Washington Supreme Court Hears Challenge to Ban on Large-Capacity Magazines

The Washington Supreme Court appears poised to uphold a ban on selling or manufacturing large-capacity magazines, which hold high rounds of ammunition and are often used in mass shootings. The court heard arguments Tuesday about whether the ban violates the Second Amendment or the state constitution’s right to bear arms for self-defense.

Though several of the nine justices did not ask questions and the outcome is not certain, five justices, including Justices Steven González and Helen Whitener, seemed skeptical that large-capacity magazines could be fully beyond state regulation. “What is unconstitutional about the state placing a limitation on the magazine amount?” Whitener pointedly asked.

The law banning the selling, manufacturing, distribution, and import of large-capacity magazines went into effect in 2022. (It has some law enforcement and military-related exceptions.) Gun seller Gator’s Custom Guns refused to stop selling the magazines. In 2023, after being notified it was under government investigation, it filed a petition challenging the constitutionality of the law. The trial court consolidated that petition with a subsequent enforcement action the state filed against Gator’s.

The oral arguments in Washington v. Gator’s Custom Guns — which included extensive discussions about historical regulations of weapons from Bowie knives to Colonial-era “trap-guns” used for hunting — are the latest example of state supreme courts trying to balance and reconcile their own state laws and the federal Second Amendment with recent gun rights decisions by the U.S. Supreme Court. Multiple courts, both state and federal, have struggled to apply and interpret those decisions.

The Washington Supreme Court previously stayed a decision by the trial court finding that the ban violated the state and federal constitutions. The trial court’s decision rested on the 2022 U.S. Supreme Court case New York State Rifle and Pistol Association v. Bruen, which expanded federal gun rights and held limitations on gun rights must have a direct connection to historical gun laws. But, the state high court said in a July order reaffirming the stay, the lower court did not have the benefit of the U.S. Supreme Court’s 2024 decision in United States v. Rahimi, which found that a person subject to a domestic-violence restraining order could be prohibited, at least temporarily, from possessing a firearm — therefore indicating laws can provide some guardrails to gun ownership.

How to reconcile those decisions and which historical laws should apply remains a struggle for courts.

“I’m confused by our national Second Amendment jurisprudence and I’m confused by Bruen and Rahimi,” González said during the oral arguments. He noted that courts often look to “the period between 1791 and the end of the Civil War” for justification of current gun regulations, but in certain circumstances — like when a relevant technology did not exist historically — restrictions might be upheld even absent evidence of analogous historic laws.

“There doesn’t have to be a twin regulation from the late 1700s for something that didn’t exist in the 1700s,” Washington solicitor general Noah Purcell told the court. “What you look for is the principles that underlie old laws and whether they’re consistent with the principles underlying the current one.” Particularly dangerous types of weapons have been regulated by governments since the founding, Purcell said.

Gator’s counsel Austin Hatcher, meanwhile, maintained that historical guidance must provide a specific analogy to support a ban. “There is no historical tradition of regulating the amount of rounds held by a weapon,” Hatcher argued. “The only ammunition capacity laws were from the Prohibition-era, which is much too late.”

The state of Washington also argues the banned magazines are military-style accessories rather than arms used for self-defense, and points out that no gun is rendered inoperable if large-capacity magazines are not available. Because the state constitution only protects arms, not accessories, the state says, the magazines do not qualify for protection. The high-capacity magazines are also not arms “as that term is historically understood,” the state argues, rendering the ban permissible under the Second Amendment as well.

In any event, the state asserts, the Washington Constitution’s right to bear arms is subject to reasonable regulation — which should include public safety measures to curb mass shootings and other tragedies. To prevail on its state law arguments, it says, Gator’s would need to show the ban is “constitutionally unreasonable in all its applications.”

For its part, Gator’s argues the law must at minimum survive strict scrutiny under the state constitution — not the lesser “reasonable regulation” standard the state argues is applicable — because “self-defense is a fundamental right.” During the oral argument, Gator’s counsel maintained the magazines are a “commonly owned arm” that is “essential to the functioning” of automatic rifles, including the AR-15. The Washington Constitution says the right to bear arms “shall not be impaired” and, according to Gator’s, an “arbitrary limitation on ammunition capacity is unequivocally an impairment on the right to bear arms.”

Gun rights groups including the National Rifle Association filed friend-of-the-court briefs in support of Gator’s. The NRA argues that 2008 U.S. Supreme Court case District of Columbia v. Heller held that “common arms cannot be banned” — and because millions of Americans own high-capacity magazines, they are beyond such regulation.

In its friend-of-the-court brief arguing that the ban should be upheld, the regional branch of the NAACP was critical of both sides’ arguments for failing to acknowledge the reality of gun violence faced by marginalized communities. “The Washington citizens most disproportionately impacted by mass shootings are not legal elites living in ivory towers,” the brief said.

Last year, the Hawaii Supreme Court relied on its state constitution to hold that there is no state right to carry a firearm in public. The U.S. Supreme Court declined to review the case, but Justice Clarence Thomas wrote separately to lambast what he saw as the state high court’s departure from federal Second Amendment jurisprudence. Should the Washington high court uphold the ban, then, it may set up a showdown at the Supreme Court.

Erin Geiger Smith is a writer and editor at the Brennan Center for Justice.

Suggested Citation: Erin Geiger Smith, Washington Supreme Court Hears Challenge to Ban on Large-Capacity Magazines, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 17, 2025), https://statecourtreport.org/our-work/analysis-opinion/washington-supreme-court-hears-challenge-ban-large-capacity-magazines