The battle over a Washington state law banning so-called “large-capacity magazines” was struck down by a Cowlitz County Superior Court judge only to have State Attorney General Bob Ferguson scramble a request for a stay to the state Supreme Court, where a court commissioner—not an elected justice—granted the motion 88 minutes later.
Ferguson, a Democrat currently running to become the state’s next governor and who supported the magazine ban when it became law in 2022, issued a statement in which he declared the judge’s ruling was “incorrect.”
“This law is constitutional,” Ferguson insisted in a statement. “It is also essential to addressing mass shootings in our communities. This law saves lives, and I will continue to defend it.”
Superior Court Judge Gary B. Bashor declared the magazine ban to be unconstitutional under both the Washington State and US Constitutions.
In his 55-page decision, the judge wrote, “The Washington Supreme Court found that Art. 1, § 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, §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 in Art. 1, § 24 cases.”
Attorney William Kirk, president of Washington Gun Rights, quickly put together a video on the decision and the stay order.
And the judge also observed, “Absent application of the now-prohibited interest balancing approach. This Court cannot conceive of a set of circumstances where the complete ban of magazines with a capacity greater than ten under ESSB 5078 can be constitutionally valid under Art. 1, § 24. This court finds ESSB 5078 as codified under RCW 9.41.300 and 9.41.375 is facially unconstitutional.”
The case stems from a lawsuit Ferguson’s office filed against a Kelso, Washington gun store known as Gator’s Guns. The lawsuit alleged Gator’s continued selling thousands of so-called “large-capacity magazines” after the ban took effect in 2022.
The Associated Press reported the stay issued by state Supreme Court Commissioner Michael Johnston will remain in effect while the state appeals Judge Bashor’s ruling.
Attorney William Kirk, president of Washington Gun Law, said in a YouTube video the ruling was thorough and covered all the legal questions raised by the case.
In his stay order, Johnston appears to have used a reason no longer permitted under the Bruen ruling, that of interest balancing.
“Having considered the State’s motion and attachments thereto,” Johnston wrote, “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.”
Judge Bashor noted the state brought this case under a Consumer Protection Enforcement Action claim.
“The violations alleged are the sale of what this Court finds are protected arms under Washington Constitution Article 1, § 24, as well as United States Constitution, Bill of Rights, Second Amendment,” the judge wrote. “It is logically inconceivable that an item that is constitutionally protected to possess could be prohibited from sale to the very people who have the protected right to possess it.”
Elsewhere in his ruling (Page 28), Judge Bashor wrote, “Under the penumbra of rights of the Second Amendment, the right to acquire arms is necessary to exercise the core purpose of the right. Included is the right to acquire a fully functional weapon. Were this court to hold individuals have no legal right way to acquire protected arms, such a ruling would eviscerate the core purpose of the right.”
SAF’s Gottlieb has another issue with Ferguson’s reaction to the Bashor ruling. He accused the Democrat AG of “playing fast and loose with the facts.” Ferguson has repeatedly claimed every court in the country has “either rejected or overturned” legal challenges against magazine bans.
“A federal court in California declared that state’s magazine ban to be unconstitutional,” Gottlieb said. “That ruling was stayed, and the order has been appealed to the 9th US Circuit Court of Appeals, but it has yet to be overruled. Washington is in the 9th Circuit.”
Likewise, he noted in a prepared statement, Oregon Measure 114—a restrictive gun control initiative passed by voters two years ago, which contained a magazine ban—was also declared unconstitutional by a circuit court judge last year. That ruling has been appealed to the Oregon Supreme Court, but Gottlieb said the judge’s decision has also not been overruled.
“We’re not sure why the media allows Ferguson to get away with such statements without some fact-checking,” Gottlieb questioned.
He also challenged Ferguson’s claim that magazine bans save lives.
“How can he say that” Gottlieb wondered. “The most recent report from the Washington Association of Sheriffs and Police Chiefs shows the number of murders statewide went up in 2022, the year the ban law was signed, by 16.6 percent. There were 394 murders in the state that year, while 2021 saw 338 homicides.
“Indeed,” Gottlieb said, “since 2014 when Washington started passing increasingly strict gun control laws and initiatives, which Ferguson has supported, the number of murders has doubled. For Ferguson or anyone else to claim gun control laws are saving lives in Washington is a myth and maybe the media should call him on it.”
About Dave Workman
Dave Workman is a senior editor at TheGunMag.com and Liberty Park Press, author of multiple books on the Right to Keep & Bear Arms, and formerly an NRA-certified firearms instructor.
