The Volokh Conspiracy

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Second Amendment Roundup: Injunction Against Washington Magazine Ban Stayed Within Minutes

The stay was issued without time to review the opinion and the motion to stay, and without allowing an opposition brief.


On April 8, Judge Gary B. Bashor of the Superior Court of Washington for Cowlitz County issued a summary judgment order finding Washington's ban on magazines holding over ten rounds violative of Washington's Declaration of Rights ("The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired") and the federal Second Amendment, and enjoined enforcement thereof.  The 55-page ruling in State of Washington v. Gator's Custom Guns is one of the most thorough analyses issued by a court to date of why such a ban infringes on the right to keep and bear arms.

As Gator's counsel Austin F. Hatcher informed me, Judge Bashor's order was emailed to counsel at 3:04 p.m.  At 4:15 p.m., the Assistant Attorney General emailed a motion to stay the injunction to counsel and said it was simultaneously being filed with the Washington Supreme Court.  The 32-page motion was obviously prepared in advance in anticipation of an adverse ruling.

Without giving Gator's an opportunity to respond, Commissioner of the Court Michael E. Johnston emailed an order to counsel at 5:04 p.m. staying the injunction.  That was only 49 minutes after receiving the motion to stay.

Either the Commissioner is a world-record speed reader or (more likely) didn't bother to read the opinion or the motion, for he issued the stay in lightning speed. Maybe he needed just enough time to read which side the state was on.

In his ruling on the stay, Commissioner Johnston recited "the public safety issues concerning the proliferation of large capacity magazines compatible with assault weapons…."  He did not mention the public interest in enforcing constitutional rights.  Those factors together with the speed with which the stay was issued gives the appearance of automatic bias in favor of the magazine ban.

Under the Washington Constitution, the Justices of the Supreme Court are elected.  The office of the Commissioner was merely the creation of a Supreme Court rule.  The Commissioner screens a large volume of petitions for review and makes recommendations to the Court for what to accept or deny.

For a state in which the Justices of the Supreme Court must be elected, that is an incredible amount of power and discretion to delegate to an appointee.  This case seems to illustrate how that power can be applied.

Meanwhile, further briefs are being filed and there will be an actual hearing on April 17 before the Commissioner.

Based on the information he received, Washington Gun Law President William Kirk determined that the injunction was in place for 88 minutes.  According to a news report, for the 88 minutes the injunction was thought to be in place, the Gator's store was overwhelmed with gun owners who swarmed in to purchase magazines holding over ten rounds.  There were lines up to 10-people deep and the parking lot was full.  The customers even included two city councilmen; no gangbangers here.

To the extent Washington has a crime problem, it's partly the state's own doings.  Remember CHOP, Seattle's police-free neighborhood where murder and mayhem ran free?  And the fun continues, as 2023 marks Seattle's bloodiest year in recent memory.

As everyone knows, criminals will no more abide by a magazine ban any more than they will comply with the more serious mala in se offenses like rape, robbery, and murder.  Hopefully the Washington Supreme Court will give Judge Bashor's decision the careful attention it deserves.