State v. Gator's Custom Guns, Inc.

568 P.3d 278

• Court: Washington Supreme Court
• Decided: May 8, 2025
• Docket: 102,940-3
• Status: Published

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON MAY 8, 2025

IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON SARAH R. PENDLETON MAY 8, 2025 SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) No. 102940-3 Appellant, ) ) v. ) ) En Banc GATOR’S CUSTOM GUNS, INC., ) a Washington for-profit corporation, ) and WALTER WENTZ, an ) Filed: May 8, 2025 individual, ) ) Respondents. ) )

JOHNSON, J.—This case involves a constitutional challenge to Engrossed

Substitute Senate Bill 5078 (ESSB 5078),1 which prohibits the manufacture,

distribution, importation, and sale of firearm magazines with the capability of

holding more than 10 rounds of ammunition. Gator’s Custom Guns Inc. alleges

ESSB 5078 violates the right to bear arms protected by article I, section 24 of the

1 67th Leg., Reg. Sess. (Wash. 2022). State v. Gator’s Custom Guns, No. 102940-3

Washington Constitution and the Second Amendment to the United States

Constitution. In addition to defending the constitutionality of ESSB 5078, the State

has requested reassignment to another superior court in the event that we find in its

favor. We hold that ESSB 5078 does not violate either the Washington or United

States constitutional protection of the right to bear arms because large capacity

magazines (LCMs) are not “arms” within the meaning of either constitutional

provision, nor is the right to purchase LCMs an ancillary right necessary to the

realization of the core right to possess a firearm in self-defense. However, we deny

the State’s request for reassignment.

FACTS AND PROCEDURAL HISTORY

In 2022, the Washington State Legislature enacted ESSB 5078, codified at

RCW 9.41.010, .370 , and .375. ESSB 5078 prohibits the “manufacture, import,

distribution, or [sale]” of any “large capacity magazine” in Washington. RCW

9.41.370(1). LCMs are defined as “ammunition feeding device[s] with the capacity

[capable] to accept more than 10 rounds of ammunition.” RCW 9.41.010(25).

ESSB 5078 also creates a claim under the Washington Consumer Protection Act

(CPA), ch. 19.86 RCW, for violations of the LCM ban. RCW 9.41.375. When

enacting ESSB 5078, the Washington State Legislature found:

Firearms equipped with large capacity magazines increase casualties by allowing a shooter to keep firing for longer periods of time without reloading. Large capacity magazines have been used in all 10 of the deadliest mass shootings since 2009, and [in] mass shooting events

2 State v. Gator’s Custom Guns, No. 102940-3

from 2009 to 2018 . . . the use of large capacity magazines caused twice as many deaths and 14 times as many injuries. Documentary evidence following gun rampages, including the 2014 shooting at Seattle Pacific University, reveals many instances where victims were able to escape or disarm the shooter during a pause to reload, and such opportunities are necessarily reduced when large capacity magazines are used. . . . Based on this evidence, . . . the legislature finds that restricting the sale, manufacture, and distribution of large capacity magazines is likely to reduce gun deaths and injuries.

LAWS OF 2022, ch. 104, § 1.

Gator’s, a Kelso-based gun store, allegedly continued to sell prohibited

LCMs after ESSB 5078 went into effect. In July 2023, the Washington attorney

general issued a civil investigative demand, and in August, Gator’s filed a petition

to set aside the demand as invalid and unenforceable, alleging that ESSB 5078

violates the right to bear arms as protected by article I, section 24 of the

Washington Constitution. 2 In September, the State separately filed a CPA

enforcement action against Gator’s and its owner, Walter Wentz, and Gator’s

answer raised the unconstitutionality of ESSB 5078 under both constitutions as an

affirmative defense. The Cowlitz County Superior Court ordered the two cases

consolidated.

2 The State alleges that Gator’s made the intentional choice not to plead a Second Amendment challenge in its petition to set aside the civil investigative demand to avoid removal to federal court. Regardless, the Second Amendment issue was pleaded as an affirmative defense in Gator’s answer to the State’s CPA action, which was consolidated with Gator’s petition, and thus the superior court’s order addresses the Second Amendment claim.

3 State v. Gator’s Custom Guns, No. 102940-3

The parties cross motioned for summary judgment. The superior court

granted summary judgment in favor of Gator’s, finding ESSB 5078

unconstitutional under both article I, section 24 and the Second Amendment and

enjoined its enforcement. The State sought review directly in this court, and

Commissioner Michael Johnston issued an emergency order staying the superior

court’s ruling pending our review. This court granted direct review and maintained

the stay. 3

ANALYSIS

I. LCMs Are Not Protected “Arms”

Review of the constitutionality of a statute is de novo. Bennett v. United

States, 2 Wn.3d 430, 441, 539 P.3d 361 (2023). Article I, section 24 of the

Washington Constitution provides that “[t]he 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.” The Second Amendment to the

United States Constitution provides that “[a] well regulated militia, being

necessary to the security of a free state, the right of the people to keep and bear

3 We have accepted amici briefs from the National Rifle Association of America, the Firearms Policy Coalition, the Gunowners of America Inc. et al., the National Shooting Sports Foundation Inc., the Goldwater Institute, the Alliance for Gun Responsibility and Brady Center to Prevent Gun Violence, the NAACP Alaska/Oregon/Washington State Area Conference, and the Second Amendment Foundation.

4 State v. Gator’s Custom Guns, No. 102940-3

arms, shall not be infringed.” The United States Supreme Court has held that this

provision protects the right to keep and bear arms as a means of self-defense. N.Y.

State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 17, 142 S. Ct. 2111, 213 L.

Ed. 2d 387 (2022) (hereinafter Bruen). That right is fully applicable to the states

through the Fourteenth Amendment. McDonald v. City of Chicago, 561 U.S. 742,

771-76, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010) (partial plurality opinion).

Although we “interpret the state right separately and independently of its

federal counterpart,” State v. Jorgenson, 179 Wn.2d 145, 155, 312 P.3d 960

(2013), we have interpreted the meaning of the word “arms” using Second

Amendment precedent. See City of Seattle v. Evans, 184 Wn.2d 856, 869, 366 P.3d

906 (2015) (“[T]his approach [to the parameters of the right to bear arms] . . . is

rooted in the United States Supreme Court’s decision in Heller.” 4). Thus, our

interpretation of the scope of the two protections—that is, the meaning of “arms”

under article I, section 24 and the Second Amendment, is not inconsistent. In other

words, an “arm” under article I, section 24 must be an “arm” under the Second

Amendment and vice versa. Accordingly, we begin by ascertaining whether ESSB

5078 regulates “arms” within the meaning of these provisions, guided by both the

4 District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).

5 State v. Gator’s Custom Guns, No. 102940-3

United States Supreme Court precedent that gives meaning to the plain text of the

Second Amendment and our own cases that apply those precedents.

The State argues ESSB 5078 falls outside both protections of the right to

bear arms because LCMs are neither “arms” nor commonly used for self-defense.

The State argues that the plain text of the two provisions applies only to “arms,”

and that LCMs cannot be construed as “arms” because they are not weapons but

merely a subclass of containers for ammunition cartridges that are added to

weapons to make them “more capable of mass murder.” Appellant’s Br. at 24. The

State’s expert witness, Professor Dennis Baron, testified that English speakers

during the Founding and Reconstruction eras would have understood the term

“arms” to refer to weapons, not ammunition or cartridge boxes (the historical

analog to magazines). 4 Clerk’s Papers (CP) at 1405-06. Further, the State argues

that LCMs are not “traditionally or commonly used for self-defense” because they

are “military-style weapons” equipped to serve “combat functions, not self-defense

functions.” Appellant’s Br. at 28-29 (boldface omitted).5 The State argues that

5 Citing Nat’l Ass’n for Gun Rights v. Lamont, 685 F. Supp. 3d 63, 101 (D. Conn. 2023) (“LCMs were originally designed for military use in World War I and did not become widely available for civilian use until the 1980s.”); Kolbe v. Hogan, 849 F.3d 114, 125 (4th Cir. 2017) (LCMs “‘are particularly designed and most suitable for military and law enforcement applications.’” (quoting court papers)), abrogated on other grounds by Bruen, 597 U.S. 1; BUREAU OF ALCOHOL, TOBACCO, FIREARMS & EXPLOSIVES, U.S. DEP’T OF JUST., STUDY ON THE IMPORTABILITY OF CERTAIN SHOTGUNS 5 (Jan. 2011) (“[L]arge capacity magazines are a military feature.”), https://www.atf.gov/resource-center/docs/january-2011-importability-certain- shotgunspdf/download [https://perma.cc/C756-3L69].

6 State v. Gator’s Custom Guns, No. 102940-3

LCMs have “virtually no utility for self-defense” because “individuals almost

never fire more than ten rounds in self-defense,” and instead the average number of

shots fired in self-defense is merely 2.2. Appellant’s Br. at 30, 31; 5 CP at 1510

(expert report of Lucy P. Allen).

The superior court held that LCMs are “arms” because LCMs are

magazines. It reasoned that the purpose of a magazine is to facilitate the function

of a semiautomatic weapon, and thus magazines are a “critical functional

component” of a firearm or, in Gator’s words, an “integral component” of a

firearm. 6 CP at 2109-63; Resp’ts’ Br. at 10. Accordingly, the superior court

“infer[red] from the record . . . that magazines are commonly and lawfully

possessed by law abiding citizens for lawful purposes.” 6 CP at 2121. Further,

Gator’s argues that because there are between “30 million to 159.8 million” LCMs

in circulation, “[t]hey are common and therefore protected.” Resp’ts’ Br. at 51

(citing CP at 1029), 52. To assert that these LCMs are used for self-defense,

Gator’s relies on William English’s 2021 National Firearms Survey: Analysis of

Magazine Ownership and Use, asserting that 48 percent of gun owners have owned

LCMs, and 71 percent of those individuals reported that they owned them for

“defensive purposes.” William English, 2021 National Firearms Survey: Analysis

of Magazine Ownership and Use 4 (Georgetown McDonough Sch. of Bus.,

7 State v. Gator’s Custom Guns, No. 102940-3

Research Paper No. 4444288, 2023), https://ssrn.com/abstract=4444288.6 Gator’s

also argues that the State’s assertion that LCMs are designed for military use is

actually evidence in favor of a weapon’s classification as a protected “arm”

because certain knives have been found to be “arms” due to their military origins

and purpose. Resp’ts’ Br. at 39 (citing Evans, 184 Wn.2d at 867-68, 870).

In Heller, the United States Supreme Court held that “the Second

Amendment extends, prima facie, to all instruments that constitute bearable arms,

even those that were not in existence at the time of the founding,” and the Court

interpreted “arms” to include “‘any thing that a man wears for his defence, or takes

into his hands, or useth in wrath to cast at or strike another.’” 554 U.S. at 582, 581

(quoting 1 TIMOTHY CUNNINGHAM, A NEW AND COMPLETE LAW DICTIONARY

(1771)). In Evans, this court evaluated whether a small, fixed-blade “paring” knife,

carried for self-defense, was covered by the Washington Constitution by surveying

the scope of “arms” under the Second Amendment, and in particular in light of the

United States Supreme Court’s interpretation of the term in Heller. 184 Wn.2d

856. We held that

the right to bear arms protects instruments that are designed as weapons traditionally or commonly used by law abiding citizens for 6 But see Deborah Azrael et al., A Critique of Findings on Gun Ownership, Use, and Imagined Use from the 2021 National Firearms Survey: Response to William English, 78 SMU L. REV. (forthcoming 2025), https://ssrn.com/abstract=4894282 (discussing various methodological concerns with the English study, including inaccuracies associated with the format of the study and the survey’s small sample size, ambiguous questions, significant disparity with other reputable surveys, and failure to disclose the survey’s source of funding).

8 State v. Gator’s Custom Guns, No. 102940-3

the lawful purpose of self-defense. In considering whether a weapon is an arm, we look to the historical origins and use of that weapon, noting that a weapon does not need to be designed for military use to be traditionally or commonly used for self-defense. We will also consider the weapon’s purpose and intended function.

Evans, 184 Wn.2d at 869 (emphasis added). We determined that although some

fixed-blade knives could be considered “arms,” the origins, use, purpose, and

function of paring knives were culinary, in contrast to other knives that were

“designed for and historically used in battle.” Evans, 184 Wn.2d at 872. We

concluded that although paring knives could be used as a weapon for self-defense,

not all instruments that “may plausibly be used for self-defense” are protected, and

the paring knife was not an “arm” under section 24. Evans, 184 Wn.2d at 873.

We conclude that LCMs are not protected by article I, section 24 because (1)

LCMs are not instruments designed as weapons, (2) LCMs are not traditionally or

commonly used for self-defense, and (3) the right to purchase LCMs is not among

the ancillary rights necessary to the realization of the core right to bear arms in

self-defense.

In order to determine whether LCMs are “instruments that are designed as

weapons traditionally or commonly used by law abiding citizens for the lawful

purpose of self-defense,” it is first logically necessary to determine whether they

are even instruments designed as weapons. Evans, 184 Wn.2d at 869. First, LCMs

are not weapons—they are attachments to weapons, or accessories. Or, in the

9 State v. Gator’s Custom Guns, No. 102940-3

words of Heller’s historical definition of “arms,” LCMs are not used “to cast at . . .

another” because they are merely attached to a firearm in order to modify the

firearm’s capacity “to cast at . . . another” without reloading—the LCM itself does

not cast the round but feeds the round into the firearm. Further, it is not factually

accurate to say that LCMs are “integral components” of firearms. Although the

parties agree that certain types of firearms require the addition of a detachable

magazine to function, ESSB 5078 does not regulate detachable magazines. ESSB

5078 regulates only LCMs—magazines that are capable of accepting more than 10

rounds of ammunition—and Gator’s admits that no firearm requires a magazine of

this particular capacity to function. Thus, LCMs are not required for a firearm to

function. The superior court’s conclusion that LCMs are required for the firearm to

work and therefore they are “designed as weapons” is incorrect.

Further, the trial court’s logic that magazines are arms, and thus large

capacity magazines are necessarily also arms is problematic. First, we have never

held that magazines are arms, and the fact that a semiautomatic weapon will not

function as intended without one does not conclusively establish that they are.

More importantly, the constitutional protection of some instruments in a category

does not require the protection of all instruments belonging to the same category.

We expressly rejected that logic in Evans, when we held that the constitutional

protection of some knives did not require the protection of knives that did not have

10 State v. Gator’s Custom Guns, No. 102940-3

a self-defense purpose. See Evans, 184 Wn.2d at 871-72. That precedent

establishes that the proper inquiry is whether the instrument that is being regulated

is protected by the state constitution, not whether the instrument belongs to a class

that could not be banned as a whole. And the argument that magazines are

protected because they are an “integral component” of a certain type of firearm

(i.e., semiautomatics) is further troubling because, logically, the fact that the

government could not ban an entire class of firearm component without impairing

the right to bear arms does not mean that the government is not permitted to restrict

a specific subclass of that component. If we were to adopt Gator’s analysis on this

point, the constitutional right would protect not only firearms, but it would protect

all subtypes of components for all types of firearms.

In sum, we hold that LCMs are not “arms” in the constitutional sense

because they are designed to be attached to a weapon in order to modify it by

increasing that firearm’s ammunition capacity, and they are not designed for use as

a weapon themselves. 7

Accordingly, we hold that LCMs do not fit the constitutional definition of

“arms” before even reaching whether they are “commonly used for self-defense.”

7 It is also worth noting that federal firearm regulation does not treat magazines as firearms, as magazines do not fall within the definition codified in the Gun Control Act of 1968, 18 U.S.C. § 921(a)(3) (defining a “firearm” as “(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device”). For example, because magazines also do not fit the

11 State v. Gator’s Custom Guns, No. 102940-3

However, LCMs also fall outside either protection of the right to bear arms

because the provisions protect only those arms that are commonly used for self-

defense, and we have been presented with no credible and persuasive evidence or

argument that LCMs are commonly used for such a purpose. Although Gator’s

offers ownership statistics, whether LCMs are common in circulation does not

inform this court whether they are “commonly used for self-defense,” as how many

LCMs are owned has no bearing on what those LCMs are actually used for. To that

point, there is only minimal and highly contested evidence, which we do not find

sufficient to bear Gator’s burden to prove LCMs fall within constitutional

protection.

Further, although in Evans the military origins or use of certain knives was

useful for determining whether those knives were arms and protected, that

evidence was informative because it was not clear whether the purpose of the

knives was for combat or utility. 184 Wn.2d at 871-72. Here, it is clear that LCMs

are attached to firearms in order to increase their ammunition capacity above 10

rounds, and there is undoubtedly a combat purpose behind the use of firearms. But

our holding that “a weapon does not need to be designed for military use to be

traditionally or commonly used for self-defense” does not establish whether such a

statute’s definition of “ammunition,” persons not permitted to possess firearms or ammunition under 18 U.S.C. § 922(g) may still possess magazines.

12 State v. Gator’s Custom Guns, No. 102940-3

purpose is generally evidence for or against the weapon’s qualification under the

Evans test. 184 Wn.2d at 869. Rather, it is better understood as a negation of the

argument that a weapon can be protected only if it is designed for military use—a

point that was relevant in the context of analyzing whether a paring knife was

disqualified from protection given that it was unlike knives that had a clearer

combat purpose, but is not relevant when analyzing an instrument that is

indisputably intended for combat. No showing has been made that the origins, use,

purpose, or intended function of LCMs support the conclusion that they are

commonly used for self-defense, and thus we hold that they are not within the

scope of the rights to bear arms under the Washington and United States

Constitutions.

The United States Supreme Court has interpreted the “central component” of

the Second Amendment to be the “inherent right of self-defense.” Heller, 554 U.S.

at 599 (emphasis omitted), 628. Accordingly, federal courts of appeals have found

the Second Amendment also “protects ancillary rights necessary to the realization

of the core right to possess a firearm for self-defense.” Teixeira v. County of

Alameda, 873 F.3d 670, 677 (9th Cir. 2017) (recognizing right to purchase arms,

but no corresponding right to sell them); Jackson v. City & County of San

Francisco, 746 F.3d 953, 967 (9th Cir. 2014) (recognizing right to purchase

ammunition), cert. denied, 576 U.S. 1013 (2015), abrogation on other grounds

13 State v. Gator’s Custom Guns, No. 102940-3

recognized by Baird v. Bonta, 81 F.4th 1035, 1043 (9th Cir. 2023); Ezell v. City of

Chicago, 651 F.3d 684, 704 (7th Cir. 2011) (recognizing right to access gun ranges

in order to acquire and maintain proficiency in firearm use). These rights implicate

the Second Amendment because the constitutional protection is broader than

simply protecting “arms”—it protects individual conduct that falls within the scope

of the right to bear arms in self-defense, and that implies protection of

corresponding rights that are necessary to give the right to possess a firearm for

self-defense meaning. See Bruen, 597 U.S. at 17 (“[W]hen the Second

Amendment’s plain text covers an individual’s conduct, the Constitution

presumptively protects that conduct.” (emphasis added)). For example, in Jackson,

the Ninth Circuit Court of Appeals found a prohibition on the sale of hollow-point

ammunition regulated conduct within the scope of the Second Amendment,

reasoning that although the Second Amendment does not explicitly protect

ammunition, “without bullets, the right to bear arms would be meaningless. A

regulation eliminating a person’s ability to obtain or use ammunition could thereby

make it impossible to use firearms for their core purpose.” 746 F.3d at 967.

The right to purchase LCMs does not belong among the “ancillary rights”

recognized in Teixeira, Jackson, and Ezell. Unlike the right to purchase arms, the

right to acquire ammunition, or the right to access gun ranges, the ability to

purchase LCMs is not necessary to the core right to possess a firearm in self-

14 State v. Gator’s Custom Guns, No. 102940-3

defense. Here, without the right to purchase LCMs, an individual may still own,

possess, operate, repair, and maintain proficiency with firearms, as LCMs are not

an “integral component” of firearms. As noted above, some firearms may require a

magazine to function as intended, but there are no firearms that require an LCM to

function. This is unlike ammunition, which is an integral component of a firearm

because ammunition is necessary for a firearm to function as intended: a lack of

ammunition would render the firearm a paperweight—or, at best, a scarcely

effective bludgeoning tool—and it no longer serves its function for the core

purpose of self-defense. In contrast, without an LCM, a semiautomatic firearm is

still capable of firing (up to 10 rounds, if it is equipped with a magazine falling

outside ESSB 5078’s restriction, or 1 round at a time, if it is equipped with none at

all) until the operator must simply reload to continue operating the firearm as

desired. This fulfills the firearm’s purpose as a tool for realizing the core right of

self-defense. This regulation does not limit the number of bullets or magazines that

may be purchased or possessed. By restricting only magazines of a capacity

greater than 10, the statute effectively regulates the maximum capacity of

magazines, leaving the weapon fully functional for its intended purpose. Thus, we

are not convinced that the restriction here renders the right to bear arms in self-

defense meaningless. Indeed, we can safely say that individuals are still able to

15 State v. Gator’s Custom Guns, No. 102940-3

exercise the core right to bear arms when they are limited to purchasing magazines

with a capacity of 10 or fewer.

Because LCMs are not “arms” in the constitutional sense, and the right to

purchase LCMs is not among the ancillary rights protected by the Second

Amendment, neither article I, section 24 nor the Second Amendment offer any

protection to against ESSB 5078’s restriction on LCMs. Thus, the superior court’s

holding that ESSB 5078 is unconstitutional under those provisions was incorrect.

Accordingly, we reverse the trial court’s order and remand for further proceedings

consistent with this opinion.

II. Reassignment

For the aforementioned reasons, we find that ESSB 5078 complies with the

constitutional safeguards of the Second Amendment as well as article I, section 24

of the Washington Constitution. Accordingly, we reverse the superior court’s order

granting Gator’s motion for summary judgement and denying that of the State, and

remand for further proceedings consistent with our holding. The result of this

outcome is that the superior court is left to consider the State’s consumer-

protection enforcement action against Gator’s for violation of the LCM ban. In

such a circumstance, the State has requested reassignment on remand.

Parties generally seek reassignment to another judge through a motion for

recusal in the trial court, but a party may also seek reassignment for the first time

16 State v. Gator’s Custom Guns, No. 102940-3

on appeal where, “for example, the trial judge will exercise discretion on remand

regarding the very issue that triggered the appeal and has already been exposed to

prohibited information, expressed an opinion as to the merits, or otherwise

prejudged the issue.” State v. McEnroe, 181 Wn.2d 375, 387, 333 P.3d 402 (2014)

(footnotes omitted). Additionally, “where review of facts in the record shows the

judge’s impartiality might reasonably be questioned, the appellate court should

remand the matter to another judge.” State v. Solis-Diaz, 187 Wn.2d 535, 540, 387

P.3d 703 (2017).

In McEnroe, we declined to reassign a case on the basis that the trial judge

allegedly “‘ignored binding precedent’” because “legal errors alone do not warrant

reassignment” and our decision limited the trial court’s discretion as to the issue

that was appealed. 181 Wn.2d at 388-89 (quoting court papers) (“Even if [the trial

judge] holds ‘strongly held views’ about the contents of charging documents, he is

bound on remand by this court's decision.”). In Solis-Diaz, we granted

reassignment where the same judge that originally sentenced the defendant was

assigned to resentence the defendant after an appeal, the judge imposed the same

sentence at resentencing, and then a subsequent appeal required the same judge to

resentence that same defendant a third time, because we found the record reflected

the sentencing judge’s “frustration and unhappiness at the Court of Appeals

requiring him to address anew [the defendant’s sentence].” 187 Wn.2d at 541, 538

17 State v. Gator’s Custom Guns, No. 102940-3

(“[The trial judge] opined that the sentence he had previously imposed was

‘precisely what the Legislature intended’ in the circumstances of this case.”

(quoting court papers)).

Here, Judge Bashor’s legal errors in determining that ESSB 5078 was

unconstitutional are insufficient to warrant reassignment because our order that the

statute is constitutional removes Judge Bashor’s discretion as to the validity of

ESSB 5078 for the remainder of the case, which will then relate only to consumer-

protection enforcement. Although Judge Bashor will have discretion as to the

remedies and penalties for Gator’s alleged violation of ESSB 5078, the “issue that

triggered the appeal” was limited to the validity of the statute Gator’s is alleged to

have violated. Given an order that the statute is constitutional and therefore valid,

Judge Bashor will be bound to our decision on that issue. Although the record

reflects Judge Bashor’s strong feelings as to the constitutionality of ESSB 5078,

this does not rise to the level of partiality present in Soliz-Diaz, because those

feelings do not relate to the issues for which Judge Bashor maintains discretion

after we order ESSB 5078 is constitutional, unlike the sentencing judge in Soliz-

Diaz, whose feelings related to an issue for which he maintained significant

discretion. Thus, we deny the State’s request to reassign the case on remand.

18 State v. Gator’s Custom Guns, No. 102940-3

CONCLUSION

We hold ESSB 5078 is constitutional under both the Washington and United

States Constitutions. We reverse the superior court and remand for proceedings

consistent with that order but deny the State’s request for reassignment.

:(&21&85

19 State v. Gator’s Customs Guns et al.

No. 102940-3

GORDON McCLOUD, J. (dissenting)—The Second Amendment protects

the individual right to keep and bear arms. N.Y. State Rifle & Pistol Ass’n, Inc. v.

Bruen, 597 U.S. 1, 28, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022); District of

Columbia v. Heller, 554 U.S. 570, 592, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008);

McDonald v. City of Chicago, 561 U.S. 742, 780, 130 S. Ct. 3020, 177 L. Ed. 2d

894 (2010) (plurality portion); U.S. CONST. amends. II, XIV (incorporating amend.

II). More specifically, it protects the right of law-abiding people 1 to keep and bear

arms “‘in common use’”—not just arms that the government approves of. 2 And it

protects that conduct when it is done “for lawful purposes” including, but not

limited to, “self-defense” 3—not just when it involves returning fire, as the State

seems to contend. Finally, the Second Amendment’s protection of that conduct is

1 United States v. Rahimi, 602 U.S. 680, 699, 144 S. Ct. 1889, 219 L. Ed. 2d 351 (2024) (laws restricting possession of arms by “‘felons or the mentally ill’” are “‘presumptively lawful’” (quoting Heller, 554 U.S. at 626, 627 n.26)). 2 See Heller, 554 U.S. at 624 (quoting U.S. v. Miller, 307 U.S. 174, 179, 59 S. Ct. 816, 83 L. Ed. 1206 (1939)), 628, 636. 3 Heller, 554 U.S. at 582; McDonald, 561 U.S. at 780 (plurality portion).

1 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

the highest in “the home, where the need for defense of self, family, and property

is most acute.” Heller, 554 U.S. at 628; McDonald, 561 U.S. at 780 (plurality

portion).

Engrossed Substitute Senate Bill 5078 (ESSB 5078), 4 which bans the

manufacture, import, distribution, or sale of any firearm magazine capable of

holding more than 10 rounds of ammunition, 5 even for self-defense inside the

home, violates these constitutional protections.

Millions of law-abiding people have chosen semiautomatic firearms as the

primary tool for lawful purposes such as self-defense in the home. Heller, 554 U.S.

at 628-29; McDonald, 561 U.S. at 767-78. Millions of people have chosen to feed

ammunition into those commonly used firearms with magazines capable of holding

more than 10 rounds. 6 It necessarily follows that the Second Amendment protects

the arms-bearing conduct at issue here, that is, keeping and bearing operable

4 67th Leg., Reg. Sess. (Wash. 2022). 5 RCW 9.41.370(1), .010(25). 6 “Although data are imprecise, experts estimate that approximately half of privately owned magazines hold more than ten rounds.” Duncan v. Bonta, __ F.4th __ (9th Cir. 2025), 2025 WL 867583, at *4 (Mar. 20, 2025). “‘Most pistols are manufactured with magazines holding ten to seventeen rounds, and many popular rifles are manufactured with magazines holding twenty or thirty rounds.’” Id. (quoting Kolbe v. Hogan, 849 F.3d 114, 129 (4th Cir. 2017)).

2 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

semiautomatic firearms with commonly used magazines for self-defense and other

lawful purposes—including in the home. 7

The State argues—and the majority agrees—that ESSB 5078 does not

implicate “arms-bearing conduct” at all. They are incorrect. First, the State argues

that magazines are not firearms because they’re accessories or components, and

accessories or components don’t count for Second Amendment purposes. But the

Second Amendment protects the conduct of bearing arms for self-defense and

other lawful “purposes”—it does not just protect inanimate objects like firearms or

magazines in isolation—and it is hard to imagine a semiautomatic firearm fulfilling

its key purposes, including the purpose of self-defense, without a magazine. (The

majority’s suggestion that loading cartridges individually by hand “leav[es] the

weapon fully functional for its intended purpose,” majority at 15, betrays a

misunderstanding of both “semiautomatic” and “self-defense.”) Next, the State

argues that magazines holding more than 10 cartridges might be in common use,

but they are not in common use “for self-defense” because one limited, non-peer-

7 The State argues that ESSB 5078 is not a “total ban” on large capacity magazines (LCMs) because it does not dispossess individuals of LCMs they owned before the law went into effect. But the law prevents any new LCMs from lawfully entering Washington. People who lawfully own LCMs now cannot replace them if they break. And no one can legally obtain a new LCM in the state. That certainly appears to effectively ban the purchase and use of LCMs in Washington.

3 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

reviewed study concluded that people fired an average of only 2.2 rounds in self-

defense. 5 Clerk’s Papers (CP) at 1510. But we don’t measure whether an arm is in

“common use” for “self-defense” or “other lawful purposes” by counting the

number of rounds an “average” desperate victim is able to discharge when forced

to return fire.

The only way for the State to avoid the conclusion that ESSB 5078 violates

the Second Amendment is to show that similar laws from our nation’s early history

limited the right to bear arms in a similar way and for a similar reason—as the

United States Supreme Court says, for a similar “how and why.” N.Y. State Rifle,

597 U.S. at 29. The State fails to make this showing. Most of the laws it cites as

supposedly similar regulate carrying, rather than banning a common arm

completely (as ESSB 5078 does). Other laws the State cites as historical analogs

are from the 1930s and later, well outside the time periods the United States

Supreme Court has identified as relevant to this inquiry.

Finally, the State argues that we should view our nation’s early limits on the

right to keep and bear arms at an extremely high level of generality—so high that

we characterize those old laws as barring weapons once society weighs their utility

against their danger and decides that they are too dangerous. But that is precisely

the sort of policy-laden interest-balancing that the United States Supreme Court

4 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

has explicitly barred under the Second Amendment. Id. at 22-23 (quoting Heller,

554 U.S. at 634; McDonald, 561 U.S. at 790-91 (plurality portion)). And it is the

sort of interest-balancing that repressive governments have historically used to

suppress opposition.8

8 The repressive governmental practice of depriving disfavored groups of the ability to act in self-defense has a long and sordid history. The Heller Court summarized the long history of English rulers disarming dissidents and disfavored religious groups, including George III’s attempts to disarm his political opponents in the American colonies. 554 U.S. at 594. And many early United States’ laws restricted enslaved people from possessing firearms. Robert J. Cottrol and Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309, 336 n.129 (1991) (citing Act of Feb. 25, 1840, no. 20, § 1, 1840 Acts of Fla. 22-23; Act of Dec. 19, 1860, no. 64, § 1, 1860 Acts of Ga. 56; Act of Apr. 8, 1811, ch. 14, 1811 Laws of La. 50, 53-54; Act of Jan. 1, 1845, ch. 87, §§ 1, 2, 1845 Acts of N.C. 124). After the Civil War, “[m]any legislatures amended their laws prohibiting slaves from carrying firearms to apply the prohibition to free blacks as well.” McDonald, 561 U.S. at 845-46 (Thomas, J., concurring in part) (footnote omitted) (citing Act of Dec. 23, 1833, § 7, 1833 Ga. Acts 226, 228; HERBERT APTHEKER, NAT TURNER’S SLAVE REBELLION 74-76, 83-94 (1966); Act of Mar. 15, 1852, ch. 206, 1852 Miss. Laws 328; Act of Jan. 31, 1831, 1831 Fla. Acts 30). American history is also filled with similarly racist gun control laws aimed at keeping arms out of the hands of Native Americans. See, e.g., 1633 VA. CODE Act X; 1798 KY. ACTS § 106; 1850 UTAH LAWS 96, § 1; 1827 FLA. ACTS 46, § 1; 1835 MO. REV. STAT § 2; see also Ann E. Tweedy, “Hostile Indian Tribes . . . Outlaws, Wolves, . . . Bears . . . Grizzlies and Things Like That?” How the Second Amendment and Supreme Court Precedent Target Tribal Self-Defense, 13 U. PA. J. CONST. L. 687, 730 (2011) (discussing President Lincoln’s 1865 Proclamation that “‘all persons detected in that nefarious traffic [of furnishing hostile Indians with arms and munitions of war] shall be arrested and tried by court-martial at the nearest military post’” (alteration in original) (quoting Proclamation No. 28, 13 Stat. 753 (Mar. 17, 1865))). As late as 1925, Congress enacted a law barring the sale of arms or ammunition “‘within any district or country occupied by uncivilized or hostile Indians,’” and it remained in force until 1953. Id. at 731 (citing 25 U.S.C. § 266 (1925-1926), repealed by 67 Stat. 590 (1953)). And in the 1930s, Nazis seized guns from Jews as part of their path to power. See, e.g., Stephen P. Halbrook, How the Nazis Used Gun Control, NAT’L REV. (Dec. 2, 2013, 9:00 AM),

5 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

It necessarily follows that the Second Amendment protects the right of law-

abiding individuals to keep and bear semiautomatic weapons equipped with

magazines in common use for lawful purposes, especially in the home. The new

state statute violates that Bill of Rights protection because it effectively bans all

law-abiding individuals from acquiring and possessing an arm that is in common

use for lawful purposes.

In a contest between a state statute and the United States Constitution, the

judicial branch has the duty to uphold the Constitution. This is true even when the

portion of the Constitution at issue is the Second Amendment. 9

I therefore respectfully dissent.

I. The Second Amendment Protects the Conduct of Keeping and Bearing Arms in Common Use for “Lawful Purposes Like Self Defense”

The Second Amendment provides, “A well regulated militia, being

necessary to the security of a free state, the right of the people to keep and bear

https://www.nationalreview.com/2013/12/how-nazis-used-gun-control-stephen-p- halbrook/; Jon Greenberg, Florida Lawmaker Mangles Nazi Gun Control History, POLITIFACT (Mar. 6, 2018), https://www.politifact.com/factchecks/2018/mar/06/david- simmons/florida-lawmaker-mangles-nazis-gun-control-history/ [https://perma.cc/AQ4Y- FC44]. 9 ESSB 5078 also violates article I, section 24, as discussed in Part II infra.

6 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

arms, shall not be infringed.” The Second Amendment codified a preexisting

fundamental right held by “the people” that is “exercised individually and belongs

to all Americans.” Heller, 554 U.S. at 581. That right is fully incorporated against

the states through the Fourteenth Amendment. McDonald, 561 U.S. at 779-80, 790

(plurality portion).

The specific right that the Second Amendment protects is the right of law-

abiding individuals to keep and carry “all instruments that constitute bearable

arms, even those that were not in existence at the time of the founding,” as long as

the arm is “‘in common use at the time’ for lawful purposes like self-defense.”

Heller, 554 U.S. at 582, 624 (quoting Miller, 307 U.S. at 179); see also McDonald,

561 U.S. 780 (plurality portion) (the Second Amendment protects

the “personal right to keep and bear arms for lawful purposes, most notably for

self-defense within the home”). “Thus, even though the Second Amendment’s

definition of ‘arms’ is fixed according to its historical understanding, that general

definition covers modern instruments that facilitate armed self-defense.” N.Y. State

Rifle, 597 U.S. at 28 (citing Caetano v. Massachusetts, 577 U.S. 411, 136 S. Ct.

1027, 194 L. Ed. 2d 99 (2016) (per curiam) (Second Amendment protects right to

keep and bear stun guns)).

7 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

Like most fundamental rights, “the right secured by the Second Amendment

is not unlimited.” Heller, 554 U.S. at 626. It is “not a right to keep and carry any

weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. For

example, the Second Amendment does not protect the right to keep and bear arms

that are “‘dangerous and unusual.’” Id. at 627 (emphasis added) (quoting 4

WILLIAM BLACKSTONE, COMMENTARIES *148). And it does not bar the government

from restricting dangerous individuals from possessing arms. United States v.

Rahimi, 602 U.S. 680, 699, 144 S. Ct. 1889, 219 L. Ed. 2d 351 (2024) (quoting

Heller, 554 U.S. at 626, 627 n.26). But, to reiterate, it does protect law-abiding

individuals’ right to keep and carry “all instruments that constitute bearable arms”

that are “‘in common use at the time’ for lawful purposes like self-defense.” Heller

554 U.S. at 582, 624 (quoting Miller, 307 U.S. at 179).

The United States Supreme Court recently reaffirmed these principles in

N.Y. State Rifle, laying out the test that controls this case:

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.

597 U.S. at 24 (emphasis added).

8 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

We therefore begin with the rule that the Second Amendment presumptively

protects “arms-bearing conduct,” Rahimi, 602 U.S. at 691—that is, conduct

relating to “bearable arms” that are “in common use” for lawful purposes

including, but not limited to, self-defense. As discussed below, magazines that hold

more than 10 rounds—what ESSB 5078 calls “large capacity magazines”

(LCMs)—are bearable arms that are in common use for lawful purposes.

Acquiring and using such arms therefore constitutes arms-bearing conduct

presumptively protected by the Second Amendment. Because ESSB 5078 severely

restricts this arms-bearing conduct, I would hold that the State has the burden to

show that the regulation is consistent with the nation’s history of firearms

regulation—a burden that in this case, the State fails to meet.

A. Magazines, including LCMs, are “bearable arms”

ESSB 5078, enacted in 2022, provides, “No person in this state may

manufacture, import, distribute, sell, or offer for sale any [LCM],” with certain

exceptions for law enforcement and military purposes. RCW 9.41.370(1).

According to that law, an LCM is “an ammunition feeding device with the capacity

to accept more than 10 rounds of ammunition.” RCW 9.41.010(25).

9 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

A “repeating firearm” is a firearm that is capable of firing multiple rounds of

ammunition without manual reloading. 10 In order to fire multiple rounds without

reloading, a repeating firearm uses a “magazine,” which is “a device that

automatically feeds ammunition into a firearm whenever the shooter fires a bullet.”

Duncan v. Bonta, __ F.4th __ (9th Cir. 2025), 2025 WL 867583, at *4. Thus, a

magazine is not an optional accessory for a repeating firearm. It is a defining

characteristic of a repeating firearm. As Gator’s Custom Guns 11 explains, “Without

a magazine inserted, a semiautomatic weapon will not function properly” and is

“essentially a single shot breechloader” like an old-fashioned musket. Resp’ts’ Br.

at 51, 54. And because the magazine functions as an ammunition feeding device, it

is not just a passive receptacle for storing ammunition like a cartridge box. 12

10 Repeating firearms include weapons like manually operated repeating rifles or shotguns, in which the user must perform a manual operation like pulling back a bolt to eject spent shells and reload, as well as semiautomatic weapons, which are capable of reloading the weapon automatically after each pull of the trigger. See, e.g., FIREARMS: AN ILLUSTRATED HISTORY (D.K. Publ’g 2014). 11 Respondents Gator’s Custom Guns Inc. and its owner, Walter Wentz. 12 The State argues that a magazine is analogous to a Revolutionary-War-era “cartridge box,” which was a container worn on the body that held individual rounds of ammunition that the user would manually load into a firearm. Appellant’s Br. at 46-47 (citing 4 CP at 1412 (expert report of Dennis Baron, PhD)); see also David B. Kopel & Joseph G.S. Greenlee, The History of Bans on Types of Arms Before 1900, 50 J. LEGIS. 223, 254 (2024). According to the State, cartridge boxes were historically considered accessories, not arms, so at the time of the nation’s founding, a magazine would have

10 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

Thus, magazines, including what ESSB 5078 defines as “LCMs,” fall

squarely within Heller’s definition of “arms” as “‘any thing that a [person] wears

for [their] defence, or takes into [their] hands, or useth in wrath to cast at or strike

another.’” Heller, 554 U.S. at 581 (quoting 1 TIMOTHY CUNNINGHAM, A NEW AND

COMPLETE LAW DICTIONARY (1771)). A magazine is essential to a user’s ability to

use a repeating firearm “to cast at or strike another” in the manner it was designed

to do.

The State argues that LCMs are not “bearable arms” because, while

semiautomatic weapons require some kind of magazine to function as intended, no

semiautomatic weapon specifically requires an LCM to function. Appellant’s Br. at

49. But that is irrelevant: “under [N.Y. State Rifle], a ‘modern instrument[] that

facilitate[s][13] armed self-defense’ is an arm entitled to the ‘prima facie’ protection

of the Second Amendment.” Nat’l Ass’n for Gun Rts. v. Lamont, 685 F. Supp. 3d

been considered an accessory, not an arm. Appellant’s Br. at 46-47. This argument relies on a fundamental misunderstanding of a magazine’s function. Like a cartridge box, a magazine stores ammunition. But unlike a cartridge box, a magazine is not just an inert container for ammunition: as described above, it uses a spring or other mechanism to feed rounds of ammunition into the gun’s firing chamber. It is an integral part of the firearm, like a trigger or a grip. Thus, a cartridge box is not a persuasive “historical analogue” to a magazine. 4 CP at 1417.

“Facilitate” means “to make easier or less difficult : free from difficulty or 13

impediment.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 812 (1993).

11 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

63, 94 (D. Conn. 2023) (most alterations in original) (emphasis added) (quoting

N.Y. State Rifle, 597 U.S. at 28 (citing Caetano, 577 U.S. at 411-12)). An LCM—

like all magazines—is incontrovertibly an instrument 14 that “facilitates armed self-

defense” because it supplies ammunition to a repeating firearm so that the firearm

functions as intended.

And, critically, the Second Amendment does not just protect “arms”—it

protects “arms-bearing conduct.” So it protects the right to purchase arms and

ammunition and the right to access gun ranges to maintain proficiency in firearm

use. Teixeira v. County of Alameda, 873 F.3d 670, 678 (9th Cir. 2017) (citing Ill.

Ass’n of Firearms Retailers v. City of Chicago, 961 F. Supp. 2d 928, 930 (N.D. Ill.

2014)); Jackson v. City & County of San Francisco, 746 F.3d 953, 967 (9th Cir.

2014) (right to purchase ammunition); Ezell v. City of Chicago, 651 F.3d 684, 704

(7th Cir. 2011) (right to access gun ranges); see also Miller, 307 U.S. at 179-80

(recognizing that “‘[t]he possession of arms also implied the possession of

ammunition’” (quoting 1 HERBERT L. OSGOOD, THE AMERICAN COLONIES IN THE

SEVENTEENTH CENTURY (1904))).

14 “Instrument” means “1 a : a means whereby something is achieved, performed, or furthered . . . . 2 : UTENSIL, IMPLEMENT.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1172 (1993).

12 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

The reason is that if law-abiding people cannot obtain a firearm, an integral

component of a firearm, or ammunition, or practice with firearms, then “the core

Second Amendment right to keep and bear arms for self-defense ‘wouldn’t mean

much.’” Teixeira, 873 F.3d at 677 (quoting Ezell, 651 F.3d at 704). Thus, as

numerous courts have found, the Second Amendment also protects acquisition and

possession of magazines, including LCMs. Nat’l Ass’n for Gun Rts., 685 F. Supp.

3d at 94 (“LCMs are ‘arms’ for purposes of the Second Amendment as defined in

[N.Y. State Rifle] and Heller.”). For example, in a case like this, which also

involved a bar on LCMs, the Third Circuit Court of Appeals reasoned that because

“magazines feed ammunition into certain guns, and ammunition is necessary for

such a gun to function as intended, magazines are ‘arms’ within the meaning of the

Second Amendment.” Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Att’y Gen. N.J.,

910 F.3d 106, 116 (3d Cir. 2018) (citing Jackson, 746 F.3d 953). 15

And, as the United States Court of Appeals for the District of Columbia

explained in another LCM ban case, “A magazine is necessary to make meaningful

15 Some of the federal cases cited above applied a pre-N.Y. State Rifle analysis that first asked if the regulation infringed on the right to keep and bear arms, then applied an interest-balancing test to determine if the regulation was constitutional. N.Y. State Rifle forbade the use of such interest-balancing tests when evaluating Second Amendment rights. Thus, those portions of the opinions are no longer good law. But N.Y. State Rifle did not disturb the portions of those opinions determining whether a regulation implicated the Second Amendment in the first instance.

13 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

an individual’s right to carry a handgun for self-defense. To hold otherwise would

allow the government to sidestep the Second Amendment with a regulation

prohibiting possession at the component level, ‘such as a firing pin.’” Hanson v.

District of Columbia, 120 F.4th 223, 232 (D.C. Cir. 2024) (reviewing injunction

and affirming district court’s ruling that party challenging LCM ban would very

likely succeed at showing that LCMs are Second Amendment arms) (quoting

Kolbe v. Hogan, 813 F.3d 160, 175 (4th Cir. 2016), rev’d en banc, 849 F.3d 114

(4th Cir. 2017)). ESSB 5078 is just such an attempt at sidestepping the Second

Amendment with “a regulation prohibiting possession at the component level.”

The State concedes that “it is possible that a restriction on all magazines

would infringe on the right to bear arms because it would make the weapons that

rely on them unusable.” Appellant’s Br. at 49. But it continues that a restriction on

LCMs does not regulate conduct within the scope of the Second Amendment

because such magazines “are not necessary for any weapon to fire exactly as

intended.” Id.

The State’s reasoning conflicts with controlling United States Supreme

Court precedent. Heller holds, “It is no answer to say, as petitioners do, that it is

permissible to ban the possession of handguns so long as the possession of other

firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that

14 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

the American people have considered the handgun to be the quintessential self-

defense weapon.” 554 U.S. at 629. Following Heller’s logic, the State cannot place

an arbitrary ban on magazines with a certain capacity just because magazines with

lesser capacities are still allowed. See also Jackson, 746 F.3d at 967 (law banning

one type of bullet regulated conduct within the scope of the Second Amendment

because bullets in general are necessary to “use firearms for their core purpose,”

even though law did not affect legality of other types of bullets).

The majority adds that an LCM falls outside the definition of “arm” because

it “does not cast the round, but feeds the round into the firearm.” Majority at 10.

Well, the grip, trigger, and receiver don’t “cast” the round either (the force from

the explosion of the primer and ignition of the propellant does). So examining

individual components of a firearm as the majority does leads to the absurd result

that the government can ban triggers, grips, receivers, or firing pins because none

of those integral components, in isolation, are capable of “cast[ing]” ammunition at

a target, either. 16 That can’t be right. It conflicts with the logic of Heller because it

16 The majority notes that Congress did not include magazines in its definition of “firearms” in the Gun Control Act of 1968, 18 U.S.C. § 921(a)(3). Majority at 11 n.7. But an act of Congress can’t change the meaning of the Constitution. And even if it could, that act of Congress recognizes that certain components of firearms can themselves be considered firearms: if an optional silencer can be considered a firearm, then certainly a necessary magazine can too. See 18 U.S.C. § 921(a)(3)(C).

15 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

ignores the fact that a firearm requires each of its core component parts to function

as intended. And it conflicts with the logic of N.Y. State Rifle, because that

decision made clear that the Second Amendment protects anything that

“facilitate[s] armed self-defense,” 597 U.S. at 28, and magazines of all sorts,

standard as well as what ESSB 5078 calls “large,” certainly do that. (The majority

does not even mention this definition of “arms” from N.Y. State Rifle.)

The majority also confuses the definitions of “arm” under state and federal

law. It is true that in City of Seattle v. Evans, we held that article I, section 24’s

right to bear arms was limited to “instruments that are designed as weapons

traditionally or commonly used by law-abiding citizens for the lawful purpose of

self-defense.” 184 Wn.2d 856, 869, 366 P.3d 906 (2015). But this definition of

protected “arms” from Evans differs from the definition of protected “arms” under

the Second Amendment precedent discussed above. Most notably, the United

States Supreme Court has never held that an instrument must be “designed as a

weapon” to enjoy Second Amendment protection. But the majority appears to hold

that the fact that so-called LCMs “are not designed for use as a weapon

themselves” means that they can’t be considered weapons by the United States

16 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

Supreme Court. Majority at 11. 17 That’s not logical. This court can look to Second

Amendment precedent to interpret our state constitutional right to bear arms; but

United States Supreme Court precedent—not our Evans decision—controls the

meaning of arms under the Second Amendment. 18

The result, under controlling Supreme Court precedent, is that magazines,

including LCMs, are “bearable arms.”

17 Further, the Evans definition seems broader than the Second Amendment definition to the extent that it protects weapons that are either “traditionally or commonly” used in self-defense. 184 Wn.2d at 869 (emphasis added). Heller and N.Y. State Rifle seem to require that an arm be “in common use” at the present time—in other words, not “dangerous and unusual” at the present time—to qualify for Second Amendment protection. E.g., N.Y. State Rifle, 597 U.S. at 47 (“Whatever the likelihood that handguns were considered ‘dangerous and unusual’ during the colonial period, they are indisputably in ‘common use’ for self-defense today.”). 18 The majority states that because this court has interpreted our state constitutional right to bear arms using United States Supreme Court Second Amendment precedent as guidance, it follows that “an ‘arm’ under article I, section 24 must be an ‘arm’ under the Second Amendment and vice versa.” Majority at 5 (emphasis added). This is a logical fallacy akin to saying that because all squares are rectangles, all rectangles must also be squares. See RUGGERO J. ALDISERT, LOGIC FOR LAWYERS: A GUIDE TO CLEAR LEGAL THINKING 220 (2012) (ebook). While this court is free to model our state constitutional analysis on Second Amendment precedent, as a matter of logic and the supremacy clause, it does not follow that Second Amendment precedent must follow our court’s analysis. U.S. CONST. art. VI, cl. 2.

17 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

B. LCMs are commonly used for lawful purposes including self- defense

As stated, “the Second Amendment protects the possession and use of

weapons that are ‘“in common use at the time”’” for lawful purposes including, but

not limited to, self-defense. N.Y. State Rifle, 597 U.S. at 21 (quoting Heller, 554

U.S. at 627 (quoting Miller, 307 U.S. at 179)).19 As courts across the country have

found, magazines with a capacity of more than 10 rounds are very commonly

possessed by law-abiding Americans. “Although data are imprecise, experts

estimate that approximately half of privately owned magazines hold more than ten

rounds.” Duncan, 2025 WL 867583, at *4. “‘Most pistols are manufactured with

magazines holding ten to seventeen rounds, and many popular rifles are

manufactured with magazines holding twenty or thirty rounds.’” Id. (quoting

Kolbe, 849 F.3d at 129).

In other words, “[t]here may well be some capacity above which magazines

are not in common use but . . . that capacity surely is not ten.” Heller v. District of

19 The majority errs by stating that the Second Amendment “protect[s] only those arms that are commonly used for self-defense.” Majority at 12. While “self-defense is ‘the central component of the [Second Amendment] right,’” it is not the only component. N.Y. State Rifle, 597 U.S. at 32-33 (alteration in original) (quoting Heller, 554 U.S. at 599, and citing McDonald, 561 U.S. at 767). Heller refers to the right to keep and bear arms for “traditionally lawful purposes, such as self-defense within the home.” 554 U.S. at 577 (emphasis added).

18 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

Columbia, 399 U. S. App. D.C. 314, 670 F.3d 1244, 1261 (2011) (Heller II); see

also N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 255 (2d Cir.

2015) (“Even accepting the most conservative estimates cited by the parties and by

amici, the . . . [LCMs] at issue are ‘in common use’ as that term was used in

Heller.”); 20 David B. Kopel, The History of Firearm Magazines and Magazine

Prohibitions, 78 ALB. L. REV. 849, 859 (2015) (“The most popular rifle in

American history is the AR-15 platform, a semiautomatic rifle with standard

magazines of twenty or thirty rounds.”).

It necessarily follows that the Second Amendment protects the conduct at

issue here: keeping and bearing semiautomatic firearms equipped with a

commonly used magazine. A firearm with an LCM is in the same category as a

firearm with a smaller capacity magazine because it is in common use for self-

defense or other lawful purposes.

20 While the superior court appeared to sustain the State’s hearsay objection to Gator’s evidence about the number of LCMs in circulation, the superior court also found that “the many cases related to LCMs cited by counsel and this Court’s case law review yields [the conclusion that LCMs] are extremely widespread in civilian hands.” 6 CP at 2111, 2137. As cited above, my review of the same case law produces the same conclusion.

19 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

C. The State’s arguments to the contrary flout precedent and logic

The State argues that even if LCMs are commonly possessed by law-abiding

Americans, they are not widely “used” for self-defense. This argument fails for

several reasons.

The first problem with the State’s argument is that as mentioned, the Second

Amendment does not exclusively protect the right to keep and bear arms in self-

defense. Heller, 554 U.S. at 599. It covers the right to keep and bear arms “in

common use” for other “lawful purposes” including hunting, target practice, and

the like. Id.

The second problem with the State’s argument is that its definition of the

word “use” defies common sense. The State acknowledges that “guns can be used

in self-defense without any shots being fired.” Appellant’s Br. at 32. The State

undermines this acknowledgment by going on to assert that LCMs are not

commonly “used” for self-defense because, it alleges, individuals are rarely forced

to fire more than 10 rounds in self-defense. Id. at 32, 52. The State contends that

the average number of shots that an individual fires in self-defense is 2.2. Id. at 31

(citing 5 CP at 1510 (expert report of Lucy P. Allen)).

Under the State’s argument, unless a user fires 10 or more rounds, she has

not “used” a firearm equipped with an LCM for self-defense. But as discussed

20 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

above, keeping and bearing a firearm for self-defense covers a lot more than

returning fire (even if the State’s 2.2 shots statistic were trustworthy, which is

debatable).21 It covers storing, training, teaching, practicing, and keeping a home

prepared. The State’s argument—that the average number of shots fired in self-

defense determines whether LCMs are in common “use” for self-defense—

contradicts Heller, which held that the Second Amendment protects arms that are

“typically possessed” for “lawful purposes.” 554 U.S. at 625 (emphasis added); see

also id. at 629 (“point[ing]” a gun at a burglar is one way that handguns can be

used in self-defense). And when describing the historical understanding of the right

to keep and bear arms, McDonald said “the right was also valued because the

possession of firearms was thought to be essential for self-defense.” 561 U.S. at

787 (plurality portion) (emphasis added); see also N.Y. State Rifle, 597 U.S. at 32

21 Even if the average number of shots fired were relevant to the determination of whether a firearm is in common use for self-defense, the study the State relies on has some significant shortcomings. First, it is not peer-reviewed research. Second, to determine “average number of shots fired in self-defense,” the report relies on a small sample of about 1,000 national news stories from the limited time period of 2011-2017. It is unclear why that time period was selected, as the report itself makes clear that more recent data about self-defense incidents is publicly available. 5 CP at 1510 nn.4, 5. Where a news story did not specify number of shots fired, the researcher “used the average for the most relevant incidents with known number of shots”; it is unclear what metric was used to determine “relevant incidents.” Id. at 1510 n.7. (The study also examines shooting-related police reports from Portland, Oregon between 2019-2022, but it apparently did not use that data to perform its “average shots fired in self-defense” calculation. Id. at 1521.)

21 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

(“[I]ndividuals often ‘keep’ firearms in their home, at the ready for self-defense.”

(emphasis added)). Similarly, in Caetano, the Court reversed, on Second

Amendment grounds, the petitioner’s conviction for violating a state law

forbidding possession of stun guns. 577 U.S. 411. The Caetano Court’s decision

did not depend on how frequently stun gun owners fire in a self-defense scenario—

no such statistic was even mentioned. Rather, as the concurrence explained, the

petitioner in Caetano had done no more than “display[]” her stun gun to ward off

an attacker. Id. at 413 (Alito, J., concurring); accord Or. Firearms Fed’n v. Kotek,

682 F. Supp. 3d 874, 921 (D. Or. 2023) (“[T]his Court agrees, that an individual

need not fire a gun to use it for self-defense.”).

The State continues that firearms equipped with LCMs “have virtually no

utility for self-defense” because they are capable of firing more than 10 rounds.

Appellant’s Br. at 30 (citing Duncan v. Bonta, 19 F.4th 1087, 1104-05 (9th Cir.

2021)). It even asserts that such a weapon is “disadvantageous for self-defense.”

Id. at 9 (emphasis omitted). It is hard to understand why having additional

ammunition at the ready would make it harder for a frightened victim to act in self-

defense.

But even if the State’s assertion were true, it is irrelevant. It amounts to an

argument that the State alone gets to select the arms that individuals can use for

22 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

self-defense and other lawful purposes. But the Second Amendment doesn’t

protect the right of the State to choose the best arm for self-defense; it protects the

right of the individual to make that choice. So despite what the State prefers, under

Heller’s “in common use” test, the popularity of an arm among the law-abiding

public actually determines whether that arm enjoys Second Amendment protection.

Cf. Appellant’s Br. at 35 (decrying the superior court’s application of the “in

common use” test as “a misguided popularity-contest approach”). As the Supreme

Court explained in McDonald, Heller held that the Second Amendment applies to

handguns “because they are ‘the most preferred firearm in the nation to “keep” and

use for protection of one’s home and family.’” 561 U.S. at 767-68 (quoting Heller,

554 U.S. at 628-29). Even the Heller dissent agreed that this was Heller’s

holding—as Justice Stevens acknowledged, “The [Heller] Court struck down the

District of Columbia’s handgun ban not because of the utility of handguns for

lawful self-defense, but rather because of their popularity for that purpose.”

McDonald, 561 U.S. at 890 n.33 (Stevens, J., dissenting).

The majority does not adopt the State’s argument that a gun equipped with

an LCM must actually be fired more than 10 times to be “used” for self-defense.

However, it rejects Gator’s evidence about the large number of LCMs that

Americans lawfully own as irrelevant to the question of whether such magazines

23 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

are in common use for self-defense. Majority at 12. It does not mention that

according to one survey cited by Gator’s, “approximately 48% of gun owners (39

million individuals) have owned magazines that hold more than 10 rounds, and

71% of such owners indicate that they have owned such magazines for defensive

purposes (Home Defense or Defense Outside the Home).” William English, 2021

National Firearms Survey: Analysis of Magazine Ownership and Use, abstract

(Georgetown McDonough Sch. of Bus., Research Paper No. 4444288, 2023);

Resp’ts’ Br. at 56. The majority does not explain what kind of evidence it thinks

would suffice to show that an arm is in common use for self-defense. (And again,

like the State, the majority erroneously states that self-defense is the only conduct

protected by the Second Amendment.) Given the indisputable fact that LCMs are

lawfully owned in the millions, it is more reasonable to conclude that they are in

common use for one of the many lawful purposes protected by the Second

Amendment—purposes including self-defense, training, hunting, and sports. Under

Heller, such widespread lawful possession of an arm supports the conclusion that

the arm is in common use for lawful purposes. See 554 U.S. at 629.

The State and majority’s approach is backward—instead of starting with the

presumption that arms-bearing conduct is protected, N.Y. State Rifle, 597 U.S. at

24, they seem to start with the presumption that the State can regulate anything

24 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

relating to arms at all and that the burden is on the challenger to show why the

State can’t do that. Under that logic, if the Second Amendment permits the State to

select the right magazine capacity for users, despite the fact that magazines of

greater capacity are “in common use” in the millions, the State would not have to

stop at a 10 round limit. It could adopt magazine capacity limits of 9, or 5, or even

2 rounds. 22 In fact, if the State can classify firearm components as unprotected

accessories, then the State could completely bar modern weapons and force the

people to use outdated, poor-performing, less accurate versions of those

components.

The Second Amendment does not allow that result. Controlling precedent

makes clear that the fundamental right protected by the Second Amendment is the

individual’s right to keep and bear arms of one’s choosing, including magazines, as

long as those arms are in common use for self-defense or other lawful purposes.

This precedent compels the conclusion that a regulation on firearm magazines that

22 Under the majority’s logic, the State could probably adopt a total ban on magazines. According to the majority, a magazine is not an integral component of a semiautomatic firearm because “a semiautomatic firearm is still capable of firing” without one—if only by loading manually and shooting one round at a time. Majority at 15. In the majority’s view, using a semiautomatic weapon as a single-shot weapon would still “fulfill[] the firearm’s purpose as a tool for realizing the core right of self-defense” and would “leav[e] the weapon fully functional for its intended purpose.” Id. As mentioned, this position shows a fundamental misunderstanding of both “semiautomatic” and “self-defense.”

25 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

are capable of holding over 10 rounds constitutes a regulation on common, lawful,

“arms-bearing conduct.” That means that the State must prove that ESSB 5078 has

a sufficiently similar historical analog to survive.

II. The State Fails To Identify a Historical Analog To Banning Magazines Capable of Holding over Ten Rounds

If a regulation covers conduct protected by the Second Amendment, then the

State bears the burden of showing that the regulation is “consistent with the

Nation’s historical tradition of firearm regulation.” N.Y. State Rifle, 597 U.S. at 24.

A historical analog need not be a “historical twin.” Id. at 30. To determine if a

historical law and a modern law are analogous, we must compare “how and why

the regulations burden a law-abiding citizen’s right to armed self-defense.” Id. at

29. If the “how” or the “why” are different, then the old law is not a historical

analog of the new restriction.

“‘Constitutional rights are enshrined with the scope they were understood to

have when the people adopted them.’” Id. at 34 (emphasis omitted) (quoting

Heller, 554 U.S. at 634-35). Thus, the laws that are most relevant for deciding

whether ESSB 5078 has an historical analog are the laws from around the time that

the Second and Fourteenth Amendments were ratified. Id. at 34-35. Laws that long

26 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

pre- or postdate those time periods are not particularly relevant to this historical

analog inquiry. Id.

The State fails to meet its burden of identifying such a relevant historical

analog. This is because there is no relevant historical analog for regulating the

ammunition capacity of firearms. As Gator’s points out, the only founding-era laws

addressing the quantity of ammunition the people could possess were laws

requiring minimum quantities of ammunition that “able-bodied men” had to own

for use in militia service. Resp’ts’ Br. at 64 (citing Miller, 307 U.S. 179-82).

And undisputed evidence shows that the first laws restricting magazine

capacity were enacted in the Prohibition era—about 150 years after the founding

period. Appellant’s Br. at 67-68; Resp’ts’ Br. at 74; Kopel, supra, at 864; accord

Heller II, 670 F.3d at 1260 (“We are not aware of evidence that prohibitions on

either semi-automatic rifles or large-capacity magazines are longstanding and

thereby deserving of a presumption of validity.”).

The State instead falls back to the argument that ESSB 5078 fits within “a

well-established tradition of regulating dangerous weapons when their proliferation

leads to widespread societal problems.” Appellant’s Br. at 59. It cites various laws

regulating trap guns and bludgeoning instruments dating from the time of the

nation’s founding and laws banning Bowie knives and concealed carry of pistols

27 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

beginning in the 1830s. It also cites the Prohibition-era laws regulating

semiautomatic and automatic firearms. The State argues that these laws are

historical analogs for ESSB 5078 because legislatures justified them for the same

reason: limiting dangerous weapons.

To be sure, the State does not have to find an identical historical law to

prove that the current law is consistent with the nation’s history of firearms

regulation. N.Y. State Rifle, 597 U.S. at 24; Rahimi, 602 U.S. at 691-92. But most

of the laws cited by the State did not regulate arms possession the way ESSB 5078

does—by outlawing acquisition of a particular weapon in common use. Thus, such

laws lack a shared “how” with ESSB 5078.

For example, the State cites founding-era laws that barred people from

setting trap guns. But those laws regulated one particular use of a gun—they did

not ban the gun itself. See 5 CP at 1609-10 (trap guns were created “by rigging the

firearm to be fired with a string or wire which then discharged when tripped”

(expert report of Robert J. Spitzer, PhD)). The State cites pistol regulations from

the mid- to late 1800s. But most of those regulations imposed a tax or banned

concealed carry—they did not ban acquisition or possession. Appellant’s Br. at 66.

And the State cites laws relating to Bowie knives. But most of those laws created

carrying restrictions or taxes, too. Id. at 63.

28 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

The State cites only two state laws that “entirely banned the sale or

possession” of an arm, and that arm was the Bowie knife. Id. But N.Y. State Rifle

“doubt[ed] that three…regulations could suffice to show a tradition” of arms

regulation. 597 U.S. at 46. So two probably can’t, either.

And as for the State’s citations to Prohibition-era regulations of automatic

and semiautomatic weapons, those regulations occurred far beyond the relevant

time period for N.Y. State Rifle’s historical inquiry.

The State essentially argues that we should pull back to the highest possible

level of generality about the specific historical limitations on keeping and bearing

firearms, and sums up those historical limitations as “society can ban dangerous

things.” There are several problems with using the abstract concept of “danger” to

justify limitations on people’s access to weapons for self-defense and other lawful

purposes: (1) all firearms are dangerous, especially if they’re equipped with

magazines—that’s their purpose, (2) that level of generality allows legislatures to

limit the reach of the United States Constitution based on balancing society’s

interest against the individual’s right, and that violates the Heller-N.Y. State Rifle

directive against interest-balancing in the Second Amendment context, and (3) it is

the process that repressive governments have historically used to suppress dissent.

See supra n.8. Indeed, the Heller Court identified the founders’ fear of such

29 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

repression as one of the reasons for the adoption of the Second Amendment. 554

U.S. at 594.

In sum, magazines, including LCMs, are “bearable arms” in common use, so

they are presumptively protected by the Second Amendment. And in this case, the

State fails to show that ESSB 5078’s restriction on magazine capacity comports

with our nation’s historical tradition of firearm restriction. I would therefore affirm

the superior court’s decision holding that ESSB 5078 violates the Second

Amendment.

III. The State Constitution Was Always Considered More Protective of the Individual Right To Bear Arms Than the Federal Constitution; Jorgensen Replaced That Historical Understanding with Judicial Interest-Balancing; Under Jorgensen’s Interest Balancing Test, the Challenged Law Probably Survives; But Jorgensen Erred in Overruling Prior Case Law on This Topic

Article I, section 24 of the Washington Constitution provides:

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.

The firearm rights protected by article I, section 24 are “fundamental.” State

v. Sieyes, 168 Wn.2d 276, 287, 225 P.3d 995 (2010). The rights are “distinct from

those guaranteed by the United States Constitution,” State v. Jorgenson, 179

Wn.2d 145, 153, 312 P.3d 960 (2013), because article I, section 24’s language is

30 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

“facially broader than the Second Amendment” in several ways. State v. Rupe, 101

Wn.2d 664, 706, 683 P.2d 571 (1984). First, article I, section 24 specifies that the

right to bear arms is an individual right. Second, article I, section 24 explicitly

protects the right to bear arms for two specific purposes: self-defense and defense

of the state. “We are not at liberty to disregard this text” because the provisions of

our constitution “‘are mandatory, unless by express words they are declared to be

otherwise.’” Sieyes, 168 Wn.2d at 293 (quoting WASH. CONST. art. I, § 29).

The majority erroneously characterizes article I, section 24 as protecting

only the right to bear arms in self-defense. Majority at 12 (“LCMs also fall outside

either protection of the right to bear arms because the provisions protect only those

arms that are commonly used for self-defense . . . .”), 13 (holding that LCMs are

“not within the scope of the rights to bear arms under the Washington and United

States Constitutions” because there is no evidence that LCMs are “commonly used

for self-defense”). But that contradicts the plain text of article I, section 24—it

renders section 24’s words “or the state” meaningless. That’s not how we interpret

the constitution. State ex rel. Heavey v. Murphy, 138 Wn.2d 800, 811, 982 P.2d

611 (1999) (“[C]onstitutional provisions should be construed so that no portion is

rendered superfluous.”).

31 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

Despite Sieye’s recognition that article I, section 24 protects a fundamental

right, just a few years later this court held that a freestanding interest-balancing test

applies to determine whether a law violates that constitutional right. In Jorgenson,

we said that when analyzing a law implicating article I, section 24, courts must

apply a form of intermediate scrutiny and “‘balanc[e] the public benefit from the

regulation against the degree to which it frustrates the purpose of the constitutional

provision.’” 179 Wn.2d at 156 (alteration in original) (quoting City of Seattle v.

Montana, 129 Wn.2d 583, 594, 919 P.2d 1218 (1996), overruled in part on other

grounds by Chong Yim v. City of Seattle, 194 Wn.2d 682, 451 P.3d 694 (2019)).

Under Jorgenson’s weak intermediate scrutiny test, ESSB 5078 probably survives.

But in my view, Jorgenson erred on this point. “State interference with a

fundamental right is subject to strict scrutiny.” Amunrud v. Bd. of Appeals, 158

Wn.2d 208, 220, 143 P.3d 571 (2006) (citing In re Parentage of C.A.M.A., 154

Wn.2d 52, 57, 109 P.3d 405 (2005)), overruled in part on other grounds by Yim,

194 Wn.2d 682; Sieyes, 168 Wn.2d at 303 n.32 (J.M. Johnson, J., concurring and

dissenting in part) (strict scrutiny applies to the rights to marry and parent)

(citing State v. Warren, 165 Wn.2d 17, 34, 195 P.3d 940 (2008)); First United

Methodist Church v. Hearing Exam’r, 129 Wn.2d 238, 249, 916 P.2d 374

(1996) (same with respect to the free exercise of religion); In re Juveniles A, B, C,

32 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

D, E, 121 Wn.2d 80, 97-98, 847 P.2d 455 (1993) (same with respect to the right to

privacy)).

Just like the fundamental rights protected by the Bill of Rights, our state

constitution does “not recognize a hierarchy of constitutional rights; the fact that a

right is enumerated renders it fundamental and elevates it above all

nonfundamental interests.” Jorgenson, 179 Wn.2d at 171 (Wiggins, J., dissenting)

(citing Heller, 554 U.S. at 634; Washington v. Glucksberg, 521 U.S. 702, 719-20,

117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997)). The State identifies

no other fundamental right that is subject to a standard as lax as the standard

Jorgenson applies to article I, section 24. Had any party argued that we should

overrule Jorgenson as incorrect and harmful, I would agree. But no party did so,

and we remain bound by that decision.

Magazines, including magazines capable of holding over 10 rounds,

constitute Second Amendment “arms” as defined in Heller and N.Y. State Rifle.

They are also arms in common use for lawful purposes, including self-defense.

ESSB 5078 regulates the “arms-bearing conduct” of possessing and using such

arms; it therefore regulates conduct that is presumptively protected by the Second

Amendment. The State fails to meet its burden to show that this new law is

33 State v. Gator’s Customs Guns et al., No. 102940-3 (Gordon McCloud, J., dissenting)

consistent with our nation’s history of firearms regulations, as N.Y. State Rifle

requires. ESSB 5078 therefore violates the Second Amendment, as the trial court

held. Unlike the majority, I would affirm that trial court decision.