Editorial: Assault weapons ban can withstand legal challenge

By The Herald Editorial Board

There is no surprise in the announcement that less than 24 hours after Gov. Jay Inslee signed the state’s assault-weapons ban into law — along with two other firearms safety measures — that lawsuits were filed challenging the new law’s constitutionality.

House Bill 1240, sponsored by state Rep. Strom Peterson, D-Edmonds, bars the manufacture, sale and distribution of “assault weapons,” specifically 61 models of semiautomatic rifles and pistols, including the AR-15. The law does not outlaw possession of the listed weapons from those who already own them, and exceptions are made for law enforcement and the military.

Consider the AR-15. Modeled after the military’s M16, the AR-15 is now the best-selling rifle in the United States. A Washington Post story reports that about 16 million Americans — 1 in 20 — own at least one AR-15. The “gun of choice” for many mass killers, the AR-15 has been used in 10 of the 17 deadliest mass shootings in the U.S. since 2012.

Unlike more conventional firearms, the ammunition used in the AR-15 and other semiautomatic firearms fire bullets at such high velocity that the projectile doesn’t just pierce the body but deforms in the body and creates a shock wave that can blow apart much of the skull as it exits, demolish vital organs and cause unstoppable bleeding, a graphic and sobering online report from the Post shows.

Peterson has sponsored similar legislation, requested by state Attorney General Bob Ferguson, in previous years, counting on building support in the Legislature and growing alarm in the public at the now nearly daily rate of mass shootings across America that involved semi-automatic military-style firearms.

“Gun violence cuts short too many lives, leaves survivors with a lifetime of trauma and forces our kids to live every day with the fear of an active shooter,” he said, upon the Senate’s passage of the bill earlier this month.

That public safety still matters was affirmed by Legislature and the governor with passage of the law, but that argument is ignored by those who now seek to nullify the law, claiming it to be — as the NRA described in its suit — “blatantly unconstitutional.” At least two other suits have been filed — one by the Bellevue-based Second Amendment Foundation, another by the Silent Majority Foundation — challenging the new law, all expressing confidence in success, following the U.S. Supreme Court’s decision last June that overturned a New York state law regarding concealed carry firearms permits.

The Supreme Court’s decision in the Bruen case still raises concerns for the court majority’s questionable application of “history and tradition” in overruling the New York law, which had required demonstration of a special need for a concealed-carry permit; and in determining where — and how — in public firearms can be restricted. But even allowing for the court’s current conservative majority, a successful challenge of Washington state’s new law should not be seen as a sure shot.

Start with the law itself and the fact that Ferguson and his office have anticipated the challenges.

“We spent a lot of time carefully crafting the legislation, being mindful of the U.S. Supreme Court and recent rulings of the U.S. Supreme Court, and doing everything we could to craft a piece of legislation that we thought could best withstand the inevitable legal challenge,” he said after the bill’s signing on Tuesday.

Then consider the track record of other bans on the sale of assault-style weapons. Washington state joins nine other states and the District of Columbia in adopting an assault weapon ban. Of those, the bans adopted by California, New York, New Jersey, Connecticut and Massachusetts have been law for decades, and Maryland’s ban has been in place since 2013, reports The New York Times.

More recently, Illinois adopted a ban in January and, like Washington’s, it was quickly challenged. But Friday, a federal judge in Chicago declined to block enforcement of the Illinois law, ruling that gun control laws were consistent with the nation’s historical tradition of firearm regulation.

That the older laws that have barred the sales of assault-style weapons have yet to be successfully overturned raises questions regarding the lawsuits against more recently passed laws, such as those in Illinois and Washington; the lawsuits seem more focused on the fresh fundraising potential in decrying a recently adopted law than in overturning the laws themselves.

And, though some might question the “history and tradition” of a Supreme Court justice as recent as the late Antonin Scalia, few would contest his conservative credentials or his past defense of the Second Amendment. Yet, Scalia, author of the court’s 2008 decision in Heller, which upheld the right to possess firearms in the home, allowed that the Second Amendment right was not absolute:

“Like most rights, the right secured by the Second Amendment right is not unlimited. … [It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

Scalia’s opinion went further, outlining “presumptively lawful” restrictions to prohibit possession by dangerous people, forbiding possession in schools and government buildings and other sensitive places and allowing conditions on the commercial sale of firearms.

What the state’s new law achieves is a balance in recognizing there are firearms that citizens have a right to possess — for defense of home, family and self, for hunting, for target shooting — and those whose limited utility — literal overkill as a hunting weapon and overpowered and unnecessary for self-defense — cannot justify even broader distribution than those weapons already have accomplished.