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Washington State Commissioner Reinstates “LCM” Mag Ban

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A so-called "large capacity magazine" sitting on top of empty casings.

In layman’s terms: a rogue Washington Court Commissioner reinstated the state’s ban on the sale of “large capacity magazines.”

Washington State Supreme Court Commissioner, Michael Johnston, has decided that his emergency stay will become permanent, ending the window for the sale of standard capacity magazines in the state until the case is adjudicated at a higher level.

As we previously reported, Washington Judge Gary Basher struck down the unconstitutional ban on the sale of “high capacity” magazines noting there was no historical precedent. Within 90 minutes, Commissioner Johnston reversed that order with an emergency stay.

In his opinion, Johnston noted that when the injunction was issued, retailers immediately advertised and potentially sold hundreds of “LCMs”. The 47-page decision attempts a historical analysis to tie the development of the semi-automatic firearm to mass shootings.

To explain adequately why I believe this to be so requires examination of (1) the historical development of firearms magazines generally, (2) the historical development of LCMs, (3) the mass shooting problem associated with LCMs, (4) the legislative response to that problem, and (5) multiple issues arising from the superior court’s decision invalidating and enjoining the legislative response. We start with some basic history on firearm magazines.

Commissioner Johnston made a concerted effort to tell Americans they don’t need “assault weapons” like the AR-15, which is the most popular semi-automatic rifle in circulation, and by far covered under the “common use” doctrine. In the process he made up his own facts on the matter:

Turning to self-defense, the AR15 and its many variants, and the AK-47 and its progeny are really military rifles designed for prevailing in a fire fight, putting out lots of concentrated semiautomatic fire in a matter of seconds in order to kill or incapacitate military or paramilitary opponents. The same can be said for battle rifles, though it seems they are less commonly used in mass shooting incidents.

Petitioners cannot point to any history that assault weapons are traditionally and commonly used to defend oneself at home—be it a house, apartment, or farm/ranch— or that such weapons are necessary and essential for that purpose. Assault weapons are complex, unwieldy to operate, and pose an increased risk of hitting innocent bystanders with stray shots.

The judicial sleight of hand used by the Commissioner to make the stay permanent centered around his interpretation of the constitutionality of the case:

Petitioners contend the superior court committed obvious error by not addressing their Second Amendment claims. But this case is not centered on the Second Amendment. Petitioners instead grounded their action specifically on an alleged violation of article I, section 24 of the Washington Constitution.

The Commissioner’s decision stinks of judicial activism, only vaguely mentioned the Constitution and previous Supreme Court precedent, and is likely to be appealed.

It should also be noted, that there is no prohibition on the number of 10-round magazines one may have in the State of Washington, making the ban a moot point.

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