Yesterday, a Harney County Circuit Court judge ruled that Measure 114 violates Oregon’s state constitution. The law, which voters passed last year to regulate firearms, has yet to go into effect because of multiple court challenges.
Measure 114 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.
Earlier this year, U.S. District Judge Karin Immergut ruled the law is legal under the U.S. Constitution. That decision has been appealed to the 9th U.S. Circuit Court of Appeals.
OPB reporter Jonathan Levinson joins us with details about the latest ruling and what it means for the future of Measure 114.
Note: This transcript was computer generated and edited by a volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Yesterday, a Harney County Circuit Court judge ruled that Measure 114 violates Oregon’s state constitution. Oregon voters approved the law last year to regulate firearms. Measure 114 would ban future purchases of magazines that can carry more than 10 rounds of ammunition. It would also require people to get a permit before they could buy a firearm; to get a permit applicants would have to complete a safety class and pass a federal background check. I’m saying “would” because multiple court challenges have prevented the law from going into effect.
Earlier this year, a federal judge ruled that Measure 114 does not violate the US Constitution, but that decision has been appealed to the US 9th Circuit Court of Appeals. OPB reporter Jonathan Levinson joins us to talk about all of this. Welcome back.
Jonathan Levinson: Thanks for having me.
Miller: A lot of this state trial that led to the ruling we just got yesterday, it focused on the history of firearms in Oregon around the time that Oregon was founded in 1859. Why?
Levinson: Yes, so much 1800′s-era firearms history. We heard testimony from a museum curator, a revolutionary war era historian, an anthropologist, and they were focusing on firearms in common use around 1859, the year the constitution was passed, because the state constitution protects those firearms or firearms that are a clear modern-day equivalent. So to determine if a firearm is protected today, the judge in the case, Robert Raschio, had to understand what existed in the 1800′s.
Miller: What kind of evidence did the two sides put forward?
Levinson: Well, because Measure 114 bans magazines holding over 10 rounds of ammunition, a lot of the testimony focused on whether or not repeating firearms - those firearms capable of firing multiple rounds without reloading - whether or not those were in common use in the 1850′s. And so for the plaintiffs, the two people who are challenging the law’s constitutionality, they called a woman named Ashley Hlebinsky. She’s a former curator at the Cody Firearms Museum in Wyoming. She testified that there were many firearms at the time capable of firing multiple rounds. And she said that there were models that existed that held over 10 rounds. But Oregon Department of Justice attorneys who are defending the measure later asked her how common those were in the US at the time and she conceded that they were actually very rare.
For their side, the DOJ attorneys relied on several historical experts. Brian DeLay from UC Berkeley, he’s a historian there, he said that these kinds of firearms were not only vanishingly rare at the time, but that the advent of repeating technology later in the 18th century was such a rupture he found it very difficult to imagine that anyone could have predicted the technology’s wide scale adoption.
Miller: How convincing did the judge find these arguments?
Levinson: Well, he found that the measure was unconstitutional. So there. He found Hlebinsky’s testimony convincing, which is maybe surprising since this summer, Hlebinsky also testified in the federal trial testing Measure 114′s legality under the US Constitution. And the judge in that case found that she lacked credibility. US District Judge Karin Immergut wrote in her ruling this summer that Hlebinsky not only lacked training as a historian, but that her personal ties to the firearms industry undermined her neutrality as an expert. Raschio simply disagreed with DeLay’s analysis and said that the framers were certain to have known about the technological advancements underway.
And he had some tense exchanges during the trial, in particular, he questioned the scientific basis for some of the conclusions reached by a Tufts University epidemiologist Doctor Michael Siegel. Siegel testified about his research showing how casualties dramatically increase when high capacity magazines are used, and Judge Raschio basically brushed aside his testimony. He wrote that the total number of people killed in mass shootings is “staggeringly low in comparison to the media’s sensationalized coverage of the events,” and Raschio said that Siegel’s testimony simply wasn’t scientific under Oregon’s evidence laws.
Miller: You know, a lot of the same ground was tread in the arguments in front of that federal judge Karin Immergut, that you just mentioned, over the summer. How was her reading of the same evidence different from Judge Raschios?
Levinson: First, the federal trial was pretty significant. This was the first full trial since the US. Supreme Court’s 2021 Bruen decision. That decision changed a lot about gun laws in the country. It said that public interest, such as enhancing public safety, can’t be a consideration when deciding a law’s constitutionality. And it also said that firearms regulations must be “consistent with this nation’s historical tradition of firearms regulation.” So current laws must have precedent from the 18th century, and Immergut’s 122-page ruling laid out that historical record in painstaking detail, unlike Raschio, who said that magazines are integral parts of a firearm and necessary for them to function.
Immergut actually said that in the 18th century, “magazine” referred to an ammunition depot and she said that the cartridge boxes which held individual rounds were actually called accoutrements and not considered arms. So today’s magazines are not protected, she said. She also agreed that there is a historical precedent for regulating weapons and historically those regulations were tailored to the specific features that made the weapons most dangerous, for example, high capacity magazines. Raschio, on the other hand, wrote that measure 114 burdens Oregonians who want to protect themselves, and he said the provisions will actually make Oregonians less safe.
Miller: It was striking that he also responded to some county sheriffs from Eastern Oregon who testified. He essentially talked about the enormous land areas in Eastern Oregon and the limits of law enforcement’s ability to respond quickly, really showing the rural-urban split in terms of approaches to gun laws. The federal case is currently appealed to the 9th Circuit, as I mentioned, is likely or could very well go to the US Supreme Court. Meanwhile, this state case is going to be appealed as well. What’s the next step for this case?
Levinson: Oregon Attorney General Ellen Rosenblum has already said that the state will appeal the decision. That means it is headed to the Oregon Court of Appeals.
Miller: And what about the time frame here? We now have these two different cases that are both going to be going to various levels of appellate courts. Do you have any sense of the timing?
Levinson: As we have seen, courts move very slowly. It’s probably gonna be a while. For now, all of Measure 114′s provisions are blocked from taking effect.
Miller: Jonathan, thanks very much.
Levinson: Thanks for having me. Dave.
Miller: Jonathan Levinson is an OPB reporter. He joined us to talk about the ruling yesterday from a judge in Harney County. He said that Measure 114 - that’s Oregon’s voter passed gun control law - violates the state constitution. It is going to be appealed along with the federal case that went in the other direction, which is already appealed.
