‘Not tools of self-defense’: Ferguson makes case for Washington’s new semiautomatic rifle ban

Courthouse sparring is ramping up in a case that could eventually decide whether Washington’s newly adopted ban on the sale of semiautomatic rifles is constitutional.

Gun rights advocates filed the lawsuit in federal district court in Tacoma on April 25, the same day Gov. Jay Inslee signed the legislation. On Monday, Attorney General Bob Ferguson registered his opposition to the challengers’ request for a preliminary injunction to block the law’s enforcement while the litigation unfolds.

Under the law, which went into effect immediately, the state barred the sale, distribution and importation of certain firearms defined as “assault weapons.” Legal owners already in possession of the guns are free to keep them and there is a provision allowing gun shops to sell remaining inventory to out-of-state buyers.

The new filing from the attorney general outlines his theory for why the firearm prohibitions should be upheld under the Second Amendment, following a landmark Supreme Court decision last year that narrowed the path for states to regulate guns.

Central to that high court ruling, in New York State Rifle & Pistol Association v. Bruen, is the concept that gun restrictions must be consistent with the nation’s historical tradition of firearm regulation in order for them to pass constitutional muster.

Ferguson argues that Washington’s law clears this bar, pointing to how U.S. authorities have a long history of regulating weapons, including clubs, knives and fully automatic rifles.

“Just like bazookas, machine guns, and grenade launchers, assault weapons are not covered by the Second Amendment because they are not tools of self-defense; rather, they are designed to injure and kill as many people as possible as quickly as possible,” his brief says.

“Moreover,” it adds, “Washington’s regulation of assault weapons fits comfortably within the long historical tradition of regulating dangerous and unusual weapons.”

Over the past decade, semiautomatic, “AR-style,” rifles have increasingly drawn scrutiny as killers have used them repeatedly in mass shootings, including at Connecticut’s Sandy Hook Elementary in 2012, where a gunman murdered 26 people, including 20 children, and in the shooting at an elementary school in Uvalde, Texas last year that left 19 children and two teachers dead.

Gun rights advocates argue the firearms restricted by Washington’s law don’t fall into a category that is susceptible to regulation, which includes “dangerous and unusual” weapons that are not “in common use.” Therefore, they contend, these guns cannot be banned.

They note there are an estimated 24 million AR-style rifles, or similar models, in circulation nationwide.

“The firearms at issue are in common use and so the Washington Ban is unconstitutional, full stop,” reads their request for a preliminary injunction, filed May 4.

Ferguson’s brief knocks what it describes as the “popularity-contest argument” the plaintiffs make about how widespread the guns are, saying it “leads to the absurd conclusion that a firearm’s constitutional status turns on whether the gun industry chooses to engage in mass campaigns to flood the market.”

Plaintiffs include three Washington residents who say they would buy the banned weapons if they could, a gun shop in Vancouver, Washington unable to sell the firearms, and two gun advocacy groups–the Second Amendment Foundation and the Firearms Policy Coalition.

The dispute is before U.S. District Court Judge Robert J. Bryan who was appointed to the bench in 1986.

Washington is one of 10 states to have adopted prohibitions on semiautomatic rifles, according to Everytown For Gun Safety, which pushes for tighter gun laws. The group notes that from 2009 to 2022, nine out of the 10 mass shooting incidents with the most casualties involved the use of at least one assault-style weapon.

Another challenge to Washington’s law is pending in U.S. District Court for the Eastern District of Washington and gun rights supporters also filed a case in Grant County Superior Court. The Grant County case was recently shifted to a Thurston County court.

Last week, the U.S. Supreme Court declined a request to step in and prevent the enforcement of an Illinois ban on the sale and distribution of AR-15s and other semiautomatic rifles. Those restrictions are now likely to stay in place while a lawsuit over them moves ahead in a Chicago federal appeals court.