A six-day trial over the constitutionality of recently approved Oregon gun laws ended Monday after lawyers for the state Department of Justice ended three days of tense testimony.
Witnesses for the state faced direct scrutiny from Harney County Circuit Court Judge Robert Raschio, who will decide if the voter-approved Measure 114 is legal under Oregon law.
The at-times combative inquiry from the judge highlighted the fraught debate over gun laws in Oregon and across the country.
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
Raschio became particularly direct as he asked Joe Paterno, a volunteer with the Measure 114 campaign, about legal principles in the ballot measure. He asked Paterno his thoughts on sections in the measure that allow someone to turn in their high-capacity magazine to avoid arrest. At one point, Raschio began raising hypothetical scenarios and insinuated Measure 114 might allow law enforcement to racially discriminate when enforcing it.
Oregon Assistant Attorney General Brian Marshall moved to strike the entire line of questioning, arguing the issues Rascho raised were not part of the plaintiff’s claims.
“(Paterno) was called by the defendants to talk about the reasonableness of the measure,” Raschio said. “The court has broad authority and broad inquiry into the constitutionality of the measure on its face. And those questions were raised about facial issues that exist with this particular law that are not race-neutral and can be applied to different individuals differently … And so you’re overruled and your move to strike is denied”
In closing arguments, Wilson said the law does not compel discriminatory enforcement or unlawful searches, arguing that just because a law might be enforced in a discriminatory way does not mean the law itself is discriminatory.
Expert testimony
Measure 114 would ban magazines holding more than 10 rounds and require a completed background check and a permit to purchase a firearm. The law was passed by a slim margin last November and Raschio blocked it from going into effect in December pending his decision in this trial. In July, a federal judge in Oregon found the laws were constitutional under the U.S. Constitution. That decision has been appealed to the Ninth Circuit Court of Appeals.
Last week, a federal judge in California ruled that the state’s high-capacity magazine ban was unconstitutional.
Raschio had other charged exchanges, indicating his skepticism of many of the experts who defended the law’s provisions.
Dr. Michael Siegel, an epidemiologist at Tufts University, faced intense scrutiny over his research into the effectiveness of various firearms laws. It is standard practice in epidemiology to treat gun violence similar to a disease.
Tony Aiello, the lawyer representing the two men suing to block Measure 114, pushed back on Siegel’s testimony, saying his review of existing research constituted hearsay, that his research isn’t scientific, and that Siegel isn’t qualified to testify about gun violence because gun violence isn’t a disease.
Siegel said injuries are the disease and gun violence is the cause, well within the scope of epidemiology.
Siegel testified that since 2001, firearm homicides in Oregon increased 310% and that when large capacity magazines are used in mass shootings, casualties more than double.
Raschio pushed back, at times saying Siegel’s conclusions were not scientific and chastising Department of Justice lawyers for failing to explain why Siegel’s research was reliable.
“What just happened there is not scientific evidence,” Raschio said. “It’s not my view, it’s what the law requires … and I’m not going to allow that to be testimony of an expert because it isn’t scientific evidence.”
Raschio refused to allow mention of any policies in other states that aren’t identical to those under Measure 114 and said that unless Siegel’s research could demonstrate decisively that high-capacity magazine bans resulted in fewer gun deaths, he would not consider it when making his ruling.
Much of the state’s defense of Measure 114′s guidelines focused on the historical presence and need for high-capacity firearms in self-defense. To that end, the state brought forward data on shootings in recent years in Portland. That data showed that just six of 2,632 shootings between 2019 and 2022 were defensive in nature, and none of those six shootings saw the people defending themselves fire more than 10 rounds.
Another key moment in the state’s defense hinged on whether commonly available 10-round magazines could be “readily” modified to hold additional rounds, which would be illegal under Measure 114.
To address that concern, the state called former Bureau of Alcohol, Tobacco, Firearms and Explosives special agent James Yurgealitis. He was presented with a series of 10-round magazines and testified that none could be altered to hold additional rounds without tools or parts.
That’s an important distinction, Special Assistant Attorney General Harry Wilson explained in his closing argument.
“A person must be able to promptly make it capable of holding more than 10 rounds at the time they are alleged to be unlawfully possessing it,” Wilson said. “It is not enough that a person might be able to obtain an extension at a store in the future. A person must actually have an extension in their personal possession.”
Historical connections
Lawyers for the state also pointed to a previous Appellate Court ruling finding that modern weapons such as assault rifles do not have constitutional protections in the state. The Oregon Constitution only protects firearms that were in common use at the time the state Constitution was passed in 1859, or guns that are a clear modern-day equivalent.
Southern Oregon University Anthropology professor Mark Tveskov testified about the history of firearms in Oregon. He said by excavating battlefields and homesteads, he was able to determine that during the years before Oregon became a state, the most common weapon in use by civilians were single-shot, smoothbore flintlocks. He said shotguns, Colt revolvers, and a multi-barrel handgun called the pepperbox were also used.
Tveskov said there is no evidence that ordinary Oregonians were aware of or possessed arms holding more than 10 rounds.
Bryan DeLay, a University of California, Berkeley history professor who has studied the arms trade in Revolutionary War Era America, said repeating firearms were extremely uncommon at the time. He also said firearms holding more than 10 rounds were “vanishingly uncommon.”
“Colonial British North America was one of the best-armed societies in the world in the 18th Century,” DeLay testified. “The most common firearm was a lightweight, smooth bore musket. This was the most commonly owned firearm in North America.”
Even in the 1860s and 70s when the Henry and Winchester repeating rifles caught on, production records show of the 74,000 rifles made between 1860 and 1871, 65,000 were exported to foreign militaries. That left only about 9,000 in the United States. At the same time, DeLay said the federal government and Confederate states had approximately 5 million firearms.
Asked if Americans in the 1850s could have predicted the advent of semi-automatic and automatic firearms, DeLay said it’s unlikely.
“Semiautomatic technology and automatic technology are such profound ruptures in the history of firearms technology, that I find it very difficult to believe that anybody — even someone very well informed — in the late 1850s could have predicted the emergence of smokeless powder, detachable cartridges, automatic reloading,” he said. “That seems hard for me to imagine.”
In closing arguments, plaintiffs’ attorney Aiello said Article I, Section 27 of the Oregon Constitution protects firearms used for self-defense and defense of the state. He said case law does not allow an absolute ban on certain firearms regardless of the public safety benefit.
“Plaintiffs have shown that the need which provided the original justification for Article I, Section 27 is just as crucial today as it was 165 years ago,” Aiello said.
In the state’s closing, Wilson said there is precedent for requiring a license to exercise constitutional rights, such as marriage licenses and permits to hold a rally. Wilson also said detachable magazines and automatic fire weapons were developed for military purposes.
“The fact that detachable magazines and automatic fire technology were eventually used for civilian purposes, cannot, according to the [Oregon] court of appeals, bootstrap these weapons into personal defense weapons so that they come within the constitutional protection,” he said.
Aiello told OPB his clients are “confident that the record before the Court justifies a victory for responsible Oregon gun owners.”
Oregon Attorney General Ellen Rosenblum said regardless of how Raschio rules, she expects the case over the state’s gun laws will be decided by future appeals. Raschio is expected to issue a ruling within 60 days.