Three days after Federal District Judge Roger Benitez ruled that California’s magazine ban was unconstitutional in Duncan v. Bonta, a Federal District Judge denied a preliminary injunction against Washington State’s identical ban.
The case, Brumback v. Ferguson, challenged Senate Bill 5078 (ESSB 5078), which banned the sale or transfer of standard compacity magazines holding more than ten rounds. Washington-based gun store Gimme Guns is joining Michael Brumback in the case. Mr. Brumback tried to purchase a 30-round magazine from two-gun stores but was denied the item because of the 2022 law prohibiting the transfer of standard compacity magazines. He would eventually go to Gimme Guns for a final attempt to acquire the magazine. Even though the gun store did have the magazines in stock, the store could not complete the sale without breaking the newly signed law.
In July of 2022, Mr. Brumback teamed up with Gimme Guns. Together, he and the gun shop sued the state in the Eastern District of Washington federal court, attempting to get a preliminary injunction against the enforcement of the magazine ban.
A preliminary injunction maintains the status quo while litigation is ongoing for a case. A judge will issue an injunction if they believe that the plaintiff is likely to succeed on the merits of the case and will suffer irreparable harm.
On November 23, 2022, District Court Judge Mary Dimke heard arguments in the case. President Joe Biden appointed her to the bench in 2021. Many gun rights advocates behind the scenes were nervous when the judge was assigned. They believed it would be impossible for the plaintiffs to win because of the judge’s anti-gun stance. For the most part, President Biden-appointed judges have been terrible on gun rights issues. This judge made it clear that the plaintiffs would not have an easy path to victory.
“If the Court is to declare ESSB 5078 unconstitutional, it will not do so lightly. Injunctive relief is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief,’” the judge wrote.
The plaintiffs argue that banning magazines goes against the text, tradition, and history of the Second Amendment. Thanks to the landmark Supreme Court decision in the Bruen case, the courts no longer allow the states to use interest balancing in defending gun laws. The defendants argued that standard capacity magazines, which Washington State calls large capacity magazines, are dangerous and unusual and claimed under the Heller decision that the government can ban dangerous and unusual weapons.
The judge remained unconvinced that the Second Amendment covers magazines. Judge Dimke claimed neither side provided evidence that the Second Amendment protects the magazines. The judge reasoned that the burden of proof falls to the plaintiffs.
“At present, the evidence in the record is insufficient to establish that Plaintiffs are likely to prove that large capacity magazines fall within the Second Amendment right. The instant decision is primarily the result of Plaintiffs’ insufficient evidentiary showing and should not be read to preclude a contrary finding at a trial on the merits. It is pertinent to note, however, that no party, at this stage, has demonstrated a historical record adequately supporting their respective positions on the question of whether the Second Amendment covers large capacity magazines,” Judge Dimke wrote.
Judge Dimke also took issue with the plaintiffs’ evidence showing that magazines are “in common use today for self-defense.” The judge called the plaintiffs’ evidence “tenuous.” She said she would not consider “internet articles” as evidence, even though most journalism now solely exists online. The judge took the term “in common use” and added “for self-defense.” This wordsmithing isn’t the only “judicial jiu-jitsu” that the judge used. She also claimed that even if the plaintiff’s Constitutional rights are violated, it is not so clearly violated that the plaintiffs are entitled to relief.
“Plaintiffs’ Second Amendment right is not so clearly infringed during the pendency of this litigation to warrant the ‘extraordinary relief’ of a preliminary injunction,” the judge wrote.
Judge Dimke claimed since the plaintiffs were not likely to succeed on the merits of the case, she didn’t have to rule on any other factors needed for a preliminary injunction. However, the judge mentioned mass shootings, linked them directly to the magazine size, and claimed the law was in the public interest.
The judge didn’t rule out issuing injunctive relief if the evidence in the future warrants such a ruling. Even though Judge Dimke left the door open for a different decision in the future, the plaintiffs have a monumental task ahead of them.
Federal Judge Denies Preliminary Injunction Against the Washington Magazine Ban by AmmoLand Shooting Sports News on Scribd
About John Crump
John is a NRA instructor and a constitutional activist; he has written about firearms and interviewed people of all walks of life. Mr. Crump lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at www.crumpy.com.
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