban that expired in 2004. The legislation that Biden supports, which is similar to H.B. 1240, does not address the fundamental defect that he identified in a 2019 New York Times essay: Laws like these leave would-be mass murderers with plenty of equally lethal alternatives.

Unsurprisingly, there is little evidence to support the belief that such bans reduce mass shooting deaths. The RAND Corporation says "assault weapon bans have uncertain effects on mass shootings," adding that "evidence for this relationship is inconclusive."

The Second Amendment Foundation (SAF), joined by the Firearms Policy Coalition (FPC), has already filed a federal lawsuit challenging the constitutionality of H.B. 1240. "The State has enacted a flat prohibition on the manufacture, sale, import and distribution of many types of firearms, inaccurately labeled as 'assault weapons,' which are owned by millions of ordinary citizens across the country," says SAF Executive Vice President Alan M. Gottlieb. "In the process, the state has criminalized a common and important means of self-defense, the modern semiautomatic rifle. The state has put politics ahead of constitutional rights."

The firearms covered by Washington's ban are "ordinary semiautomatic rifles," SAF Executive Director Adam Kraut notes. "To the extent they are different from other semiautomatic rifles, their distinguishing features make them safer and easier to use. But even if they are considered as a separate group of 'assault weapons,' they cannot be banned because they are not dangerous and unusual."

Under the test that the Supreme Court established last year in New York Rifle & Pistol Association v. Bruen, Washington has the burden of proving that H.B. 1240 is "consistent with this Nation's tradition of firearm regulation." In their complaint, the SAF and the FPC argue that the state cannot meet that test.

Under the Supreme Court's precedents, the complaint says, "the only historical tradition that can remove a firearm from the Second Amendment's protective scope" is "the tradition of banning dangerous and unusual weapons." That category does not include "arms that are in common use" for lawful purposes, "as the firearms Washington has banned unquestionably are."

The SAF and the FPC note that "AR-15 rifles are among the most popular firearms in the nation, and they are owned by millions of Americans." They cite a recent survey that found "about 24.6 million Americans have owned AR-15 or similar modern semiautomatic rifles."

Two-thirds of the respondents who reported owning AR-15-style rifles said they used them for recreational target shooting, while half mentioned hunting and a third mentioned competitive shooting. Sixty-two percent said they used the rifles for home defense, and 35 percent cited defense outside the home. Yet politicians who want to ban these rifles insist they are suitable for nothing but mass murder.

"These weapons of war, assault weapons, have no reason other than mass murder," Inslee says. "Their only purpose is to kill humans as rapidly as possible in large numbers."

It is hard to reconcile that claim with the evidence of widespread lawful use, which is far more common than criminal use. "The arms banned as 'assault weapons' by Washington are common by all counts," the lawsuit says. "(1) They are common categorically, as they are all semiautomatic in their function and operation; (2) they are common characteristically, as they are all popular configurations of arms (e.g., rifles) with varying barrel lengths and common characteristics like pistol grips; and (3) they are common jurisdictionally, lawful to possess and use in the vast majority of states now and throughout relevant history, for a wide variety of lawful purposes that include self-defense, proficiency training, competition, recreation, hunting, and collecting."

The FPC has mounted a similar challenge to New York's "assault weapon" ban. Post-Bruen, the constitutionality of such laws is unsettled. After that decision, the Supreme Court vacated four appeals court decisions, including a 4th Circuit ruling that upheld Maryland's "assault weapon" ban. It instructed the court to reconsider the case in light of Bruen.