Magazine bans like those contained exclusively in SB 5078, and as a part of AWB bills SB 5217 and HB 1229 are often justified with public safety as the qualifier. Magazine restrictions and bans, if passed, will have no tangible positive impact on public safety, and in a number of cases, states who have passed similar bills have seen negative impacts after their passage. This is not to mention that these bans simply cannot succeed in Washington without violating existing law. Let us walk through why this is the case.

Public Safety

While public safety has been the largest justification for the passage of such a bill, it is important to look at the performance of similar laws in other states.

Colorado

Let’s consider Colorado, similar in many ways to Washington:

These similarities make Colorado an exceptional tool to analyze the public safety impact of a “Large Capacity Magazine” ban.

Colorado’s law bans the sale, transfer, and possession of magazines holding more than 15 rounds and went into effect on July 1, 2013.  Data compiled by the Department of Justice captures the firearm homicide rate for Colorado in 2013 at 1.67 firearm homicides per 100,000 people.  In 2020, the latest year with available data, that rate skyrocketed to 3.48 firearm homicides per 100,000 people, a growth of 108% in just 7 years.  In 2013 Washington had a firearm homicide rate of 1.23 firearm homicides per 100,000 people, roughly 26% lower than Colorado, by 2020 the rate for Washington under Attorney General Bob Ferguson’s policies had grown to 2.30 firearm homicides per 100,000 people.  That means in the same span of time Colorado’s firearm homicide rate grew 108%, Washington’s only grew 87%.  While that difference may not seem significant, when analyzing whether a magazine capacity limit law in Washington State would positively impact public safety using the comparable State of Colorado, the conclusion is clear.  A magazine capacity limit law in Washington State, based on a comparable law in a comparable state correlates to an increase in firearm homicides and therefore a negative effect on public safety.

Often proponents of magazine capacity limit laws claim the purpose is to either limit the frequency or lethality of mass shootings.  Analyzing data from the Mother Jones Mass Shooting Database covering 1982 to 2021 shows since Colorado’s magazine capacity limit law went into effect July 1st, 2013, a total of 19 people killed and 9 people injured in a mass shooting.  During that same period of time a total of 10 people were killed and 1 person injured in a mass shooting in Washington.  Looking specifically at lethality, in Colorado the 19 people were killed across 4 mass shootings for an average deaths per mass shooting of 4.75 compared to Washington where the 10 people were killed in 2 mass shootings for an average deaths per mass shooting of 5.00, almost identical to Colorado.  However, with the additional people injured in Colorado mass shootings their average victims per mass shooting was 27% higher than Washington.  To summarize, following Colorado’s implementation of their magazine capacity limit law they experienced more mass shootings, more injurious mass shootings, and nearly identical lethality mass shootings compared to Washington which has no magazine capacity limit law.

To put these numbers into context of overall firearm homicides, the firearm homicide rate yearly average in Colorado from 2013 to 2020 was 2.35 firearm homicides per 100,000 people and the mass shooting homicide rate yearly average was 0.04 per 100,000 people.  Washington numbers were even lower at 1.74 firearm homicides per 100,000 people and 0.02 mass shooting homicides per 100,000 people.

A final data point to look at is law enforcement officers killed by an assailant using a firearm.  Since implementation of their magazine capacity limit Colorado has had 8 law enforcement officers killed in the line of duty by a firearm.  During that same period of time Washington has had 6 law enforcement officers killed in the line of duty by a firearm.  This means that with a magazine capacity limit law Colorado has experienced a 33% higher rate of law enforcement officers killed in the line of duty by a firearm than Washington has without a magazine capacity limit law.

The inevitable conclusion we can draw from looking at the effect of Colorado’s “Large Capacity Magazine” Ban compared to Washington State is that a “Large Capacity Magazine” Ban does not positively impact public safety when looking at firearm homicides, mass shootings, and law enforcement officer safety.

Why Have Restrictions Been Successful Elsewhere?

We’ve seen statewide magazine restrictions in nine states and they all seem to have at least one thing in common. Weak or no state level protections for the right to keep and bear arms. One could surmise that this lack of protection contributed to these laws not being struck down. In these cases, it is rather easy for biased entities to make an argument that in 1791 when the Bill of Rights was added to our Constitution that our “founding fathers had no idea where technology would take us.” While this is debunked in Heller, these cases have not gone before the Supreme Court.

It is certainly debatable that the challenges brought to the court in Hawaii could be challenged further based on the ratification date of their constitution.

While Connecticut’s current constitution is technically more “modern” than Hawaii’s, it leaves the right to keep and bear arms entirely open ended.

States who passed magazine bans and notes about their Constitutions are:

• California – No right to keep and bear arms
• Colorado – Right shall not be questioned, but does not protect restriction
• Connecticut – Vague and open ended
• Hawaii – Identical to Bill of Rights
• Maryland – No explicit right
• Massachusetts – Protection of individual right somewhat vague
• New Jersey – No right to keep and bear arms
• New York – No explicit right
• Vermont – Protection of individual right somewhat vague

What Makes Washington Different?

Washington is different from these other states in that the state Constitution is stronger and clearer. If we follow the guidance of our state Constitution along with history, and legal precedence it is absolutely impossible to see how magazine bans could even be considered remotely legal.

What Does the Constitution Say?

Article 1 Section 24 of the Washington Constitution 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.”

This makes it clear that the right to bear arms is an individual right for the purpose of defending themself or the state. That much is clear, but what is in an impairment?

Understanding Impairment

When considering the definition of an impairment in this context, we should look to a more period correct definition of the word impair. When consulting the 1828 edition of Websters Dictionary, we find two possible definitions:

1. To make worse; to diminish in quality, value or excellence.
2. To weaken; to enfeeble

These definitions make clear that weakening or the diminishing of an individual’s right to keep and bear arms in the State of Washington is a violation of the Constitution.

Plainly speaking, this would mean that limiting access to arms is not allowed, however there are those that believe that this means this only applies to arms available at the time of writing and that the founders of our nation or framers of our state Constitution couldn’t possibly have foreseen the advances in weapons technology that have come to bear. There is bad news for that argument when considering the case of District of Columbia v. Heller, however.

Heller

Justice Scalia’s opinion in this case makes it clear that modern arms are protected stating, “Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications…”

Even in California, Judge Benitez ruled against the proposed magazine ban, noting that it failed “the simple test of Heller.” While this ruling was later overturned, upon further appeal, the United States Court of Appeals for the Ninth Circuit issued a stay, preventing the enforcement of the ban while an appeal is made to the Supreme Court.

History

Even if we were to ignore Heller and continue to beat the drum of “only arms available at the time are protected,” there is more bad news. The Washington Constitution was ratified in 1889. Had the framers of Washington’s constitution intended to limit magazine capacity or access to semi-automatic rifles, they most certainly would have made this clear at the time.

For those unaware, in 1871 a 20-round box magazine was introduced for the Gatling gun, the following year drum magazines were introduced that had typical capacities of 240 rounds, although some examples could hold up to 400 rounds of ammunition.

The gatling gun was not only sold to governments and militaries, but also sold and owned by civilians as described on page 186 of Mr. Gatling’s Terrible Marvel. The gatling gun is not classified as a machine gun, nor are more modern adaptations of it, which are still being manufactured and sold to the general public.
Box and drum magazines have continued to become more widely available in all sorts of capacities over the years, and while not the core topic of this article, it is worth noting that semi-automatic rifles first began to surface in 1885 and all of these items are most certainly in common use today. This only further affirms their protection under Heller.

Constitutional Conclusion

When considering these factors along with the fact that our legislature is willing to exempt restrictions on magazines for law enforcement and military use because they are useful in the defense of oneself or the state, the only possible conclusion one can draw is that the legislature sees the citizens as subjects beholden to the state, and not the other way around as intended.

The passing of the magazine ban on the table is clearly in direct conflict with the Washington Constitution, and it is alarming that it was brought to the table at the request of the Attorney General, Bob Furgeson, who is supposed to be using his position to protect the rights of Washingtonians.

If passed, the inevitable lawsuit that would follow would be funded by the citizens of this state, and also defended by the Attorney General who has a conflict of interest in the case using the same citizen’s money.