Oregon gun law case will likely go to US Supreme Court

Last week, a federal judge found that Measure 114, the gun safety measure Oregon voters approved in 2022, is constitutional.

The ballot measure bans the manufacture, purchase or sale of magazines that can hold more than 10 rounds of ammunition. And it requires that people take a safety course and pass a background check to get a permit before they can purchase firearms.

But the new, tighter gun regulations ran into immediate legal challenges at the federal and state levels and have not gone into effect.

On Tuesday, OPB’s Dave Miller spoke to Norman Williams, a Willamette University constitutional law professor, to learn more about where the law stands right now. Williams explained the recent 122-page decision laying out why the state’s strict new gun laws are in keeping with the Constitution and talked about the law’s likely legal future.

What follows are highlights from the conversation. Questions and answers have been edited for length and clarity.

To listen to the full conversation, use the audio player at the top of this story.

Dave Miller: What did the two sides focus on in their arguments in federal court last month?

Norman Williams: Most of the focus was on whether the ban on large-capacity magazines was analogous to gun regulations in the past.

Miller: This is tied to a pretty new standard that stems from the U.S. Supreme Court’s 2022 ruling in the [New York State Rifle & Pistol Association v.] Bruen case. Can you explain what the “text, history and tradition” standard entails?

Williams: The U.S. Supreme Court basically reconfigured how it approaches Second Amendment gun rights. Previously, it had employed a balancing test basically asking whether the state’s interest in regulating firearms outweighed the burden on gun owners’ rights. But in the Bruen case, the court announced a historical approach that going forward burdens on gun owners’ rights were not justified unless the government could point to a law in 1791 — the time the Second Amendment was ratified — that was comparable to the law under review.

This has really focused the federal courts on looking at the history of firearms regulation to decide whether a modern regulation has some type of historical antecedent that existed in 1791.

Miller: In her decision, how did federal Judge Karin Immergut write about the history and tradition of firearm regulation as it relates to this relatively new technology of high-capacity magazines in her decision?

Williams: Judge Immergut conducted a weeklong trial where historians testified about the history of gun regulation in America. Now, in 1791 there weren’t bans on large-capacity magazines. The critical question is: Was that because there weren’t such magazines or because early Americans just weren’t concerned about gun violence at that time?

Immergut also looked to the regulations of gunpowder, of knives, of blunt objects and from that history wrote that Americans have regulated violent weapons. She concluded that the Second Amendment doesn’t ban the government from adopting new regulations that respond to new technologies like assault weapons or large-capacity magazines.

Miller: The judge also ruled in on the constitutionality of the permit to purchase requirement. What did she say?

Williams: She very much limited her consideration to whether — on its face — whether it was a violation of the Second Amendment. And she concluded based on some language in the Supreme Court’s Bruen decision that licensing requirements do not, on their face, violate the Second Amendment.

Judge Immergut reserved the question of whether the application of the permit to purchase requirement might be enforced in too burdensome a manner.

Miller: Gun rights groups have already appealed this decision to the Ninth Circuit Court of Appeals, but whatever happens there, is it safe to assume that decision is going to be sent to the U.S. Supreme Court?

Williams: I think so. The Ninth Circuit will probably take about a year to issue its decision. But Oregon is right now at the forefront of the litigation regarding the constitutionality of bans on large-capacity magazines. And this is an issue that I think the U.S. Supreme Court will ultimately be interested in and take up. That could be several years away.

Miller: Does the current court’s makeup or their recent rulings give you any indication of how they might approach Oregon’s law?

Williams: I think it’s likely that the ban on high-capacity magazines will be found by the U.S. Supreme Court to be unconstitutional. The current six-justice conservative majority which struck down New York’s concealed carry permit requirement in the Bruen case very much announced its intention to be very protective of gun owners’ rights and to be very rigorous in how it looks at the history of firearms regulation.

Miller: What about the permit to purchase provision when it comes to the Supreme Court?

Williams: I think Measure 114′s permit to purchase requirement is likely to be upheld as constitutional. Justice [Brett] Kavanaugh and Chief Justice [John] Roberts concurred in striking down the New York licensing requirement, but they expressly said that in general, licensing requirements are perfectly constitutional.

The U.S. Supreme Court typically takes cases with an eye to reversing them. About 70% of the cases that it takes, it reverses because it doesn’t see the point in kind of applauding a lower court that got it right. It sees its role as reversing lower courts that get it wrong.

I think the Rahimi decision [on the constitutionality of banning domestic abusers from owning firearms] will very much bear upon the permit to purchase requirement in Measure 114.

Miller: In addition to all of this, there is the state trial as well, which is looming in September. What are the issues there?

Williams: The litigation going on in Harney County, in a case called Arnold v. Kotek, focuses solely on the state constitutional protection for gun owners’ rights. The trial judge in Harney County has already concluded last December that he thinks it more likely than not that Measure 114 violates the Oregon Constitution’s protection of the right to bear arms. It’s highly unlikely that he’s going to reverse himself.

And for Measure 114 to ever go into effect, the state has to win in both the federal courts and the state courts. And gun owners only have to prevail in one of these cases for Measure 114 to be struck down.