Last summer, a federal judge in Mississippi dismissed a case against a man charged with having a gun as a convicted felon, because the law prohibiting possession by a felon is from 1938, not 1791 or 1868, and the government didn't present a sufficient historical analogue.

But he expressed concern about the situation he found himself in.

"Judges are not historians," U.S. District Judge Carlton Reeves wrote. "Yet the standard articulated in Bruen expects us 'to play historian in the name of constitutional adjudication.'"

In the Cowlitz County case, the state, in defending its law, pointed to a litany of historical laws it said were analogous to the modern ban on high-capacity magazines.

But Bashor, a 2011 appointee of former Democratic Gov. Chris Gregoire, dismissed them all as either too old, too new or not relevant.

"Most of the laws provided are post-1868 and are not relevant to the analysis," Bashor wrote.

The state cites a 1771 New Jersey law that prohibited "trap guns," which could be fired by someone or something triggering a rope or wire.

Bashor knocks that analogy as it "predates the Declaration of Independence and the creation of the Second Amendment."

He writes that it was a "hunting regulation so its purpose was not firearms regulation." But Bashor links to the original law, which seems to regulate trap guns for reasons beyond hunting. The law begins: "Whereas a most dangerous Method of setting Guns has too much prevailed in this Province ..."

Fifteen states followed New Jersey's lead in regulating trap guns, but Bashor finds all those laws wanting because they weren't "near the founding."

Historical laws regulating gunpowder, which was necessary for firing guns in 1791, "were for the purpose of fire control, not firearms regulation," Bashor writes, and are not relevant.

The state cites numerous laws regulating Bowie knives, but Bashor dismisses those as regulating weapons, but not firearms.

"Reviewing courts," a U.S. district judge wrote in 2022 about interpreting Bruen, "must find the goldilocks of historical analogues: not too old, not too new, but just right."

And just as the ideal porridge temperature is in the eye of the beholder (or mouth of the taster), judges have looked at near-identical laws and at identical history and come to different conclusions.

A federal judge in Oregon looked at that state's ban on high-capacity magazines and, after a weeklong trial, found reasonable historical analogues to justify the new law.

U.S. District Judge Karin Immergut cited the New Jersey trap gun law approvingly. She cited 19th century Bowie knife laws and finds them "tailored to address the particular features of the weapons that made them most dangerous to public safety." She looks at gunpowder and finds that it "posed a threat to public safety at the time of the Second Amendment's ratification" and writes that states responded with regulations.

In Bruen, the Supreme Court wrote that "dramatic technological changes" or "unprecedented societal concerns" can give courts more nuance in interpreting modern gun laws.

But Bashor writes that high-capacity magazines are not new technology and that mass shootings do not represent unprecedented societal concerns.

Immergut, an appointee of former President Donald Trump, finds the opposite, writing that from 1776 to 1949 there was no example of a mass shooting resulting in double-digit fatalities (excluding events like race riots and labor riots). She writes that a handgun with a large-capacity magazine can be reloaded in about three seconds, while the typical muzzleloading musket available in 1791 could be reloaded and fired three times per minute.

Both state bans on high-capacity magazines are now on appeal. In Washington, the state is appealing to the state Supreme Court. A hearing on the Cowlitz County case is scheduled for Wednesday.

In Oregon, gun rights groups are appealing to a federal appellate court, while the state pursues an appeal of a state court ruling saying the law could not be enforced.

California's bans on high-capacity magazines and on AR-15-style rifles are both on appeal, after each was invalidated by the same federal judge.

"You've seen this storyline before and I think it's important not to be too alarmed that a single judge takes a different view," Pekelis said. "That's why we have appellate courts, to correct errors."

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