By Dave Workman
In a move guaranteed to infuriate Washington Gov. Bob Ferguson and Attorney General Nick Brown, as well as the Seattle-based gun prohibition lobby, a coalition of 27 state attorneys general have petitioned the U.S. Supreme Court for a writ of certiorari in an amicus brief filed Monday, in a case known as Gator’s Custom Guns, Inc. v. State of Washington.
The 32-page brief may be read here.
The coalition is led by Montana Attorney General Austin Knudsen, who said in a prepared statement announcing the filing, “The Supreme Court needs to step in to uphold Americans’ right to keep and bear arms. Lower courts, including the Washington Supreme Court, are attempting to attack and rewrite the Second Amendment. Washington’s failure to properly interpret the Second Amendment and ban plus-ten magazines ignores both history and constitutional precedent. Law-abiding citizens should not be treated like criminals for exercising their right to keep and bear arms for self-defense. As attorney general, I will continue to do everything in my power to ensure Americans and Montanans can protect themselves.”
Also leading the effort is Idaho Attorney General Raul Labrador.
State attorneys general joining the brief represent Alabama, Alaska, Arkansas, Florida, Georgia, Iowa, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wyoming, and the Arizona Legislature.
In their brief, the state AGs summarize their arguments by asserting the case should not have been difficult (to decide).
“The Washington Supreme Court…acknowledged ‘there are between 30 million to 159.8 million [plus-ten magazines] in circulation,’ and ‘48 percent of gun owners have owned [plus-ten magazines].’ Time and again, this Court has said that the Second Amendment protects the right of citizens to bear arms ‘that are unquestionably in common use today’ for lawful purposes…Plus-ten magazines are in common use today. So they are protected by the Second Amendment.
“Yet the Washington Supreme Court joined several other courts in rewriting the Second Amendment and this Court’s precedents to allow hostile jurisdictions to continue infringing on their citizens’ core constitutional right to keep and bear arms. The Washington Supreme Court claimed that the Second Amendment does not apply at all because Washington’s ban on the possession of plus-ten magazines purportedly does not regulate arms—even though the Second Amendment protects ‘arms-bearing conduct,’ including necessary incidents like magazines. The Washington Supreme Court went on to botch its alternative Second Amendment analysis, implausibly concluding that plus-ten magazines are not ‘commonly used for self-defense’ and are therefore not protected by the Constitution.
“This obvious error on a core issue of constitutional law warrants this Court’s review. More fundamentally, it is time for this Court to address the repeated defiance of this Court’s holdings, particularly in jurisdictions that have repeatedly infringed on citizens’ Second Amendment rights. The evident errors below and in similar cases manifest a deep hostility to both the Second Amendment itself and this Court’s precedents. Only this Court’s review can correct these persistent misapplications, which deprive citizens of their fundamental rights, their property, and their ability to defend themselves. The Court should grant certiorari and reverse.”
In 2022, the Democrat-controlled Washington Legislature passed legislation, which was supported by Ferguson when he was serving as the state attorney general, banning so-called “large-capacity magazines.” This had been on his gun control agenda for the previous few years.
Earlier this year, the Washington Supreme Court upheld the ban in a 7-2 ruling, with Justices Sheryl Gordon McCloud and G. Helen Whitener dissenting. The majority opinion was authored by Justice Charles Johnson.
In August, Gators Custom Guns filed a petition to the U.S. Supreme Court, asking for review.
In his announcement, Montana’s Knudsen said, Washington’s restrictions, burden the rights of millions of law-abiding citizens to keep and bear magazines that have been considered appropriate for self-defense.”
The brief bluntly contends, “Lower courts are not faithfully applying this (Supreme) Court’s Second Amendment precedents.”
Washington is one of a handful of states which have banned ammunition magazines capable of holding more than ten cartridges. The ban applies to handgun magazines as well as those used in modern semiautomatic rifles such as the AR-15 and its various clones.
In their petition, the AG’s conclude, “Washington’s failure to come up with any remotely analogous regulation to its magazine ban underscores the importance of a proper interpretation of the
Second Amendment at Bruen’s step one. Otherwise, laws regulating conduct covered by the ‘Second Amendment’s plain text,’ with no basis in ‘this Nation’s historical tradition of firearm regulation,’ are allowed to stand without meaningful constitutional scrutiny.”
