It’s being called “the shortest injunction in the history of Washington State,” a ruling by Cowlitz County Superior Court Judge Gary Bashor which struck down the state’s ban on so-called “large capacity magazines,” and was quickly stayed by state Supreme Court Commissioner Michael E. Johnston.
Attorney William Kirk, president of Washington Gun Rights, asserted in a YouTube video that he doubts Johnston reads the entire 55-page opinion before issuing the stay. As a result of the stay, the ban remains in effect pending the state’s appeal.
In his stay order, Commissioner Johnston wrote, “Having considered the State’s motion and attachments thereto, the superior court’s order, the debatable nature of the factual and legal issues raised in this case, and the public safety issues concerning the proliferation of large capacity magazines compatible with assault weapons as defined by (state law)…I have determined that it is appropriate to enter a temporary stay of the superior court’s order pending resolution of the State’s emergency motion for a stay pending further review of that order.”
But does this mean Johnston may have acted contrary to the U.S. Supreme Court’s 2022 Bruen ruling which prohibits “interest balancing” in fundamental rights cases such as the Second Amendment?
The Seattle Times is reporting that Attorney General Bob Ferguson “filed an emergency appeal” to the state high court “to get the law back on the books.” In his ruling, Judge Bashor ruled there are “no factual circumstances” the state ban “as written and codified could be constitutional under the Washington Constitution, Article 1, Section 24. The Court finds (the statute) is facially unconstitutional under the Washington Constitution.”
The judge also said the law “implicates the test of the Second Amendment of the US constitution.” He said the state had not demonstrated that large-capacity magazines (LCMs) are not “in common use” under the 2008 Heller ruling which explained the “common use” test.
As a result, Judge Bashor also ruled there are no factual circumstances under which the magazine ban would be constitutional under the Second Amendment. In the 2010 McDonald ruling, the Second Amendment was incorporated to apply to the states, via the 14th Amendment.
The ruling stems from a lawsuit filed by Ferguson’s office against Gator’s Guns, a gun store in Kelso, Cowlitz County. The gun shop allegedly had been selling LCMs after the ban took effect two years ago.
Ferguson, a Democrat who is running for governor this fall, has boasted he has “never lost” a case to the “gun lobby.”
He is quoted by the Associated Press declaring, “Every court in Washington and across the country to consider challenges to a ban on the sale of high-capacity magazines under the U.S. or Washington Constitution has either rejected that challenge or been overruled. This law is constitutional.”
But that’s not what Judge Bashor ruled.
In his decision, the judge wrote, “The Washington Supreme Court found that Art. 1, Sec. 24 is ‘absolute’ outside of its two textual exceptions. The use of the word ‘absolute’ when describing a constitutional right is unambiguous and powerful. The only conditions on the right to bear arms under Art. 1, Sec. 24 are (1) the protected right is one of defense of self or the state, and (2) the prohibition on creating a private militia. Failing to mention other limitations when two are specified implies there are no other limitations.”
He also noted that the Washington Supreme Court has “clearly stated levels of scrutiny and interest balancing were no longer to be used ion Art. 1, Sec. 24 cases.”
