In March of 2022, Washington Governor Jay Inslee signed Engrossed Senate Bill 5078 into law, (otherwise referred to as the Washington magazine ban). ESB 5078 contained a measure making it illegal for any person in Washington to “manufacture, import, distribute, sell, or offer for sale any large capacity magazine.” “Large capacity magazine” was defined as “an ammunition feeding device with the capacity to accept more than 10 rounds of ammunition, or any conversion kit, part, or combination of parts from which such a device can be assembled.”
ESB 5078 exempts “any ammunition feeding device that has been permanently altered so that it cannot accommodate more than 10 rounds of ammunition, .22 caliber tube ammunition feeding device[s] and any “tubular magazine that is contained in a lever action firearm.” Manufacture for and sales to law enforcement, military, and government agencies are also exempt. The new law took effect on July 1, 2022.
Washington Citizens and Gunmakers Hit Back
June of 2022 saw Washington resident Gabriella Sullivan, firearms manufacturer Rainier Arms, the Second Amendment Foundation, and the Firearms Policy Coalition file suit claiming that the law is unconstitutional under the Second and Fourteenth Amendments.
The suit filed in United States District Court named Washington Attorney General Bob Ferguson as the primary defendant, along with several county sheriffs and prosecutors. The plaintiff’s goal is for the Court to declare the law unconstitutional and issue an injunction against its enforcement.
The Argument
The plaintiffs claim that the state has criminalized one of the most common and important rights enjoyed by Washington’s citizens. The ban targets lawful gun owners and deprives them of an effective means of self-defense.
Further, the suit cites the Supreme Court’s McDonald v. City of Chicago Decision in claiming the law “reinforces the erroneous notion that the right to keep and bear arms is nothing more than ‘a second class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’”
The plaintiffs also say the state will infringe on lawful gun owners’ rights “without any realistic prospect of diminishing the misuse of firearms or the incidence of horrific mass shootings… All it will do is leave law-abiding citizens more vulnerable to attack from better armed and more ruthless assailants.”
The suit notes that the Supreme Court has declared that police have no duty to protect citizens from violent attacks, and recent years have shown that 911 calls may not be answered for hours, or even at all. “Uncertain times,” the plaintiffs say, “are precisely when fundamental rights – like the right to keep and bear arms for self-defense – must be protected.”
Finally, the plaintiffs acknowledged that the Ninth Circuit Court of Appeals rejected a Second Amendment challenge to California’s magazine ban but anticipated that the then-upcoming Bruen Decision from the Supreme Court would impact that case, as it indeed has.
Back and Forth
Recently, the activist gun control group Alliance for Gun Responsibility successfully petitioned the Court to join the case as a defendant. The group cites its long advocacy for the ban as grounds for doing so. The judge granted part of their petition and the group joined the suit. Their impact on the case remains to be seen, but will no doubt broaden the argument.
State and local officials recently moved to dismiss the case, saying the plaintiffs lack standing to bring the suit. The judge recently denied those motions, saying that Sullivan was able to demonstrate the law’s impact on her ability to purchase the magazines she wants. Rainier Arms was also judged to have shown that the ban harms their business, given their focus on AR-15 rifles and accessories, including magazines.
Washington resident Daniel Martin also joined the suit as a plaintiff, firming up the standing issue.
Bruen Looms Large
We don’t know where the case will ultimately go, but the Supreme Court did indeed order the California magazine ban back to the Ninth Circuit in Bruen’s wake. The Ninth Circuit then remanded it to the US District Court in what looks to be a stalling tactic. The California ban is clearly unconstitutional under Bruen, which was influenced by the Heller Decision’s declaration that items “in common use” cannot be banned. Standard capacity magazines, meaning 30 rounds, certainly fall in that category. The ban also falls afoul of Bruen’s “text, history and tradition” requirement. But the Ninth Circuit is no friend of gun rights.
Sullivan v. Ferguson goes on, but it will be interesting to see how District Judge David Estudillo incorporates Bruen into his decision. There’s no doubt that the case will be appealed to the Ninth Circuit, no matter how he rules. It could be that the Washington magazine ban will directly affect the California ban and shorten its journey back up the legal chain.
For now, we just have to wait. We’ll keep you informed as this case develops.
