WASHINGTON

WARNING: The Washington State “aw ban” of 2023 is new and is currently being challenged in the court system. More clarity will come from these challenges over time. Both best practices and historical precedent have prioritized exclusionary clauses/definitions over inclusionary clauses/definitions. Still, nothing herein should be considered legal advice. We are recounting traditional “best practices” and precedent in both the writing and interpretation of legislative language within the state in question. Future challenges or conflicts between inclusionary and exclusionary clauses may be resolved case-by-case, breaking with both best practices and precedent.

NOTICE: A KALI KEY EQUIPPED FIREARM FUNCTIONS AS A MANUALLY-OPERATED (BOLT-ACTION) FIREARM. IT CANNOT FUNCTION IN ANY OTHER WAY EXCEPT AS MANUALLY-OPERATED. THERE IS NO WAY TO “CHEAT” WITH THE KALI KEY. WE INTEND FOR THE KALI KEY TO BE PERMANENTLY INSTALLED ONTO YOUR FIREARM’S BCG USING A PERMANENT THREADLOCKER AND FOR IT NOT TO BE REMOVED FROM YOUR FIREARM.

ANALYSIS FROM AN IN-STATE EXPERT ATTORNEY HAS DEEMED THAT THE KALI KEY COMPLIES WITH THE EXEMPTIONS CONTAINED WITHIN THE WASHINGTON STATE “ASSAULT WEAPON” BAN.  HOWEVER, WE DO NOT YET HAVE A DETAILED ANALYSIS TO PUBLISH.  IT IS BEING SAUGHT FOR PUBLICTION. THE INFORMATION CONTAINED BELOW COMES FROM THE TEXT OF THE LAW AND BEST LEGAL PRACTICES AND PRECEDENT.  IT IS NOT PART OF THE LEGAL OPINION THAT HAS DEEMED THE KALI KEY IS A VIABLE SOLUTION.

WASHINGTON STATE “AW” DEFINITIONS 

Washington State’s “assault weapon” ban (SB5265 / HB1240) has passed into law. In its definitions, the law states that an “assault weapon” must be a semiautomatic rifle. Furthermore, the law explicitly EXCLUDES ANY FIREARM that is operated by bolt action from the ban. The law details these exclusions in TWO separate yet distinct instances:

1. The first exclusionary clause (Sec.2.2.c page 6) states:  “ ’Assault Weapon’ does not include any firearm that has been made permanently inoperable, or any firearm that is manually operated by bolt, pump, lever, or slide action.”
2. The second exclusionary clause (Sec.2.38.b page 11) states:  “ ’Semiautomatic assault rifle’ does not include antique firearms, any firearm that has been made permanently inoperable, or any firearm that is manually operated by bolt, pump, lever, or slide action.

NOTE:  The law expressly excludes ANY FIREARM that is operated manually from the definition of an “assault weapon.”

BEST PRACTICES AND PRECEDENT:

Of interest to anyone reading HB1240 is whether exclusionary definitions take precedence over inclusionary ones. Specifically, does the clause that states what is excluded from the definition of an “assault weapon” (i.e., a bolt-action firearm) supersede the clause that includes a list of items being defined as “assault weapons.”

In state legislation, the phrase “does not include” is used to clarify the scope of a definition and indicates that certain things or situations are explicitly excluded from the definition(s) being provided elsewhere in the legislation (including lists), even if said things might seem to fit the general description of the term being defined.

By using the phrase “does not include,” legislators create more precise definitions that explicitly define specific exceptions or exclusions. The exclusionary language “does not include” helps to ensure that the law is clear and unambiguous, and the law applies only to the situation or objects that are intended to be covered and excludes objects or situations from lists or terms otherwise included elsewhere in the law.

In Washington State, in general legal drafting best practices, an exclusionary clause is usually given precedence over an inclusionary clause.

This principle is based on the idea that exclusionary definitions provide a clearer and more specific understanding of the scope of the law. In other words, if a definition explicitly excludes something, then that exclusion is more specific than an inclusion of something. Therefore, if there is a conflict between an inclusionary definition and an exclusionary definition, the exclusionary definition will usually take precedence.

A simplistic example is if a law defines “vehicle” to mean “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway,” but explicitly excludes bicycles from the definition, then the exclusionary definition would take precedence over any later inclusionary definition. If the law later includes bicycles within  he definition of “vehicle,” there would be a conflict between the inclusionary and exclusionary clauses. In this case, the exclusionary clause would take precedence, and bicycles would not be considered vehicles for the purposes of that law.

Washington State’s HB1240 does NOT state: [“Except for all firearms listed in section 2.(2).(a).(i), an “assault weapon” does not include…”] Instead, HB1240 in TWO separate and distinct sections of the bill explicitly and precisely blanketly states:

1. “ ’Assault Weapon’ does not include any firearm that has been made permanently inoperable, or any firearm that is manually operated by bolt, pump, lever, or slide action.” (Sec.2.2.c page 6)
2. “ ’Semiautomatic assault rifle’ does not include antique firearms, any firearm that has been made permanently inoperable, or any firearm that is manually operated by bolt, pump, lever, or slide action.” (Sec.2.38.b page 11)

In drafting their exclusions, legislators did not restrict or limit what manually operated firearms they were excluding from the definition of an “assault weapon” by qualifying that the exclusion(s) does not exempt any firearms they previously listed by name. Instead, they drafted the exclusionary clause(s) explicitly and without qualifications to exempt anything manually operated, expressly omitting any mention of any previous list of banned “assault weapons” from this exemption(s). They used the language “does not include” without any other qualifiers.

Furthermore, the Washington legislature explicitly used the very specific language of excluding “any firearm” that is manually operated by bolt, etc., and reiterated said exclusions twice in the legislation.

Lastly, Washington State has a Legislative Manual that lays out rules that need to be followed for drafting legislation. It states that language should be clear, concise, and unambiguous, and that, when drafting inclusionary and exclusionary clauses, lawmakers should:

1. Use specific and precise language: Use language that is specific and precise to define the terms and concepts used in the legislation.
2. Use plain language: Avoid using legal jargon and complex terminology that may be difficult for the general public to understand. Use plain language that is easy to understand.
3. Avoid over-inclusive or under-inclusive definitions: Inclusionary and exclusionary clauses should be carefully crafted to avoid being either too broad or too narrow in scope.
4. Avoid negative formulations: Use positive formulations instead of negative formulations whenever possible to avoid confusion.
5. Be consistent: Be consistent in the use of defined terms throughout the legislation to avoid confusion.

Sources:
1. Washington State Legislature. (2021). Legislative Manual.
2. Washington State Legislature. (2021). RCW 1.12.070.
3. Washington State Legislature. (2021). RCW 1.08.015.
4. Washington State Legislature. (n.d.). Revised Code of Washington (RCW).
5. Black's Law Dictionary. (2019). (11th ed.). St. Paul, MN: Thomson Reuters.