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Federal judge says Oregon gun measure can go forward; state judge says it cannot

FILE - In this Feb. 19, 2021, file photo, a man enters a gun shop in Salem, Ore.
Andrew Selsky
/
FILE - In this Feb. 19, 2021, file photo, a man enters a gun shop in Salem, Ore.

A federal judge has denied a petition to delay Measure 114. That means a ban on buying or selling magazines that hold more than 10 rounds of ammunition will go into effect this Thursday.

Hours after a federal judge ruled a ban on high capacity magazines in Oregon can take effect Thursday and put a 30-day hold on the permit requirement to purchase a firearm, a state circuit court judge blocked the law from going into effect in its entirety.

The new law would ban the manufacture, purchase or sale of high capacity magazines capable of holding more than 10 rounds of ammunition. It would also require people take a safety course and pass a background check to get a permit allowing them to purchase a firearm.

It would also close the so-called “Charleston Loophole,” a gap in federal law that allows firearms to be transferred to a person after three days if a background check is not complete. As of Thursday, according to the federal ruling, transfers cannot happen in Oregon until the background check is completed.

But Harney County circuit court judge Robert Raschio said if Measure 114 were implemented it would violate Oregonians’ state constitutional rights because they would be “unable to lawfully purchase a firearm or bear a magazine capable of holding more than 10 rounds of ammunition in the State of Oregon,” Roschio wrote.

“Deprivation of fundamental constitutional rights for any period constitutes irreparable harm,” he continued.

A spokesperson for the Oregon Department of Justice confirmed to OPB that the agency will file a mandamus petition asking the Oregon Supreme Court to review the case immediately.

In federal court, U.S. District Court Judge Karin Immergut said the plaintiffs suing to block the voter-approved law from taking effect did not present sufficient evidence to show they were entitled to “the extraordinary relief they seek.”

“Plaintiffs have failed to demonstrate that they will suffer immediate and irreparable harm if this Court does not block Measure 114 from taking effect on December 8, 2022,” Immergut wrote in her decision.

The gun rights group Oregon Firearms Federation, three sheriffs and two gun store owners sued the state claiming the new law violates the Second Amendment right to bear arms. The group was seeking to block it from taking effect Dec. 8.

“One second of 114 going into effect on Dec. 8 and we have, as a matter of law, irreparable injury,” the group’s attorney John Kaempf argued in court Dec. 2.

Immergut was unconvinced. In making her decision, she wrote the plaintiffs failed to prove magazines holding over 10 rounds are “arms” protected by the Second Amendment or that they are necessary for self defense. On the contrary, she wrote the evidence presented shows large capacity magazines are rarely used by civilians for self defense and often used by law enforcement and the military.

“The evidentiary record also shows that large-capacity magazines are disproportionately used in crimes involving mass shootings,” Immergut wrote.

The head of the Oregon Firearms Federation declined to comment.

Immergut also denied a temporary restraining order blocking the provision requiring a permit to purchase a firearm from taking effect. But she did grant a Sunday night request from the state to postpone the permit requirement until state agencies can fully implement the new system.

“In light of the difficulty the State has conceded in terms of implementation of the permitting provisions at this stage, implementation of those permitting provisions is stayed for thirty days,” Immergut wrote in her order.

Sheriffs administer the state’s concealed handgun license regime and have raised concerns about the new law since it first passed. Some have said they lack the manpower and resources to administer the new permit-to-purchase system. The Oregon State Sheriffs’ Association said the anticipated 300,000 permit applications would overwhelm local governments.

“OSSA estimated that it would cost approximately 50 million dollars the first year for local governments to implement and operate the permit agent scheme, which included personnel, supervision, equipment and software to successfully manage the system,” association executive director Jason Myers wrote in a statement submitted in support of a different Measure 114 lawsuit.

Union County Sheriff Cody Bowen said if the law had gone into effect on Dec. 8, there would have been immediate damages on Dec. 9 because people would not have been able to purchase a firearm.

“The 30-day stay that was put on the permits kind of covered the state’s butt, if you will,” Bowen told OPB. “It helps. It gives them time to accomplish the job they set out to do. What that looks like, I still don’t know.”

Bowen said he still doesn’t have any idea who can teach the gun safety courses, how to train his deputies so they can train the public or other firearms instructors, or if he can appoint people to train the instructors.

If instructors have to be taught by law enforcement officers, it will be an enormous strain on his department, he said.

“That’s going to take two of my patrol deputies off the street cause there’s no funding,” he said. “Nobody has proposed any funding to say, ‘Hey, Union County Sheriff’s Office, we’re going to give you an additional $200,000 a year to cover payroll…to help hire people to do this.”

Speaking to the law’s constitutionality and the request before her to block the law, Immergut said the Firearms Federation and other plaintiffs had failed to show the permit requirement violated their civil rights.

“Plaintiffs provide no evidence to support their claim that the permit-to-purchase provision would cause them immediate irreparable harm,” she wrote. “Plaintiffs do not allege that their permit applications would likely be rejected if they were to apply for such a permit…Nothing in the permit-to-purchase scheme would make it impossible for Plaintiffs to use their pre-existing firearms for self-defense, as it is not illegal to possess a firearm without a permit.”

A recent Supreme Court ruling changing the standards by which gun laws must be evaluated was frequently mentioned during the court proceedings. In New York State Rifle and Pistol Association v. Bruen, the court ruled any restrictions on firearm ownership and use must have a basis rooted in American tradition going back to the decades before and after the Second Amendment was ratified.

That ruling also said the Second Amendment is not a regulatory straightjacket and specifically allowed for “shall-issue” permitting requirements, meaning requirements that do not force an applicant to justify a need for a firearm.

“Measure 114′s permit-to-purchase scheme is a ‘shall-issue’ permit scheme based on objective standards and is therefore presumptively constitutional under the holding of Bruen,” Immergut wrote.

The Supreme Court also wrote in its Bruen decision that in considering cases “implicating unprecedented societal concerns or dramatic technological changes,” lower courts should take “a more nuanced approach” and “conduct . . . reasoning by analogy” to determine whether a modern firearm regulation would be “unimaginable at the founding.”

In her ruling, Immergut cited historical evidence presented by the state showing that while some versions of high capacity firearms existed as early as the 16th century, those rifles were “experimental, designed for military use, rare, defective, or some combination of these features.”

In its complaint, the Oregon Firearms Federation referenced the early 18th century “Puckle Gun,” considered by some to be the first machine gun.

But, the state countered in court filings, “there is no record of such a gun ever having been manufactured.”

Presented with evidence showing the number of mass shootings since high capacity magazines became more common and legal, Immergut concluded “defendants have proffered evidence that large-capacity magazines represent the kind of dramatic technological change envisioned by the Bruen Court.”

Immergut’s ruling also applies to a second lawsuit challenging the magazine ban. There are four federal lawsuits challenging Measure 114.

This story may be updated.

Copyright 2022 Oregon Public Broadcasting. To see more, visit Oregon Public Broadcasting.

Jonathan Levinson is a multimedia reporter and producer for Oregon Public Broadcasting. He’s the Audion Fellow covering Guns & America.