The Volokh Conspiracy
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Second Amendment Roundup: Washington Supreme Court Upholds Mag Ban
It’s déjà vu all over again.
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."
It turns out that the Gator's opinion simply parrots the same playbook as the Ninth Circuit in its recent decision in Duncan v. Becerra upholding California's ban on mere possession of magazines that hold more than ten cartridges. See my post here. How did it come to this?
After Heller set forth the common-use test, courts that upheld the bans readily conceded that the test was met. In Heller II, the D.C. Circuit found, "We think it clear enough in the record that semi-automatic rifles and magazines holding more than ten rounds are indeed in 'common use,' as the plaintiffs contend…. There may well be some capacity above which magazines are not in common use but, if so, the record is devoid of evidence as to what that capacity is; in any event, that capacity surely is not ten." Then-Judge Brett Kavanaugh dissented, agreeing that the banned rifles were in common use but suggesting a remand on the magazine issue for more facts on common use.
While never questioning that the banned items are "arms" and conceding that they are in common use, Heller II applied intermediate scrutiny to find that public safety outweighed the constitutional right. Other decisions, such as that of the Second Circuit in New York State Rifle and Pistol Ass'n, Inc. v. Cuomo, followed the same reasoning.
That is, until the Supreme Court in Bruen held that applying means-ends scrutiny "is one step too many." Instead, Bruen held: "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation."
Painted into the Bruen corner, courts with the agenda to uphold bans suddenly discovered that semiautomatic rifles and magazines that hold over ten rounds are not even "arms" after all, and even if they are, the government, not the people, gets to decide whether they are any good for self-defense. It turns out that the government knows best when it comes to exercise of a constitutional right.
Such courts are not fazed by Bruen's directive that "even though the Second Amendment's definition of 'arms' is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense." The Gator's court contorts this reference to mean that such instruments must be viewed in isolation, i.e., that a magazine by itself cannot be used in self-defense, despite the fact that it is an instrument (aka "object") that could obviously facilitate armed self-defense. It uses as an analogy its prior holding in Seattle v. Evans that a paring knife that a person carried for self-defense was not designed as a weapon, such as a dagger would be, and thus was not an "arm" when so carried.
What a stingy interpretation of a constitutional right. Pity the poor person who can't afford a dagger. But wait, aren't daggers like Bowie knives, the epitome of what can be banned? Bruen didn't think so – in medieval times "[a]lmost everyone carried a knife or a dagger in his belt," and "[c]ivilians wore them for self-protection," making them "as most analogous to modern handguns." And as a medieval expert informs us, "for the common man, a dagger was an everyday utility, serving purposes from cutting food to self-defense."
Dissenting in Gator's, Justice Gordon McCloud points out that the majority views history "at an extremely high level of generality—so high that we characterize those old laws as barring weapons once society weighs their utility against their danger and decides that they are too dangerous." But that's "precisely the sort of policy-laden interest-balancing" that Bruen rejected.
Moreover, the Second Amendment protects the right to keep and bear arms "in common use" not just for self-defense, but also for other "lawful purposes" such as hunting and target practice. And as for self-defense, firearms with magazines are being "used" when kept and borne for that purpose, not just when shots are fired, rendering the supposed average firing of 2.2 shots in self-defense meaningless. The majority's premise that "the State alone gets to select the arms that individuals can use for self-defense" turns the constitutional right upside down:
But the Second Amendment doesn't protect the right of the State to choose the best arm for self-defense; it protects the right of the individual to make that choice. So despite what the State prefers, under Heller's "in common use" test, the popularity of an arm among the law-abiding public actually determines whether that arm enjoys Second Amendment protection.
The state argued that a magazine is analogous to a Revolutionary-War-era "cartridge box," making it merely "an accessory, not an arm." As Justice McCloud notes, while both a cartridge box and a magazine store ammunition, a magazine "uses a spring or other mechanism to feed rounds of ammunition into the gun's firing chamber. It is an integral part of the firearm, like a trigger or a grip."
What is obvious is that the Washington Supreme Court got the post-Bruen memo on how recalcitrant courts can best obstruct Bruen's methodology. Deprived of intermediate scrutiny, their rulings can reach the same result by denying that an arm is an "arm" under the plain text. Reminds one of the pre-Heller days when "the people" didn't include actual persons (only state militias) and "arms" didn't include handguns, and the pre-Bruen days when "bear" didn't mean carry.
Without intervention by the United States Supreme Court, this obstruction will continue. The Court has yet again relisted two Second Amendment cases for its conference on Friday May 15. They include Ocean State Tactical v. Rhode Island, which concerns Rhode Island's magazine ban, and Snope v. Brown, which concerns Maryland's ban on semiautomatic rifles. Keep your fingers crossed.
