More than half of the attorneys general in the United States are adding their support to a lawsuit challenging Washington State’s ban on “large capacity” magazines that can hold more than ten rounds, as well as the National Rifle Association, National Shooting Sports Foundation and the National Association for Gun Rights.
Four separate amicus briefs from the various organizations and individuals have been filed with the Supreme Court ahead of the justices’ consideration of Gator’s Custom Guns, Inc. v. State of Washington, which is on appeal from the Washington Supreme Court. Earlier this year a majority of state Supreme Court justices ruled in favor of the state’s ban on commonly-owned magazines that can hold more than ten rounds, holding that they’re not even arms protected by the text of the Second Amendment. As the plaintiffs pointed out in their cert petition, the court’s position would allow the state of Washington to ban detachable magazines altogether, rendering almost every semi-automatic handgun a single shot pistol at best.
While all four of the amicus briefs hit on the idea that magazines are, in fact, bearable “arms” protected by the Second Amendment and that SCOTUS should grant cert in order to put a circuit court split on the issue to rest (with a ruling favorable to the plaintiffs, of course), they each come with a different approach.
The National Shooting Sports Foundation’s amicus brief offers a solid overview of the problems with the Washington Supreme Court’s decision; magazines are arms, the Second Amendment doesn’t allow for bans on arms that are in common use, and the magazines banned by Washington law are unquestionably in common use, with tens of millions of them lawfully possessed for lawful purposes, including self-defense.
The attorneys general brief argues that “fundamentally, it is time for this Court to address the repeated defiance of this Court’s holdings, particularly in jurisdictions that have repeatedly infringed on citizens’ Second Amendment rights”. They note the many cases in the lower courts where judges have blatantly ignored what the Court has said or twisted the Heller and Bruen decisions in order to uphold various gun regulations, including the Washington Supreme Court.
The NRA’s amicus brief notes the circuit court split on the issue, but also addresses what it sees as another problem with how the Washington Supreme Court reached its conclusion. The brief argues that courts should consider the “common use” of a firearm as part of its historical analysis, not its analysis of the plain text of the amendment.
District of Columbia v. Heller’s plain text analysis expressly concluded that “[t]he Second Amendment extends, prima facie, to all instruments that constitute bearable arms.” This Court should intervene to clarify that firearm magazines—regardless of capacity—are bearable arms that are presumptively protected by the Second Amendment.
… As a matter of plain text, if any magazines are “arms” (and they are), then all magazines are “arms.” The Washington Supreme Court misunderstands this, as do the Ninth and Seventh Circuits. The Washington Supreme Court finds “problematic” “the trial court’s logic that magazines are arms, and thus large capacity magazines are necessarily also arms.” Gator’s CustomGuns, Inc., 4 Wash. 3d at 284.
Further, that court states, “the constitutional protection of some instruments in a category does not require the protection of all instruments belonging to the same category.” Id.Yet that is precisely the conclusion the plain text requires. Nothing in the plain text of the Second Amendment mentions the size of a magazine or the specific features of a firearm. The plain text provides categorical, presumptive protection for all bearable arms. Heller, 554 U.S. at 582 (“[t]he SecondAmendment extends, prima facie, to all instruments that constitute bearable arms.”); see also Snope v.Brown, 145 S. Ct. 1534, 1535 (2025) (Thomas, J.,dissenting from the denial of certiorari) (“AR-15s are clearly ‘Arms’ under the Second Amendment’s plaintext.”). Thus, whether a subset of a protected category—be it magazines of a certain capacity or certain types of firearms—may be regulated or prohibited is a question of history, not plain text.
And since there is no longstanding national tradition of limiting the capacity of a firearm, the magazine ban fails to pass constitutional muster. In order to get around that conundrum, the Washington Supreme Court and others have simply declared that magazines aren’t covered by the scope of the Second Aemndment, but as the NRA’s brief points out, that logic could be deployed to ban magazines of any size.
The National Association for Gun Rights amicus brief also hits on how the Washington Supreme Court reached its decision, caling it a “magic bullet theory”.
Washington Engrossed Substitute Senate Bill 5078 (the “Statute”) bans detachable firearm magazines with a capacity greater than ten rounds. The WashingtonSupreme Court acknowledged that the Second Amendment protects those items necessary to make the use of a firearm meaningful, and it also conceded that magazines are essential for semiautomatic firearms to operate.
But the lower court erred when it held that the plain text does not cover magazines with a capacity of eleven or more rounds.The court provided no principled standard for determining the dividing line between magazines that are covered by the text and those that are not. Indeed, the court’s opinion rests solely on its “magic bullet” theory—i.e., its subjective assessment of whether citizens truly need the extra rounds in the magazines banned by the state. This is clearly contrary to D.C. v. Heller, 554 U.S. 570, 634 (2008), where the Court wrote that “[a] constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.”
In addition to Gator’s Custom Guns, the Supreme Court will also debate granting cert to Duncan v. Bonta this fall. That’s the lawsuit dealing with California’s magazine ban. If the Court grants cert, the cases will most likely be consolidated, and we could have a decision by next spring. There might be a desire on the part of some justices to kick this can down the road as they’ve done with cases dealing with “assault weapon” bans, but there’s no reason for the Court to delay, even if there are other cases in the pipeline that address both gun and magazine bans. As all these amicus briefs make clear, the Washington Supreme Court got it wrong, other courts are ignoring SCOTUS’s Second Amendment guidance, and its long past time for the Supreme Court to step in and remind these courts what they actually said in Heller, McDonald, Caetano, and Bruen.
Editor’s Note: 2A groups and Republicans across the country are doing everything they can to protect our Second Amendment rights and right to self-defense.
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