Federal Judge Schedules Washington State Mag Ban Trial for December, 2023

In 2021, the Washington State legislature passed a ban on future sales or manufacturing of magazines, or other feeding devices which hold over 10 rounds. It does not include .22 rimfire tubular magazines. From the law:

(36)”Large capacity magazine” means 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 if those parts are in possession of or under the control of the same person, but shall not be construed to include any of the following:

The Washington State magazine ban is being challenged in the courts. One of the prime movers in the case is the Second Amendment Foundation.

The trial judge for the Federal District Court has scheduled an eight day bench trial to start on December 4, 2023.

As mentioned in a previous article on AmmoLand, the magazine ban has been a strategy used by those pushing for a disarmed society since Bill Ruger brought forward the idea in1989. 

Ruger, the company, paid a heavy price as millions of irate Second Amendment supporters shunned their products.  The company actively changed its stance on the issue.  Ruger products have since been accepted by most Second Amendment supporters, especially after Bill Ruger died.

A few states have passed magazine bans. 

Some appeals circuits have upheld them under the discredited “two step” procedure used by lower courts as a work around to the Heller decision.

On June 22, 2022, the Supreme Court, in the Bruen decision, decisively chided the lower courts for relegating the Second Amendment to second class status.

A few days later, the Supreme Court granted writs of certiorari to four cases, vacated the rulings on those cases, and sent them back to the lower courts to be reheard, taking the clear guidance of Bruen into account. 

Two of those cases were magazine bans. 

The message is clear: magazine bans are a direct infringement on the right to keep and bear arms as protected by the Second Amendment. 

One of those cases was returned to the Ninth Circuit, where it is being heard by Judge Roger T. Benitez in California. 

Washington State is in the Ninth Circuit. 

There is a good possibility the ban will be found to be unconstitutional in the Ninth Circuit before the trial on the Washington state ban begins on December 4th, 2023. If that occurs, the Washington state trial would almost certainly be rendered moot.

Judge Benitez already issued an opinion showing the magazine ban to be unconstitutional. It seems unlikely there will be any substantial new evidence to change that opinion. Judge Benitez, in his previous opinion, already showed the ban was unconstituional under the Heller decision. 

The Bruen decision simply restated and amplified the Heller decision. It eliminated the “two step” method the lower courts had devised. The Bruen decision clarified and emphasized the requirement for governments to prove statutes which infringe on Second Amendment protected rights are consistent with the historical tradition of firearms regulation. If no historical tradition can be shown by the government, the law is prohibited by the Second Amendment. 

The historical tradition has to date from the time of ratification of the Second Amendment, in 1791, or the Fourteenth Amendment, in 1868.

No such historical tradition has been found. Repeaters with magazine capacity of over 20 rounds (the Girandoni air rifle used on the Lewis and Clark expedition) existed, and were well known, before 1791. Repeating rifles with magazines holding 15 rounds were used during the Civil War, or War Between the States, if you prefer. They were popular, without government restraint, to US citizens, in 1868.

The next few months will tell us if the Ninth Circuit is willing to comply with the instruction of the Supreme Court, or if they will devise some other scheme to avoid treating the Second Amendment with as much respect as the First Amendment.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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