Though Oregon voters narrowly approved Measure 114 and its permit-to-purchase mandate and ban on “large capacity” magazines last November, the gun control measures have not been enforced thanks to an injunction by Harney County Circuit Court Judge Robert Raschio. The Oregon Supreme Court declined to stay that injunction after it was granted last December, so even after a federal judge denied a similar request in a separate lawsuit the ballot initiative has been kept on ice.
Raschio heard arguments from both sides in a week-long trial in September and recently told the parties in Arnold v. Kotek that he expects to issue his decision before the Thanksgiving holiday after one last round of briefing by the defendants.
Court records show Oregon Governor Tina Kotek and State Attorney General Ellen Rosenblum both filed 21-page documents Friday afternoon in the case, and Oregon State Police Administrator Casey Codding’s filing was 22 pages in length.
All three filings are responses to plantiffs’ “First Request for Admissions” to certain case factors involving Oregon gun control policy and its implementation. The plaintiffs filed a document listing two points to support its case, insisting the defendants concede to the plaintiffs’ arguments as the defendants’ “admissions” to those arguments.
The defendants objected in writing to the demands for “admissions,” writing, “Defendant objects to the requests to the extent that they are not complete in and of themselves or are vague, overbroad, compound, conjunctive, harassing, ambiguous, burdensome, and/or oppressive.” They also note confidential nature involved in some of the information in question.
The plaintiffs’ arguments include insistence the defendants, “Admit that the FBI has informed Defendant that it will not perform fingerprint-based criminal background checks for permit to purchase applicants,” and “Admit that the FBI has informed Defendant that the FBI has determined that Ballot Measure 114 does not meet the requirements of Pub. L. 92-544.”
Note the lack of a denial on the part of Kotek and Rosenblum. Instead of simply telling Judge Raschio that the FBI has said no such thing, they complain about the nature of the demand and maintain that any discussions between the FBI and state officials about conducting NICS checks on those who would be forced to apply for a permit to purchase a handgun are “confidential.”
If the FBI isn’t going to conduct the background checks that are mandated under Measure 114, not only should Judge Raschio be aware of that fact, but the public has a right to know as well. I doubt the state’s obfuscation is going to sit well with the judge, who has already expressed skepticism that the ballot measure is acceptable under Article 1, Section 27 of Oregon’s state constitution, which declares “[t]he people shall have the right to bear arms for the defense of themselves, and the State, but the Military shall be kept in strict subordination to the civil power”.
In granting the injunction against the magazine ban portion of Measure 114, Raschio opined the new mandate will “dramatically change the rules on law abiding citizens who currently own weapons or wish to purchase weapons with large capacity magazines.”
The vast majority of gun owners are responsible, careful citizens with a great deal of respect and care for their firearms and only use them for law purposes including self-defense. The large capacity magazines provisions will go into effect unless the court issues a preliminary injunction immediately impacting their constitutional right to bear arms.
… The precedent in Oregon shows no historical statutory bans on the size of magazines or on the types of firearms until 1933. All preceding restrictions were on use, e.g. prohibitions on riding horses through town terrifying neighbors with firearms. The right to bear arms included military firearms used for state and self- · defense at the time the provision was drafted. As noted, large capacity magazines predated the automation and mass production of metals. Large capacity magazines existed in the 1830s, nearly two hundred years ago. The type of firearm with a large capacity magazine was known and used for self-defense at statehood and would have been understood to be firearm[s] being developed for militia usage and self-defense.
The court finds that magazines indistinguishable from the firearms they power and are protected weapons and Ballot Measure 114, section 11 acts on a prohibition on firearms and their protected uses under Article I, section 27.
U.S. District Judge Karin Immergut reached a very different conclusion in July, ruling that both portions of Measure 114 were constitutional. The permit-to-purchase mandate is similar enough to a license to carry that it passes historical muster, according to the judge, while the ban on “large capacity” magazines is okay because (in part) “the features unique to LCMs—the ability to shoot more than ten bullets without reloading—are not “commonly used . . . for self-defense.”
It’s worth noting that U.S. District Judge Roger Benitez issued a more recent decision that found California’s ban on “large capacity” magazines unconstitutional, so there’s a split among district judges in the Ninth Circuit. But Immergut’s ruling has no bearing on Raschio’s upcoming opinion, and if he does conclude that the magazine ban and permit-to-purchase mandates violate Oregon’s constitution, the law will remain on hold at least until the state Supreme Court hears the appeal by state officials.
Based on the judge’s previous rulings in Arnold v. Kotek, I’m pretty confident that Raschio is going to find in favor of the plaintiffs. The judge’s opinion won’t be the last word in the case, but a decision that the magazine ban and permit-to-purchase laws are a violation of the right to keep and bear arms will still be a welcome one, and good reason for gun owners to give thanks next Thursday.