Another Win for Gators Guns
A Brief on Our Amici
Silent Majority Foundation and Gator's Custom Guns are fortunate to receive the backing of notable nationwide organizations in defending the constitutional right to keep and bear arms. The amici (friends of the court) filed briefs which ably detail the historical and legal contours of the right, and are worth reading. These well-known organizations see the value of the work we are doing here at SMF and want to support our fight for freedom in the courts. Firearms Policy Coalition, Goldwater Institute, Gun Owners of America, National Rifle Association, National Shooting Sports Foundation, and Second Amendment Foundation all submitted briefs with additional legal argument concerning various aspects of the case.
Below are some highlights from the Amicus Brief’s filed for our case:
Firearms Policy Coalition: A magazine is, in fact, an integral part of the firearm to which it is equipped. And just as the First Amendment would not permit the government to ban the printing press used to print newspapers, the Second Amendment would be a dead letter if it protected "arms" but permitted the government to ban parts like triggers, barrels, or magazines. See Hanson v. District of Columbia, 120 F.4th 223, 232 (D.C. Cir. 2024). The fact that some firearms do not require a magazine (or a so-called large-capacity magazine) is irrelevant. A publisher in 1791 could have handwritten his pamphlets instead of printing them, but the mere existence of a less-efficient alternative does not mean that a printer was failing to exercise his First Amendment rights. Similar examples abound. Not every gun requires a barrel longer than two inches, but a law that outlawed every firearm except the derringer would surely infringe on the right to keep and bear arms. Indeed, Heller held as much when it said that the government could not prohibit the ownership of handguns even though it was undisputed that it allowed the ownership of rifles. Heller v. District of Columbia1, 554 U.S. 570, 631-33 (2008).
NRA: It is for the People, not the State, to decide which arms are protected by the Second Amendment. The State defends its ban by asserting that the prohibited magazines "have virtually no utility for self-defense," App. Br. p.30, and are even ‘disadvantageous for self-defense.’ id. at 9. But that determination is for the People to make, not the government. To limit self-defense to only those methods acceptable to the government is to effect an enormous transfer of authority from the citizens of this country to the government-a result directly contrary to our constitution and to our political tradition." Friedman v. City of Highland Park, Ill., 784 F.3d 406, 413 (7th Cir. 2015) (Manion, J., dissenting)2
"The enshrinement of constitutional rights necessarily takes certain policy choices off the table." Heller v. District of Columbia, 554 U.S. 570, 636 (2008).
GOA: In ruling that sawed-off shotguns were not protected by the Amendment, the Court states that ‘it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.’ U.S. v. Miller, 307 U.S. 174, 178 (1939)3. Thus, expressly because the weapon *did not* have military application, the Court held it was not protected. The Court noted that the Constitution as originally adopted allowed Congress to call out the People's "unorganized" militia to "suppress Insurrections and repel Invasions." Id.
Miller effectively destroys twin arguments the State proffers. First, it destroys the State's false dichotomy between "military" and "defensive" weapons. Further, it destroys the argument that "military" action is always "offensive" in nature. Indeed, suppressing insurrection is arguably defensive, and repelling invasions is defensive by definition.
Goldwater Institute: Article I, section 24 doesn't use the word "infringe." It uses "impair." Thus, not only are blatant violations, invasions, trespasses, etc., prohibited when it comes to the right of individual citizens to bear arms in self-defense or defense of the state, but so, too, are lesser restrictions: anything that would weaken, diminish, deteriorate, or make worse a citizens' ability to bear arms (i.e., any subtle, incremental deprivation) is also prohibited.
Appellant's arguments effectively write out the words "or the state" from the state constitution. But "[c]onstitutional provisions should be construed so that no portion is rendered superfluous." State ex rel. Heavey v. Murphy, 138 Wn.2d 800, 811 (1999).4
In State v. Sieyes5, this Court recognized that it was "not at liberty to disregard th[e] text" of Article I, Section 24, because "[t]he provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise," as provided in Article I, Section 29 (referred to here as the Mandatory Clause*). 168 Wn.2d 276, 293 (2010). The Mandatory Clause makes clear that the constitution is to be obeyed as written, not whittled away through construction. See Johns v. Wadsworth, 80 Wash. 352, 353 (1914).6 "Constitutions do not change with the varying tides of public opinion and desire[.]" State ex rel. Lemon v. Langlie, 45 Wn.2d 82, 110 (1954).7
NSSF: Heller dissenters protested that handguns "are specially linked to urban gun deaths and injuries" and "are the overwhelmingly favorite weapon of armed criminals." Heller v. District of Columbia, 554 U.S. 570, 682 (2008) (Breyer, J., dissenting). The majority did not dispute these points; it just found them irrelevant to whether handguns are constitutionally protected, because that question does not turn on whether arms are misused by criminals. It turns on whether law-abiding citizens commonly own and use them for lawful purposes.
This is the principal error of the Commissioner's opinion, which focused pervasively on the potential misuse of the arms Washington has banned by a small number of criminals, rather than their lawful use by millions of citizens. Comm.Op. p.20-21.
Commissioner's fear that if no stay was granted that Washingtonians would purchase "millions" of these magazines, Comm.Op.p.2-3 is "virtually a confession of error under Bruen.’
One thing is clear: the right to bear arms is not a second-class right subject to different rules and interpretation than other constitutional rights, and is subject to protection against governmental overreach. SMF and Gator's Guns is thankful to have these organizations standing with us as we continue to fight to preserve Washingtonians' constitutional rights.
Our next hearing for Gators Guns is January 14th, 2025. We will be sending out the link to watch that hearing to our Members as it gets closer.
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https://supreme.justia.com/cases/federal/us/554/570/
https://www.law.cornell.edu/supremecourt/text/15-133
https://www.law.cornell.edu/supremecourt/text/307/174
https://law.justia.com/cases/washington/supreme-court/1999/67692-5-1.html
https://casetext.com/case/state-v-sieyes
https://casetext.com/case/johns-v-wadsworth
https://law.justia.com/cases/washington/supreme-court/1954/32910-1.html
Good stuff.
I’m glad that someone has brought up the “or the state” part of Article 1, Section 24, since one cannot defend the state without “weapons of war.”
Also, I don’t have any type of legal education, but doesn’t the fact that the absence of a magazine effectively turns a repeating arm into a single-shot firearm effectively resolve the question of whether or not magazines are “arms?”