At first glance, it doesn't appear that much has changed in the fight over "large capacity" magazines in Washington State in recent weeks. Attorney General Bob Ferguson's office continues to make dubious claims about the legal landscape regarding magazine bans, and gun owners are continuing their efforts to overturn a new state law banning the sale of magazines that can hold more than ten rounds. 

Behind the scenes, however, the two sides are jockeying for position as the state Supreme Court is set to decide whether or not to accept a direct appeal by Ferguson, who's trying to overturn a Cowlitz County judge's decision that the ban violates the rights of gun owners. 

In a 55-page ruling, the judge alluded to the case New York State Rifle & Pistol Association v. Bruen. That case went before the U.S. Supreme Court in 2022 and ended with justices writing that gun regulations had to be “consistent with the Nation’s historical tradition of firearm regulation.”

For the lower courts, that meant examining what gun laws were in place circa 1791, when the Second Amendment was drafted. To Bashor, the state of Washington failed to point to any relevant laws to defend its magazine restrictions. “This court finds there are no relevantly similar analogue laws related to hardware restrictions near 1791,” Bashor wrote.

Judge Bashor's decision was in effect for about 90 minutes before Ferguson was able to have it stayed on an emergency basis. Supreme Court Commissioner Michael Johnston recently extended that stay, allowing the law to remain in effect. Attorney Pete Serrano, who's representing the plaintiffs, says the statute is clearly an infringement on a fundamental civil right. 

The Center Square reached out to the Attorney General's Office for comment on Serrano's filing.

“Every other 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," a representative with the Attorney General's Office emailed The Center Square. "We are confident the court will agree this law is constitutional.”

Ferguson's office has made that claim before, but there's a reason why the AG's office specifically referred to the "U.S. or Washington" constitutions. Oregon's Measure 114, which includes a ban on "large capacity" magazines, isn't being enforced because a Harney County circuit judge has ruled it violates the state constitution, and the state Supreme Court has declined to intervene while the case is pending appeal. 

William Kirk, president of Washington Gun Law, has followed the case closely.

After Johnston extended the stay order, Kirk posted a scathing video on YouTube.

“I’ve had an opportunity to digest it, to vomit over it a few times. This is one of the most animosity-ridden opinions I have ever read in my entire career,” he said. “Commissioner Johnston seemingly has a big fat bone to pick with every single lawful gun-owning Washington resident. It is obvious when you read this opinion that it is written out of personal animosity.”

Kirk thinks the case may not hinge on Second Amendment rights at all, but rather Article 1 Section 24 of the Washington State Constitution, which states, "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men."

Kirk read from Johnston’s ruling: “The issue of whether an LCM [large-capacity magazines] is an arm at all, is a very large anchor pulling on the Superior Court’s debatable Heller analysis.”

Only according to the anti-gunners. A magazine is an essential part of modern firearms, whether or not it's permanently affixed to a gun. They are arms, not accessories, but if the state Supreme Court adopts that common-sense point of view there's no way it can uphold the state's magazine ban given that it squarely impairs the right of self-defense. 

But there's also an argument to be made that it doesn't matter if the court considers magazines to be arms or not; the Washington State Constitution talks about impairing the right to bear arms in self-defense (and defense of the state), and artificially limiting the number of rounds that are available to use in self-defense impairs that right whether or not magazines are actually "arms". 

The legal fight over the state's ban won't be resolved anytime soon, but gun owners and Second Amendment activists are in it for the long haul. With the Supreme Court set to consider granting cert to Illinois' gun and magazine ban at its May 16th conference, SCOTUS could end up resolving this issue before the Washington State Supreme Court weighs in with a final determination, and if that happens I doubt that Ferguson is going to be happy with the outcome.