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Judges Split on Oregon Measure 114 Rulings

The draconian Oregon Measure 114 has drawn no less than four lawsuits since its passage in November. Suits seeking to block Measure 114’s implementation were filed in federal district court and a state court, yielding two different outcomes. Final rulings have yet to be made, but here’s what we know so far. Two of these suits have not yet been heard.

Oregon Measure 114
Oregon’s controversial Measure 114 drew four separate lawsuits against its implementation. The 1st two now have initial rulings.

What is Oregon Measure 114?

We’ve covered Measure 114 and how it was passed elsewhere, but here’s a quick rundown of what it will do if allowed to stand:

  • Requires permits issued by local law enforcement to buy a firearm.
  • Requires photo ID, fingerprints, safety training, criminal background check, and fee payment to apply for a permit. Applicants must pay for the training themselves and the permit can cost up to $65.00.
  • Prohibits manufacturing, importing, purchasing, selling, possessing, using, or transferring ammunition magazines capable of holding more than 10 rounds and makes violations a class A misdemeanor.

The ballot measure passed with 50.7% majority, with most of the state’s counties voting “no,” but the liberal-leaning metropolitan areas carrying the day. The law was scheduled to take effect on December 8, 2022, before being preempted by the state court ruling.

The Federal Lawsuit

The State of Oregon was sued in federal court by the Oregon Firearms Federation, three Oregon sheriffs, and two Oregon gun store owners. US District Judge Karin J. Immergut asked some alarming questions as the hearing proceeded. The 1st of those questions could be attributed to the judge wanting certain explanations entered into the court record, asking the plaintiffs’ lawyers to explain the evidence backing up their claim that magazines holding more than 10 rounds are commonly used for self-defense.

Another question, however, demonstrates a clear lack of understanding regarding the Second Amendment, its history, and its purpose. “You would agree,” asked Judge Immergut, “that law enforcement conceivably should have weapons that are different than a private citizen should have, wouldn’t you?” Plaintiff’s attorney John Kaempf replied, “No, I don’t see a historical tradition of that.”

Kaempf is obviously referring to the Supreme Court’s Bruen Decision, which stipulates that any gun laws must adhere to the traditions and history of the Second Amendment as they were understood when it was adopted in 1791. Before Bruen, judges often tried to balance a perceived good, such as a nebulous idea of “public safety” when weighing the constitutionality of gun laws. Bruen expressly forbids a two-tiered examination, meaning that such balancing is now unconstitutional.

Oregon gun store
Oregon gun stores can continue operating as before under the state judge’s ruling. For now. (Andrew Selsky/AP)

But Judge Immergut seems to be one of those judges who hasn’t yet received the memo. She asked if a magazine with a given number of rounds, more than 10, is used “in a way that perhaps wasn’t contemplated,’ such as by a mass murderer, could that magazine, and others like it, be considered dangerous and unusual.” With that question, the judge was clearly looking for a way to balance magazine capacity with the state’s definition of “public safety.”

Kaempf argued that most magazines carry more than 10 rounds and such magazines have been available since the 18th century. “Under Bruen, it’s a new day,” he said. “I have great respect for Your Honor,” Kaempf continued, “and what Bruen is telling you is it’s not up to you. We already had balancing. It happened in 1791 when we passed the Second Amendment. The balancing is over.”

The Federal Ruling

There was further testimony, but space prohibits a detailed account. The entire transcript can be found at courtlistener.com. In the end, Judge Immergut did indeed apply her own balancing, citing the state’s interest in “protecting public safety” and the plaintiff’s interest in “the continued exercise of their Second Amendment, Fifth Amendment, and Fourteenth Amendment rights…Because the rights articulated here are extremely compelling for both sides, this court finds that a balancing of the equities does not favor either party…The burden imposed by Measure 114 on the core Second Amendment right of self-defense is minimal.”

So, what does that mean? The judge allowed the magazine ban to stand. The onerous permitting process was pushed back by 30 days to allow a better implementation plan. In other words, the judge plans to let the whole thing stand, while claiming that it favors neither side and imposes only a “minimal” infringement on Oregonian’s Second Amendment rights. That’s some real mental and legal gymnastics, right there.

The State Lawsuit

Meanwhile, Gun Owners of America (GOA) filed another suit in Harney County, Oregon. This one challenged Measure 114 under the Oregon State Constitution. Harney County Circuit Judge Robert S. Raschio ruled just hours after Judge Immergut’s federal ruling.

Standard capacity pistol magazines
Judge Robert S. Raschio’s temporary restraining order against Measure 114 means Oregon gun owners can still purchase standard capacity magazines. Oregon has seen record sales of guns and magazines since Measure 114 passed. (Connor Radnovich/Oregon Capital Chronicle)

Judge Raschio blocked Measure 114’s implementation, writing that his temporary restraining order (TRO) will maintain the status quo until a further hearing can determine whether Measure 114 is legal under Article 1, Section 27 of the Oregon Constitution. Article 1, Section 27 reads, “The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil power.”

Raschio also expressed concerns other than constitutionality. “With implementation,” Raschio wrote, “there are serious harms to the public interest as well, which could include individuals being arrested and prosecuted for Class A misdemeanors under what could be found to be an unconstitutional statutory scheme. And that could happen if Measure 114 is allowed to go into effect without significant judicial scrutiny. And, certainly, no one would argue that individual liberty is not a cornerstone of our country. First the people, then the State.”

Judge Raschio’s (TRO) is separate from the federal ruling and is legally binding. Oregon Attorney general Ellen Rosenblum immediately appealed Raschio’s ruling to the Oregon Supreme Court, which refused to intervene. Rosenblum vowed to keep fighting to bring the state court system into line with the federal ruling.

Oregon Attorney General Ellen Rosenblum on Measure 114 being blocked
Oregon Attorney General Ellen Rosenblum isn’t happy with the state judge’s ruling. Despite her appeal, the Oregon Supreme Court declined to intervene.

Logistical Problems

Besides being unconstitutional, Measure 114 imposes serious financial and logistical problems on state and local agencies. Union County Sheriff Cody Bowen, a plaintiff on the federal suit, said he will have to remove two patrol deputies from the road and put them in a classroom to carry out the permitting scheme. Other sheriffs have made similar statements and the Oregon State Police has said that they are also unprepared. Measure 114 provided no funds for its implementation and the state has not allocated funds for that purpose.

A Haphazard Law

All this was, of course, predictable, and people like Sheriff Bowen did indeed raise concerns before the election. Measure 114 was not crafted by legislators who at least understand that such things must be paid for. Measure 114 is expected to cost $55 million in the 1st year, with ongoing costs of $50 million per year.

Union County, Oregon Sheriff Cody Bowen
Union County, Oregon Sheriff Cody Bowen says Measure 114 is not only unconstitutional, but it endangers public safety by forcing him to pull two deputies from the road to a classroom to implement the unfunded permitting scheme. (flipboard.com)

Instead, Measure 114 is the work of activists who raised millions of out-of-state dollars to push an ideological agenda. There was no effort made to pay for Measure 114’s infringements. Because activists have no power to provide funding for any public program, they simply ignored it. All their money went to propaganda efforts to pass the measure. It was left to the sheriffs to point out the lack of funding, which was smoothed over by more propaganda.

But that’s how activists operate. If the legislature can’t or won’t do what they want, they push for executive action from an executive who also has no power to allocate funding. Or they push their catchphrases on a public that is regrettably underinformed about how government programs operate.

If Measure 114 stands, everyone’s state and local taxes will rise because activists (barely) pushed through a poorly thought-out ballot measure without disclosing its full ramifications. After all, a $50 million per year bill won’t pay for itself. But never mind that. The “public safety” narrative doesn’t care about such things.

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