Spin Control: Large-capacity magazine ban could go against 233 years of history

The ability to buy a magazine that holds more than 10 rounds for a firearm is temporarily on hold in Washington. Whether that ban continues may rely on whether the state’s Supreme Court commissioner is as persuaded as a Cowlitz County judge that such a law violates the Second Amendment and various historic precedents.

In a hearing Wednesday, Commissioner Michael Johnston seemed somewhat skeptical of the arguments underpinning Superior Court Judge Gary Bashor’s decision that the 2022 law against large-capacity magazines – that is, anything above 10 rounds – violates the federal and state constitutional rights to bear arms.

Last month, Bashor ruled the law could not “pass constitutional muster” and blocked the law banning the sale, purchase or manufacture of such magazines. Within hours, the state had appealed to the state Supreme Court, and Johnston temporarily stayed Bashor’s order, which meant the ban went back into effect and remains so for now. Johnston must decide what comes next.

It’s just the latest skirmish in what’s likely a long legal battle, a possible second front in the war that also includes a legal battle over a ban on the sale of military-style semi-automatic assault rifles.

Before listening to the lawyers for the state attorney general’s office and Gator’s Custom Guns, the Kelso store that filed the lawsuit, Johnston took time to tell anyone watching online or TVW that he’s not some gun-hating pacifist. He grew up on a Spokane-area farm and learned to shoot when he was 9, and has handled everything from a .22 to an AR-15

“I’m a gun enthusiast,” he said. He also already had done extensive research on the history of firearms and the Second Amendment for the earlier challenge over the assault weapon ban.

The temporary stay resulted in some angry emails and voicemails when he arrived the next morning. There also was a call that morning that he answered, and the person seemed surprised to have reached him directly

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Let’s just say the caller had some choice words.

In the two hours between Bashor ruling the law was unconstitutional – which meant high-capacity magazines could go back on the market in Washington – and Johnston’s temporary stay, which took them off the market again, hundreds of the devices were sold. That’s likely to be repeated if the stay is lifted and “the genie simply cannot be put back in the bottle” should the law be upheld later, Assistant Attorney General William McGinty said.

Part of the state’s contention is that large-capacity magazines are not “arms,” based on the text of Second Amendment.

Lawyers for Gator’s Guns contend that they definitely do fall under that definition.

It’s a debatable point, considering that when the Second Amendment and other amendments in the Bill of Rights were ratified in 1791, there were no large-capacity magazines or any magazines at all. Loading a flintlock rifle involved pouring powder, a ball and wad into the muzzle, and ramming it down

But a U.S. Supreme Court ruling requires lower courts to weigh restrictions to constitutional rights under a historic context and view them against those in place in 1791.

And as there were large capacity magazines back then, there were no restrictions on them.

This could cause real conundrums in cases involving other constitutional rights.

For example, can Congress limit what people write or say on the internet when there was no internet in 1791? Can King County prohibit pro-Palestinian demonstrators from blocking the entrance to Sea-Tac when there were no airports in 1791?

The historical discussion on what’s necessary for personal defense briefly jumped forward into the 19th century during Wednesday’s hearing, as the attorneys for Gator’s Guns noted a similar ban on large-capacity magazines in Oregon had been overturned. They argued that should be considered, as Washington’s constitution was patterned on Oregon’s.

But Oregon became a state in 1859, with settlers who arrived there in the 1840s and 1850s, Johnston said. What they needed for self-protection was different than when Washington became a state in 1889, and “all of the tragic difficulties with the Native population had long been settled.” Even so, the differences in technology between 1889 and now “are mind-boggling,” he added.

A shooter with a 10-round magazine would have to reload more times than a shooter with a 30-, 50- or 100-round magazine, Johnston said. It’s possible the Legislature could limit the size to protect the public by preventing large-scale slaughter, he said

But large-capacity magazines also can be important for self-defense, Austin Hatcher, an attorney for Gator’s Guns, argued. Suppose someone who had left Johnston an angry email or voicemail came to his house and broke down his door, Hatcher suggested. Wouldn’t he rather have a 30-round magazine than a seven-round magazine?

Johnston replied he’d rather have his father’s World War II-era M-1911 automatic pistol or a 12-gauge shotgun with four or five rounds.

Hatcher also argued the threat to large-capacity magazines in the state is speculative. “In Washington, there’s been no mass shootings perpetrated by large-capacity magazines,” he said.

Actually, not true. When Dean Mellberg went on his rampage at the Fairchild Air Force Base hospital in June 1994 – killing four people and wounding 22, including a pregnant mother who subsequently lost the unborn child – he used a semi-automatic rifle with a 75-round drum magazine.

Johnston didn’t bring up Mellberg, but he did seem dubious about Hatcher’s argument.

“Is there a force field around Washington?” he asked, adding: “The threat is not really all that speculative, as a general threat.”

Johnston said he has some more research to do and expects to render a decision sometime this week. He won’t be deciding whether Bashor was right or wrong, but whether there are debatable issues that should go directly to the state Supreme Court or first to the Court of Appeals.

As of Wednesday, he said, there seemed to be “some highly debatable issues.”