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State trial begins to determine if new Oregon gun laws are constitutional


Oregon’s new voter-approved gun laws passed constitutional muster in a federal court this summer, but now they face another round of legal challenges — this time in state court.

Starting Monday, Harney County Circuit Court Judge Robert Raschio began presiding over a six-day trial to determine if the Oregon Constitution allows the state to ban high-capacity magazines and require a completed background check and permit to purchase a firearm.

Ballot Measure 114 passed by a narrow margin in November 2022, carried largely by voters in Multnomah, Washington and Hood River counties. The measure lost big in Eastern and Southern Oregon.

Since its passage, the new law has faced parallel legal challenges in federal and state courts. In December 2022, U.S. District Judge Karin Immergut allowed the law to go into effect until a federal trial. In July, she ruled the law is constitutional. At the same time, Raschio blocked the provisions entirely pending this week’s state trial.

The Harney County lawsuit was brought by two gun owners claiming the law infringes on their right to bear arms established under Article 1, Section 27 of the Oregon Constitution.

In their complaint, they allege the new voter-approved permitting system will infringe on their rights because certain required training is not yet in place and there are questions about whether the mandated background checks can be completed in a reasonable time. They also argue that magazines should be considered arms and therefore protected under the state constitution.

Experts say the state trial differs in key ways from the federal trial in June, during which lawyers on both sides were eager to establish a first-of-its-kind detailed historical record of late 18th century firearms and regulations. That record could be pivotal in challenges widely expected to reach the U.S. Supreme Court. In Oregon, the state constitution allows the state more leeway in regulating firearms compared to how the U.S. Supreme Court has interpreted the federal Constitution, particularly in recent rulings that dramatically expanded gun rights.

“The state constitution … just requires that there be a reasonable regulation to protect public safety,” said Jack Landau, a retired Oregon Supreme Court justice and a law professor at Willamette University and the University of Oregon. “And the U.S. Supreme Court said under the Second Amendment, that doesn’t cut it. It’s not a question of the legislature’s reasonable regulatory authority. You have to find … a distinctly applicable historical exception to your right to bear arms. And that’s a tougher test.”

Landau said judges are constantly doing a balancing test, evaluating whether a law’s objective is legitimate and asking whether the way in which a law accomplishes that objective is reasonable. He said in general, judges considering a law’s constitutionality will want to understand the magnitude of the risk of harm to the public that the law is trying to address.

“And then you’re going to talk about the extent to which the particular regulation that the legislature has adopted is adequately related to that purpose,” Landau said. “Does it reasonably target that problem without going too far in terms of impeding people’s constitutional rights?

To determine if Measure 114 is reasonable or not, a judge might want to understand how dangerous high capacity magazines are and how effective purchase permits are in curbing gun violence.

That evidence won’t be presented in state court this week. In a Sept. 7 pretrial hearing, Raschio said he would not allow testimony from physicians who have treated gun violence victims or from victims of gun violence. He also won’t allow testimony on the effectiveness of permit-to-purchase programs in other states. Similar testimony was allowed in the federal trial.

Jennifer Longenecker’s mother died in the 2012 Clackamas Town Center shooting, and her father died by suicide several years later.

“My mom’s death was really hard for my dad,” Longenecker testified in June. “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.”

Thomas Wheatley, a consultant to Oregon Alliance for Gun Safety, an organization working to end gun violence, said Longenecker’s testimony was a powerful moment.

“You don’t hear somebody tell that kind of story every day,” Wheatley said. “That kind of heart-wrenching loss is why so many volunteers and grandmas picked up clipboards for the first time in their lives and got Measure 114 on the ballot.”

Raschio’s ruling was a blow to Oregon Department of Justice lawyers who sought to prove that shootings have become more lethal in part because of high capacity magazines.

Raschio also handed the state a victory: He narrowed the scope of what he’ll consider at the trial saying he won’t consider questions of how the law will be implemented in the future. He limited the scope of the trial to whether or not the new law is constitutional as it is written.

“I’m just not going to guess what the program is going to look like,” Raschio told the lawyers. “I find it persuasive that the case law says that you can’t speculate how a law is going to be applied.”

Constitutional challenges to firearms regulations in federal court are typically resolved by a judge after opposing sides submit written briefs and oral arguments. Full trials are rare. The federal trial in June was the first in the country since the U.S. Supreme Court’s ruling last year that gun laws must be “consistent with this nation’s historical tradition of firearm regulation.” That trial was packed full of Revolutionary War era historians and firearms experts who testified about gun laws and technology at the time the Second Amendment was written.

In addressing the Supreme Court’s new historical tradition standard, Immergut’s 122-page ruling dove deep into the weeds to suss out the difference between a “magazine” and an “accoutrement” in 18th century parlance. A magazine, she said, was an ammunition depot. Accoutrement, on the other hand, referred to the cartridge boxes holding individual rounds and were not considered arms. Her decision lays the foundation of an official record that will be used in an appeal and that is likely to eventually end up before the U.S. Supreme Court, whose current members have been hostile to gun restrictions.

The Oregon appellate and Supreme Courts have ruled in favor of gun regulations a handful of times in recent years. In 1993, the Oregon Court of Appeals ruled in favor of Multnomah County when it found that assault rifles were not protected under the state constitution because they “originated as or evolved from military ordnance.”

And the Oregon Supreme Court ruled in 2013 that a Portland ordinance that prohibits carrying loaded firearms in public was constitutional.

“The ordinance at issue here reflects a contemporary legislative response to identifiable threats to public safety stemming from the carrying of loaded firearms in public within a city, when the conduct creates an unreasonable and unjustified risk of harm to members of the public,” Justice Richard Baldwin wrote in the unanimous decision.

Regardless of how Raschio rules, his decision is likely to be appealed. If that happens, the higher court could leave Raschio’s ruling in place while they hear the appeal or issue a stay, temporarily blocking his ruling while they hear the appeal.

Given how high profile gun laws and Measure 114 are, the Court of Appeals could opt to send any appeal straight to the state Supreme Court. It’s not common but has happened before. In 2022, an Oregon case to determine if the U.S. Supreme Court’s decision banning nonunanimous juries applied retroactively was sent straight to the Oregon Supreme Court. The same happened in 2013 with a challenge to then-Gov. John Kitzhaber’s execution moratorium.

Copyright 2023 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.