The same Oregon judge who temporarily blocked Measure 114 from becoming law last week, heard arguments on Tuesday in Burns over whether the voter-approved measure should be put on hold for months – or longer – as a legal challenge brought by gun groups makes its way through the courts.
Less than an hour into the hearing, Harney County Circuit Court Judge Robert S. Raschio ruled that he would keep at least a portion of Measure 114 on hold until the state established a permitting system that would allow for the sale of firearms under the law’s new permitting system.
In this screen shot from a video feed, Harney County Circuit Court Judge Robert S. Raschio presides over arguments about Measure 114 during a hearing in Burns, Ore., on Dec. 13, 2022.
Video screen shot / Harney County Circuit Court
“I’m going to continue the temporary restraining order with regards to the permit to purchase because I am convinced that there’s irreparable harm to the constitutional right to bear arms under Article 1 Section 27 if I do not,” Raschio stated.
Raschio said his order would remain in effect until he received notice from the state that the new permitting system was up and running. Attorneys for the state already requested a hearing on Dec. 23 to discuss the scope of the order. The state would like the requirement that potential buyers pass a federal background check before purchasing a firearm to go into effect immediately. Currently, a firearm can be transferred three days after a background check is requested even if the check is incomplete.
Much of Tuesday’s hearing dealt with another provision of Measure 114 that restricts the purchase of magazines that carry more than 10 rounds of ammunition. Raschio didn’t rule on that issue. Instead, he took both sides’ arguments under advisement and said he would issue a decision no later than 5 p.m. Friday.
Lawyers for both sides called witnesses who spoke to the history of commercially available firearms in the United States, especially around the time Oregon’s state constitution was written and ratified by voters in 1857. The reason for the historical focus was to establish whether the writers of the constitution could have meant only to protect ownership of firearms that were common at the time. Though, lawyers for the gun advocates argued that the protections were intended to be broader and include any modern firearms that could help protect themselves or the state.
It was broadly agreed that multi-shot weapons were available in the 1850s and had been in existence for some time. At issue was whether such weapons were in “common use” and easy to find and purchase for anyone who wanted one.
The state argued that, with the exception of revolvers, they were not. The lawyers for the plaintiffs argued that modern firearms are a natural evolution of arms available at the time the state’s constitution was drafted.
Measure 114 passed last month with just 50.7% of the vote, with support sharply divided between voters in urban and rural parts of the state. The law, which had been scheduled to go into effect on Dec. 8, bans future purchases of magazines that can carry more than 10 rounds of ammunition. It also requires those wishing to buy a firearm to get a permit first. Permits will require applicants to complete a safety class and a federal background check.
Multiple gun rights groups as well as at least two county sheriffs filed a flurry of lawsuits against the measure in the weeks after it passed. At least four lawsuits have been filed in federal court, where the request to temporarily prevent it from becoming law was denied last week by U.S. District Court Judge Karin Immergut, a Trump appointee.
Meanwhile, on Dec. 2, Harney County residents Joseph Arnold and Cliff Asmussen quietly filed a lawsuit in one of the state court system’s most rural venues where just one judge – Raschio – oversees the work from two counties. Arnold and Asmussen argue Measure 114 violates the Oregon Constitution. On Dec. 6, just hours after Immergut ruled against the firearms groups in federal court and let most of the new regulations take effect as scheduled, Raschio ruled the other way in state court and agreed to pause the entire thing.
According to the lawsuits, there are no training programs available yet and neither the Oregon State Police nor local law enforcement agencies are prepared to issue permits.
“Until that occurs, BM114 operates to effectively eliminate the right to keep and bear arms within Oregon, as no permit can be acquired without training, and no firearm can be acquired without a permit,” the lawsuit filed in Harney County Circuit Court states
The Attorney General agreed with that assessment in a letter to Immergut, the federal judge, early last week asking to delay the permit requirement to give the government time to create a system for issuing them. In her ruling, Immergut agreed to postpone it by 30 days. That was before the decision temporarily blocking the whole law came down in state court and, at least for now, superseded the federal ruling.
All five lawsuits also argue that the ban on magazines capable of carrying 10 or more rounds of ammunition infringes on their Second Amendment right to bear arms. In the state suit, the focus is on the Oregon Constitution, written in 1857, which also protects the right to bear arms.
“Since the Oregon Constitution was ratified after the ratification of the Second Amendment [in 1791], it would make absolutely no sense for Oregonians to knowingly ratify a state provision that protected less than the Second Amendment and, therefore, would immediately become inoperative and ineffective,” according to the lawsuit filed in state court.
Arnold and Asmussen, the plaintiffs in the state court case, are members of Gun Owners of America, which is party to the lawsuit. The nonprofit “formed in 1976 to preserve and defend the Second Amendment rights of gun owners” boasts more than two million supporters, the group states in court documents.
The Oregon Department of Justice hired the Portland law firm, Markowitz Herbold, to assist the state in defending Measure 114.
“The Oregon Constitution, as definitively interpreted by the Oregon Supreme Court, protects only the right to ‘bear arms’ of the type that were commonly used for self-defense in 1857,” the Justice Department stated in its response. “As to those weapons, the State retains the authority to reasonably regulate them. Measure 114 easily passes constitutional scrutiny under either prong of that test.”