Marion Bishop

Special contributor to the Washington Civil Rights Association

The Washington State Legislature has proposed two bills in the 2021 legislative session that aim to ban “high capacity” magazines (defined in the bills as magazines that hold more than ten rounds of ammunition). At the time of this paper’s publication, SB 5078 and its companion bill HB 1164 are in committee, meaning they are being negotiated on before a vote to be passed. Legislators and other advocates support these bills under the guise of public safety, with the claim that these bills are “common sense” restrictions needed to prevent mass shootings in Washington. Our position is that these bills will place an undue burden on law-abiding gun owners, will not prevent mass shootings, and are not constitutional.

            As previously stated, support for these bills comes from the belief that banning “high capacity” magazines will prevent mass shootings in Washington. (Hereafter we will refer to “high capacity” magazines as standard capacity magazines due to the fact that most firearms that use external magazines are sold with magazines that hold more than ten rounds.) Supporters of these bills cite that standard capacity magazines have been used in many of the deadliest mass shootings in the United States. While this is true, the claims that standard capacity magazines are somehow “more deadly” than magazines that hold ten rounds or less, is false. The bills cite “firearms equipped with [standard] capacity magazines account for an estimated 22 to 36 percent of crime guns and up to 40 percent of crime guns used in serious violent crimes”.

By their own admission, most gun crime is not committed using standard capacity magazines. The bills also cite being “in the midst of a pandemic, economic recession, social tensions, and reckonings over racial justice” which are temporary circumstances, as justification for a permanent ban. 

            Legislators have also not considered that this ban will place an undue burden on law-abiding gun owners. The claim in the bills’ text that “the vast majority of handgun magazines hold ten or fewer rounds” is patently false. Most pistols sold in the United States are sold with magazines containing ten to seventeen rounds[1].

In 2020 we saw an unprecedented year for gun sales, with record numbers of women, people of color, and LGBTQ people joining the gun-owning community[2][3]. This ban will disarm all of these groups of people, plus older people, disabled people, and smaller-framed people, who may especially need the extra capacity in defensive gun use due to multiple, larger, or stronger attackers. Additionally, those with lower incomes, who are disproportionately more likely to have to use a gun defensively[4], would be put under financial strain by being forced to purchase new magazines to comply with these bills, or may not be able to comply at all. We believe these practical and financial burdens meet the definition being “undue burdens”, as defined by the Supreme Court.

Of particular concern in these bills is the exemption for off-duty and retired police officers. To be clear, the second amendment applies to all law-abiding Americans regardless of their profession. These bills reinforce a “ruling class” who will enjoy rights above the rest of the population. It is baffling that legislators would support this exemption given the ongoing discussions on police reform at the local, state, and federal levels.

            Legislators also have not established that a ban on standard capacity magazines will eliminate or even reduce the frequency or severity of mass shootings. In fact, here in Washington, the Association of Sheriffs and Police Chiefs, in a work group studying how to mitigate mass shootings, did not recommend a magazine ban or any other firearm legislation[1]. These experts concluded that mass shootings are largely caused by lapses in our mental health system, bullying, and lack of outreach and support networks. Research by the RAND Corporation has not conclusively found that banning standard capacity magazines will reduce mass shootings[2].

Studies of the 1994-2004 federal “assault weapons” ban, which included standard capacity magazines, showed the ban had no effect on gun crime[3], and in fact murder rates rose during that period of time[4]. The data shows that there is no causative link, or even correlation, between gun violence and legality of standard capacity magazines.

            Finally, these bills are unconstitutional and will certainly be met with a judicial challenge should they become law. The Supreme Court reiterated in 2006 that the second amendment protects the individual’s right to bear arms, and applies to arms (including firearms themselves, ammunition, and magazines) “in common use at the time”[5].

There are hundreds of millions[6] of standard capacity magazines in circulation currently, and they are legal in all but nine states[7]. To that end the US Court of Appeals for the Ninth Circuit, which includes Washington, held that California’s ban on standard capacity magazines violated the Second Amendment[8]. California’s Attorney General has appealed the ruling. As it stands currently, though, if SB 5078 or HB 1164 become law, they will be in violation of the Ninth Circuit’s ruling, and immediately be met with a court case that Washington’s Attorney General will defend on the taxpayers’ dollar.

We strongly oppose these bills. Much like how scientists agree climate change is a man-made threat[9], and masks help contain the spread of COVID-19[10], data supports that these bills will do nothing to solve the issue at hand. Further, they will only disarm law-abiding Washingtonians of all walks of life. With respect to our legislators, we find that burdensome, ineffective, and unconstitutional bills are not “common sense” in the slightest.

These bills are written by people who are unfamiliar with gun usage, for people who are unfamiliar with gun usage. Support for these bills is based on appeals to emotion and fear, not science. We encourage our legislators who have been using science, not rhetoric, to inform policy this year to continue doing so by standing against SB 5078 and HB 1164.