When most people think about the right to bear arms in defense of self or others, usually the Second Amendment comes to mind. But in most states that right is doubly protected by analogous state constitutional provisions. In fact, most state constitutional protections for the right to keep and bear arms are broader than the Second Amendment because the state language is often stronger and more specific.
That’s the case in Washington State—but officials are still violating their own residents’ constitutional rights. Now the Goldwater Institute is asking the Washington Supreme Court to say: no more.
Working in partnership with Washington attorney Mark Lamb—a member of our American Freedom Network of pro bono lawyers—Goldwater filed an amicus brief last week in the case of State of Washington v. Gator’s Custom Guns, Inc., urging the Washington Supreme Court to give full meaning to its state constitutional provision that protects the right of individual citizens to keep and bear arms in self-defense or defense of the state. The case involves a state prohibition on so-called “large-capacity magazines” that hold more than 10 rounds, common firearm components that are used for a variety of lawful purposes.
Fortunately, Washington’s state constitution shields the right of individual citizens to bear arms for defensive purposes from such bans. It says that “[t]he right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired.” Compare that to the less specific language of the Second Amendment, which simply says that “the right of the people to keep and bear Arms, shall not be infringed.” Notice that the state provision specifies that it is an individual (not collective) right, that self-defense is specifically protected, and that citizens must also be able to bear arms “in defense of … the state.”
The words chosen by the framers of Washington’s constitution indicate that the clause is a great example of a state constitutional provision that more broadly protects individual rights than its federal analogue. For example, the word “impair” restricts arms regulation more than the word “infringe.” And including defense of the state in addition to self-defense clarifies that citizens must be allowed to defend others when necessary.
History also supports a broad interpretation of the right to bear arms in Washington. In 1889, when Washington became a state, people understood the meaning of the word “arms” to include ordinary weapons used by individual members of the militia or military. And due to an incident involving the use of armed detectives during labor strikes at mines in eastern Washington shortly before statehood, territorial Washingtonians knew that armed bodies of men posed a threat to citizens and the state.
What’s more, Washington is one of only six states that has a separate constitutional clause specifying that all its state constitutional provisions are “mandatory.” These “Mandatory Clauses” strengthen individual rights protections and limit the ability of legislatures—and courts—to whittle away at fundamental rights protections. One Washington Supreme Court justice once wrote that to ignore mandatory state constitutional provisions—even where he personally believed a different result was “of obvious public benefit”—would be “an act of judicial lawlessness.” The state’s high court has also explained that “[c]onstitutions do not change with the varying tides of public opinion and desire.”
And yet, Washington courts in the past have allowed what they call “reasonable regulations” on firearms to trump the state constitutional protections. We think that is irreconcilable with the history and meaning of Washington’s “bear arms” provision and the Mandatory Clause.
These issues matter beyond just Washington State. Other states continue to pass unconstitutional measures banning large-capacity magazines and other common weapon features. And states like Arizona and Oregon have remarkably similar state constitutional provisions to that of Washington, passed around the same time, so their meaning and interpretation likely overlap.
The Goldwater Institute will always advocate for the right to keep and bear arms in defense of self and others—especially as protected by state constitutions. We hope the Washington Supreme Court strikes down the state legislature’s unconstitutional ban on “large-capacity magazines” and breathes new life into these critical state constitutional provisions.
You can read our brief here.
Click here and here to read more about Goldwater’s efforts to protect the right to keep and bear arms. You can learn more about Goldwater’s work defending gun rights organizations here and here. And our fight to protect the rights of firearm-related businesses is highlighted here and here.
Parker Jackson is a Staff Attorney at the Goldwater Institute.
