Washington Gov. Jay Inslee and Attorney General Bob Ferguson are demanding lawmakers sign off on a number of new gun control restrictions when the 2023 session kicks off in Olympia, including a ban on the sale and manufacture of so-called assault weapons and a measure to make it easier to sue gun makers and sellers when a gun is used in the commission of a crime. That’s bad enough as is, but the pair are also pushing for another new restriction on Washington State residents; a permit-to-purchase a firearm.
You don’t actually need to have a license to drive a car on your own property, nor do you need a fishing license before casting your line in a stock pond or private lake. But in order for you to keep a firearm in your own home, Inslee believes you should not only have to pass a background check when you purchase your gun, (Washington State has universal background checks, so supposedly every firearm transfer is already scrutinized by the government) but first receive a permission slip from the state or county before you can exercise your fundamental civil right to keep one.
The governor said he believes legislation to have a permit might be the “single most important” gun safety measure that legislators can pass next year, citing a 40% reduction in gun violence in Connecticut after similar legislation passed in 1995 in that state.
You can read the study abstract for yourself at the link above, but suffice it to say that it offers no proof that the state’s “gun violence” rate was reduced by 40% in the ten years after its permit-to-purchase law took effect. The study’s authors acknowledge that number is based on comparing the state’s homicide rate between 1995 and 2005 to what they “would have expected had the law not been implemented.”
How’s Connecticut’s permit-to-purchase law working out in the real world? Well, you can ask the residents of the state capitol of Hartford, where homicides are currently the highest they’ve been in decades. Somehow, despite all of Connecticut’s gun laws, violent criminals are still finding little difficult in getting a gun while avoiding the hoops and hurdles that law-abiding citizens must go through.
From a legal perspective, the constitutionality of Inslee’s proposal is also dubious at best. Even the pro-gun control website The Trace admitted as much shortly after the Supreme Court’s decision in Bruen, bemoaning the fact that permit-to-purchase laws are very much in doubt thanks to their similarity to the “may issue” concealed carry laws the Court declared invalid.
In its opinion, the court’s majority specified a 77-year span of history that lower courts should look to when determining the constitutionality of gun regulations: from 1791, when the Second Amendment was ratified, to 1868, when the 14th Amendment — which the Supreme Court has interpreted to apply the Bill of Rights to the states — was ratified.
During that period, permit-to-purchase laws do appear to have a historical analogue to today, but for only one group: Black Americans. In 1828, Florida passed a law requiring formerly enslaved people to obtain a license from a justice of the peace in order to use and carry a gun. Delaware followed three years later. In 1865, just as the Civil War drew to a close, Mississippi enacted a law requiring free Black people to obtain a license from “the board of police of his or her county” to keep “firearms of any kind, or any ammunition.” That same year in Louisiana, Black residents were required to seek approval from police and their employer if they wanted to own a gun.
“This is where the new methodology runs into trouble, because we have a history of racist gun laws,” said Adam Winkler, a professor at UCLA School of Law. “How do you even conceptualize those in a history-and-tradition [context]? On one hand, you’d say to ignore them, because they’re racist,” and thus unconstitutional.
The racial disparities that were blindingly obvious in the Jim Crow-era are still around today, even when the laws are couched in racially-neutral language. One recent study that looked at the permit-to-purchase system in Wake County, North Carolina found that black applicants were almost three times as likely to be denied compared to white applicants.
Of course, gun control activists largely ignore that inconvenient fact, and sometimes even federal judges do too; as in the case of U.S. District Judge Karen Immergut, who recently declined to block Oregon’s permit-to-purchase law on the grounds that the scheme was “shall issue” in nature and therefore constitutionally sound. That’s not really the case, however, given that the law allows the issuing authority to deny a permit if they claim to have “reasonable grounds to believe you have been or are reasonably likely to be a danger to yourself, or to the community at large, as a result of your mental or psychological state or as demonstrated by your past pattern of behavior involving unlawful violence or threats of unlawful violence.” That’s a loophole big enough to drive a semi-truck through, as even some progressives in the Oregon have pointed out.
We don’t know what the exact language of the proposed permit-to-purchase legislation will look like in Washington, but my guess is that it will closely resemble that of Measure 114. Despite Immergut’s ruling, the permit-to-purchase scheme in Oregon is still on hold thanks both to a circuit court judge who granted an injunction based on the likelihood that the measure violates the rights of Oregonians under the state constitution, and Washington State has its own language protecting the right to keep and bear arms in its own guiding document. Article 1, Section 24 states: “The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.”
That might not be explicit enough for the Ninth Circuit, but I suspect that there’s at least one circuit or county judge in Washington State who would agree that a permit-to-purchase would indeed impair the right of individual citizens to bear arms in self-defense; not only in public, but in their own private homes.
Of course it’s always better to defeat a bad bill than overturn a bad law in court, and based on the full court press that Inslee and Ferguson are currently engaged in, my guess is that they’re not yet assured that they have the necessary votes despite their Democratic majorities in both chambers. Washington State gun owners need to get and stay engaged with their own representatives and state senators starting now, because anti-gun politicians are going to hit the ground running once the 2023 session gets underway.