A federal judge Friday said she will decide early next week whether or not she would block a voter-approved gun law days before it is set to take effect.
“This is a very complicated area of law,” U.S. District Judge Karin J. Immergut said, explaining she wanted to review the two sides’ arguments and the cases they referenced before making her decision, particularly given a recent Supreme Court ruling dramatically changing the standards that must be applied to gun laws. “It’s a new landscape.”
In this March 1, 2018, file photo, a large capacity ammunition rotary magazine is displayed on a sales rack in New Castle, Pa. Oregon's Measure 114, if implemented, would ban the sale or transfer of magazines that hold more than 10 rounds of ammunition.
Keith Srakocic / AP
Immergut said issuing a temporary restraining order to block Oregon’s Measure 114 from going into effect as scheduled on Dec. 8 would be an extraordinary remedy. Though, that is exactly what the people who have brought the lawsuit want.
The law would require anyone purchasing a firearm to get a permit first and ban magazines holding more than 10 rounds.
The new provisions were narrowly approved by voters in the Nov. 8 election, carried largely by broad support in the state’s more liberal, populous counties. In some rural counties, voters opposed the measure by as much as a three to one margin.
The lawsuit, one of three filed seeking to block the law from taking effect, was brought by the gun rights group the Oregon Firearms Federation, gun store owners in Marion and Umatilla Counties and three sheriffs: Sherman County Sheriff Brad Lohrey, Union County Sheriff Cody Bowen and Malheur County Sheriff Brian Wolfe.
Since Measure 114 was first drafted, the legal landscape has changed significantly. A U.S. Supreme Court ruling this summer rewrote the methodology judges must use when considering gun laws. Now, laws must have a basis rooted in American tradition, specifically the years between 1791 when the Second Amendment was ratified and 1861 when the 14th Amendment was ratified.
“It is a new day,” attorney John Kaempf said, arguing on behalf of the Oregon Firearms Federation. He said decisions pre-Bruen ruling “are in the dustbin. Those don’t matter anymore than anyone would cite Roe vs Wade anymore in light of the Dobbs decision.”
Speaking after the hearing, Sheriff Bowen said high capacity magazines are the norm and enforcing the law would be a near impossibility.
“Every gun that you come across nowadays holds more than 10 rounds,” he said, echoing the argument lawyers made in court that most handguns and rifles in use today hold well over 10 rounds. “It’s common and it’s out there.”
Bowen said guns aren’t the danger, and instead said more needed to be done to address mental health.
“I’m optimistic,” he said. “I hope that the state and the plaintiffs can find some common ground and ultimately we can facilitate something that helps make the state safer.”
Lawyers for the state declined to comment.
In court filings ahead of Friday’s hearing, both the plaintiffs and the defendants — Oregon Gov. Kate Brown and State Attorney General Ellen Rosenblum — couched their arguments in 18th and 19th century tradition.
“[Measure] 114 is not consistent with the Nation’s historical tradition of sufficiently analogous regulations,” the complaint reads, arguing there are no similar regulations in American history that justify the new provisions. “That makes 114 unconstitutional.”
The Oregon Firearms Federation complaint goes on, listing the many firearms throughout history that have held more than 10 rounds.
“The Puckle Gun was a tripod mounted multi-barreled flintlock firearm that held 11 rounds, and is considered by many gunsmiths and historians to be the first ‘machine gun,’ the Oregon Firearms Federation writes. It was “patented in 1718 — 73 years before the Bill of Rights, and subsequently the Second Amendment, were ratified.”
In a response filed earlier in the week, the state said magazines holding more than ten rounds are not weapons and are not required to operate any firearm. They therefore are not covered by the Second Amendment.
“In 1791, ‘virtually all firearms were single-shot’ and ‘guns capable of firing more than a single round could best be described as exotic,’” the state’s response read, citing a submitted declaration by Fordham University American history professor Saul Cornell.
Addressing the same issue in court Friday, Brian Marshall, an attorney representing the state, said Thomas even wrote in his Bruen decision the court can consider unprecedented societal concerns or dramatic technological changes.
“There are going to be weapons cited to you saying well, there was a 12-round magazine in this firearm in the 18th century,” Marshall said. “Whether it was dangerous then or dangerous now is different because of technology.”
He said an 18th century firearm holding 12 rounds was far less dangerous because it took several seconds to fire each round.
Kaempf told Immergut that with the Supreme Court ruling, the decision is out of her hands.
“Bruen says constitutional guarantees are not guaranteed if they are subject to courts,” Kaempf said. “The Second Amendment extends to all instruments that constitute bearable arms, even those not in existence at the time of the founding.”
The Oregon Firearms Federation also argued the permitting process violated the Second, Fifth and Fourteenth amendments. Citing the Supreme Court’s Bruen decision this summer, they argued the law “prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.”
The state countered, however, pointing to explicit language in the Bruen decision allowing for pre-purchase requirements like background checks or safety courses.
In that ruling, Justice Clarence Thomas wrote that nothing in their analysis suggests “shall issue” licensing regimes are unconstitutional, referring to states that have requirements to exercise their Second Amendment rights but that those requirements aren’t subjective or based on someone’s ability to prove a need to own or carry a firearm.
“Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens,’” Thomas wrote.
Towards the end of the hearing, Marshall told the judge the state would be ready to issue permits on Dec. 8, prompting a skeptical audience to erupt in laughter.
Soon after the hearing ended, the Oregon State Police put out a statement reiterating that Measure 114 will become law on Dec. 8 and saying the application will be available for download on the state police website that day. The state’s background check system has experienced “unprecedented volumes of firearms transactions never seen before in the program’s 26-year history,” the statement said.
The number of background checks being processed has led to a longer than usual backlog and delayed firearms sales, a concern for stores and customers. OSP said people whose background checks aren’t completed by midnight on Dec. 7 will need a permit to complete their purchase.
To avoid being saddled with firearms they can’t transfer to purchasers, many dealers in the state have started releasing purchased firearms after the legally mandated three days regardless of whether or not the background check has been completed, a loophole provisions of Measure 114 are intended to close.
Immergut said she expected to rule on Monday or Tuesday as to whether to issue a temporary restraining order. Regardless of what she decides, a more involved hearing is still expected on the plaintiffs’ request for a preliminary injunction to block the law from being implemented until a final ruling on the law’s constitutionality.
This story may be updated.