Oregon gun laws challenge in judge’s hands after gun advocates, state attorneys make cases
For the past week, firearms groups argued the state's new gun laws infringe on the protections granted under the Second Amendment. Attorneys for the state argued that high-capacity magazines are inextricably linked to the rise in mass shootings and can be regulated.
Jenna Longenecker’s mother was one of the two people murdered in 2012 during the shooting at the Clackamas Town Center.
Four years later, her father purchased a gun and months later shot and killed himself.
“My mom’s death was really hard for my dad,” Longenecker testified Thursday. “My parents were divorced at that time, but it was just really hard for my dad. It really kind of prompted this last spiral of depression that he went into that led to his suicide, ultimately.”
(If you or a loved one have thought about suicide, call 988 to connect to a national suicide helpline.)
Longenecker’s testimony came at the end of a federal trial in Portland about the state’s tighter, voter-passed gun laws. The new laws would restrict access to high capacity magazines and require a lengthy process to obtain a permit before purchasing a gun. Attorneys for the state argued that the new laws would reduce gun deaths because high-capacity magazines are inextricably linked to the rise in mass shootings.
“It doesn’t take a Ph.D. to know these mass shootings happen nowhere else in the world,” Zach Pekelis, an attorney representing the Oregon Alliance for Gun Safety, said during closing arguments. “The evidence in this trial has shown these are a distinctly American phenomenon” that have “exploded with regularity in the last two decades.”
For the past week, firearms groups have sought to permanently block Oregon’s new gun laws from going into effect, arguing they infringe on the protections granted under the Second Amendment.
During closing arguments Friday, Matthew Rowen, one of the attorneys representing the plaintiffs, argued Ballot Measure 114 — the voter initiative that created the gun laws under review — is unconstitutional because it infringes on a right equal to other constitutional protections.
“You don’t ask ‘is this Constitutional activity necessary?’” Rowen said during closing arguments. “To bear arms includes not only firing, but carrying a weapon outside the home, brandishing, all of those uses, short of firing, are lawful uses in aid of self defense.”
Ballot Measure 114 passed narrowly in November, with 50.6% of Oregon’s voters in support, though the tighter gun laws have been blocked pending numerous lawsuits filed in state and federal court. The measure bans the manufacture and sale of magazines that hold more than 10 rounds and requires anyone who wishes to obtain a firearm to get a permit first. Permits will require taking a safety course and completing a federal background check.
The case in Oregon is unique because it has created a factual record on a constitutional issue. U.S. District Court Judge Karin Immergut will base her decision on that evidence, which will remain a part of the case should there be an appeal. It’s also the first trial regarding large capacity magazine bans to happen after a recent decision from the U.S. Supreme Court widely seen as strengthening the protections of the Second Amendment.
This week’s case is also one of hundreds playing out across the country as the firearms industry and its supporters seek to weaken gun restrictions after the U.S. Supreme Court’s ruling in New York Rifle and Pistol Association v. Bruen. The court’s conservative majority found that today’s gun regulations must be analogous to laws that existed in 1791 when the constitution was ratified or 1868 when the 14th Amendment extended gun rights protections to the states. That’s set off a new demand for historians who understand arms and regulation of weapons during and after the nation’s founding.
The court’s conservative majority did away with requirements that balanced the interests of the public against the protections of the Second Amendment. Instead, the 6-3 majority ruled the text of the Second Amendment itself was enough to determine whether the law was constitutional and allowed for new regulations only if an “unprecedented societal concern” was found to exist.
Evidence this week has focused almost exclusively on whether the provision that would limit the future sale of high-capacity magazines is constitutional. The law’s challengers had planned for a case that questioned the constitutionality of the permitting part of the law, but Judge Immergut last week put off those arguments, saying no harm could be proved from laws that had never gone into effect.
The defense, a coalition made up primarily of the Oregon Department of Justice, which is an actual party in the case, and the nonprofit Oregon Alliance for Gun Safety, has spent much of the last week calling experts who have argued that the sale of high capacity magazines can be regulated because magazines are an accessory, not a “bearable arm.” Experts and historians also argued that high-capacity magazines are directly connected to the rise in mass shootings, which they argue constitutes “an unprecedented societal concern.” Experts for the defense at times presented striking data and testimony.
Experts for the state and the Alliance testified that large capacity magazines, defined as magazines that hold more than 10 rounds, have contributed to the prevalence and deadliness of mass shootings. Those experts testified that restrictions on large capacity magazines reduce both the number of mass shootings and the number of people killed when mass shootings occur.
They also testified that firearms that shoot more than one round without having to reload were rare at the time the Second Amendment was ratified 1791 and that the country has a long tradition of regulating deadly weapons that pose a threat to society. The historical arguments are important under the new legal standards established by Bruen.
Louis Klarevas, professor at Columbia University in New York and author of Rampage Nation, which explores the history of America’s mass shootings, testified that mass shootings are a growing problem. Since the Sept. 11, 2001, terrorist attacks, all of the deadliest acts of intentional criminal violence have been mass shootings. That includes the 2017 shooting in Las Vegas that killed 60 people and the 2016 shooting at Pulse Nightclub in Orlando in which 49 people were murdered.
The first mass shooting that left 10 or more people dead occurred in 1949.
“In other words, for 70% of its 247-year existence as a nation, the United States did not experience a mass shooting resulting in double-digit fatalities, making them a relatively modern phenomena in American history,” Klarevas states in court documents.
Klarevas testified that large capacity magazines are “force multipliers” that have made mass shootings more deadly. Since 1990, large capacity magazines were used in 78% of the 80 mass shootings, resulting in 713 deaths, Klarevas states in court documents. The average death toll for shootings that used large capacity magazines was 11.5 deaths, compared to 7.3 deaths for incidents that did not involve the use of a large capacity magazine, he testified.
The main purpose of restricting large capacity magazines is to dissuade potential mass shooters from attacking or to force them to use less-lethal weapons, Klarevas wrote in a report submitted to the court. Using a firearm that can shoot fewer rounds slows shooters down.
“Forcing active shooters to reload creates critical pauses in an attack,” according to Klarevas’ report. “These pauses provide opportunities for people in the line of fire to take life-saving measures, which in turn can help reduce casualties.”
He testified that states with large capacity magazine bans had a 58% decrease in high-fatality mass shootings and a 69% decrease in the rate of death.
Klarevas’ testimony was underscored by Dr. Michael Siegel, an epidemiologist and researcher at Tufts University in Boston.
“States with large capacity magazine bans are effective in reducing both the incidents and severity of public mass shootings,” he testified. “I believe it is a causal relationship based on my analysis.”
Siegel noted that there are few public policies he’s aware of that have such a dramatic effect.
As part of their case, the state and Alliance argued magazines are not protected by the Second Amendment because they’re not an arm, but rather an accessory.
“In the founding era, arms and accouterments referred to separate entities,” testified Dennis Baron, a linguistics expert from the University of Illinois Urbana-Champaign who has studied the Second Amendment.
In 2008, Baron and two colleagues had a brief cited in the landmark Supreme Court decision, District of Columbia v. Heller, which affirmed the individual right to bear arms. Baron and his colleagues concluded that “bear arms” was primarily used to refer to the military during the time of the country’s founding. That opinion was rejected by the court’s majority, something plaintiffs in the Measure 114 case stressed to the judge for her to consider as part of her analysis.
During their case, plaintiffs had Mark Hanish, a former professional shooter who has spent decades working as an executive at various firearms companies, testify that a magazine was indeed part of a firearm.
“The magazine is correctly considered an integral part of the firearm, not merely an accessory” Hanish stated in his report to the court.
During cross examination, Hanish, who owned a large gun store and distribution business in Arizona, acknowledged he sold magazines as accessories.
“Detachable magazines are accoutrement and not arms and therefore not protected by the Second Amendment,” Pekelis, one of the attorneys defending Measure 114, stated during closing arguments.
Attorneys for the state also introduced a series of historians who testified that states have a history of regulating deadly and threatening weapons of the day.
“How common were repeating firearms in the founding era?” Harry Wilson, one of the attorneys for the state, asked Brian DeLay, a history professor at the University of California Berkeley.
“Extremely uncommon, vanishingly rare, perhaps nonexistent,” DeLay testified. That wasn’t because gunmakers didn’t want to make them. Rather, it was beyond the technical capabilities, he testified.
“What social problems did repeating firearms cause at the time of the founding?” Wilson later asked.
“None,” DeLay testified.
DeLay noted there are a few historical references to repeating firearms. One, was an Italian-made “air gun” called a Girandoni that could fire several rounds after pressurizing an air canister. It’s noted in the journal of Lewis and Clark in 1803, he said. So novel was the gun, a group of settlers near St. Louis asked for a demonstration, DeLay stated. References in old newspapers note people willing to purchase tickets to see repeating firearms.
“So these were curiosities at festivals not used for self defense?” Wilson asked.
“That’s correct,” DeLay stated.
Brennan Rivas, a historian from Texas who testified for the state, explained how during the 18th and 19th centuries, cities and states combated a rise in violence with regulations.
“Americans have a long tradition of regulating weapons considered especially dangerous to the peace and safety of their communities,” Rivas stated in court records. “The weapons which 19th-century Americans focused on were… newly developed or newly popular weapons that reached American consumers and were associated with unnecessary violence. These weapons were large fighting knives and pocket-sized revolvers.”
Rivas added that public outcry at the diminishment of public safety due to these weapons was common and drove state governments and the U.S. Congress to regulate them.
In closing arguments, Rowen, one of the lawyers for the gun groups, argued that the rise in mass shootings since 1990 does not meet the bar set in Bruen to be considered an “unprecedented societal concern.” Whether that bar had been met was one of the questions Immergut had asked the parties in this week’s case to discuss.
“Mass shootings are a horrible fact of American life,” Rowen said during closing arguments Friday. “The awful phenomena of mass shootings is just not the type of unprecedented societal concerns the Supreme Court had in mind.”
Pekelis, an attorney for the state, agreed that mass shootings had become “an ugly fact of American life” but during his closing argument appeared appalled by the idea that the nation’s founders could have intended for such tragedies to have become so common.
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