Southwest Washington gun store lawsuit renews questions over states’ power to restrict firearms

Wally Wentz had been taking a Sunday nap on his farm when his lawyers called. A Cowlitz County judge had ruled Washington state’s ban on high-capacity gun magazines was unconstitutional.

The 60-year-old hurtled into work. For months he had been locked in a legal fight with the state attorney general’s office after he was allegedly caught selling the illegal gun parts after they were banned in 2022.

He told his staff to put the word out. They put buckets of magazines on the storeroom floor. Then, shoppers arrived to scoop them up like socks on Black Friday.

“Half an hour later the doors were swinging open and people were lining up,” Wentz said. “My wife was handing out bags to people as they came in the door.”

But it was, as Wentz noted, just “88 minutes of mayhem” before the state Supreme Court quickly froze the local judge’s ruling.

Wentz and his store, Gator’s Custom Guns, are now front and center in the debate over how much power states can wield to restrict guns and gun accessories.

In recent years, states across the country have attempted to tamp down gun violence by placing restrictions on firearms and their sales. And, thanks to a recent U.S. Supreme Court ruling, most are facing the same question in lower courts: Did the Founding Fathers see this coming?

Wentz — with the help of Pasco-based advocacy group The Silent Majority Foundation — has raised this question in court rather than paying a fine levied against Gator’s Custom Guns by the office of Washington Attorney General Bob Ferguson. The next steps in the case will be decided Wednesday.

Firearm retailers like Gator’s argue limiting gun magazines and other recent gun restrictions overstep. Besides banning magazines that hold more than 10 rounds, Washington lawmakers recently prohibited people from carrying firearms in places like transit facilities, zoos and aquariums.

“It’s outlandishly against the grain of the state and federal constitutions when it was dreamt up,” Wentz said of the gun magazine restrictions. “If I didn’t think this was a winnable fight, I wouldn’t have pursued it.”

The federal ruling

On April 9, Cowlitz County Superior Court Judge Gary Bashor struck down the state’s law limiting gun magazines. He said the law defied the Second Amendment.

In a 55-page ruling, the judge alluded to the case New York State Rifle & Pistol Association v. Bruen. That case went before the U.S. Supreme Court in 2022 and ended with justices writing that gun regulations had to be “consistent with the Nation’s historical tradition of firearm regulation.”

For the lower courts, that meant examining what gun laws were in place circa 1791, when the Second Amendment was drafted. To Bashor, the state of Washington failed to point to any relevant laws to defend its magazine restrictions.

“This court finds there are no relevantly similar analogue laws related to hardware restrictions near 1791,” Bashor wrote.

This lens has forced deep historical dives by courtrooms across the nation. Robert Spitzer, an expert witness in numerous guns-related cases and a professor at the College of William & Mary in West Virginia, said the recent decision has introduced a lot of confusion.

“The Bruen standard is extremely vague,” he said. “It’s open to a wide degree of interpretation.”

Large and removable gun magazines, for example, existed mostly as experiments in the late 18th Century. They didn’t really enter the public market until after World War 1, Spitzer said. When 1920s-era gangsters began using Tommy guns, he said at least 30 states passed laws to limit their use.

“No such thing had circulated in society before the 1920s,” Spitzer said. “So when that did happen, most states moved to restrict them.”

A plain reading over the U.S. Supreme Court decision, Spitzer said, would seem to imply that the advent of the Tommy gun could be considered beyond the scope of the new standard.

“Some would say, ‘Well, look, the 1920s is not the 1800s so it doesn’t count,’” he said.

But Spitzer contended that courts would have to consider the Tommy gun as an example because it is the closest analog to the assault rifle restrictions that states are contemplating today.

“If you’re going to do history, you have to do history,” he said.

Where Gator’s Custom Guns case goes next

The Washington state Supreme Court intervened within two hours of Bashor’s decision. Attorney General Ferguson’s office had asked for a pause while they plan to file an appeal.

It’s not yet clear if the appeal will go before the state Supreme Court or Washington’s appeals court first.

A spokesperson with the Washington Attorney General’s Office told OPB that they plan to ask the state Supreme Court to take over. Pete Serrano, whose Silent Majority Foundation is representing Wentz in court, said he believed the high court would take it up.

In the meantime, Supreme Court Commissioner Michael Johnston will hold a hearing Wednesday to decide on the pause. If it continues, high-capacity magazine sales will remain halted in Washington.

To legal experts, the ban appears to have momentum on its side.

Ferguson, in his brief to the Supreme Court, also argued that the Washington law is similar to others across the United States that have passed judges’ scrutiny. Last year, for example, a gun retailer in Federal Way, Washington, made a similar case to Gator’s and failed in King County Superior Court.

Magazine restrictions also have survived legal challenges in a dozen states outside of Oregon and Washington. Several district court judges thwarted Illinois’ law until the Seventh Circuit Court of Appeals ruled the law constitutional.

“What’s just so surprising about the Cowlitz judge’s decision is there’s this very large body of recent, federal case law interpreting this federal constitutional provision,” said Zach Pekelis, of Seattle-based Pacifica Law Group.

Currently, the Ninth Circuit Court of Appeals is hearing a high-capacity magazine case out of California. That case is slated to be heard later this year.