Sheriffs testify in opposition to Measure 114 – Bearing Arms

Sheriffs testify in opposition to Measure 114 – Bearing Arms

We’re now on day three of the trial in Harney County, Oregon to determine the constitutionality of Measure 114, the narrowly-approved voter referendum that bans the sale, manufacture, and transfer of “large capacity” magazines and establishes a permit-to-purchase scheme that would impose a de facto 30-day waiting period on the purchase of any and all firearms. So far, things don’t appear to be going particularly well for the state’s attorneys defending the anti-gun measures, with Harney County Judge Robert Raschio shutting down their attempt on Tuesday to keep Oregon State Police Superintendent Casey Codding from discussing just how many rounds he and other officers are carrying to defend themselves and the communities they serve.

Oregon Special Assistant Attorney General Harry B. Wilson called the information irrelevant because the voter-approved gun control Measure 114 specifically excludes law enforcement from its restriction on the use of gun magazines that can hold more than 10 rounds.

Law enforcement officers are invested with statutory authority and a responsibility to protect the public that civilian gun owners simply do not have, Wilson said.

“This is not relevant to civilian defense,” Wilson argued. “It’s an apples to oranges comparison that is not relevant to the determination of the constitutionality of Measure 114.’’

Attorney Tony L. Aiello Jr., who represents the two Harney County gun owners who filed the suit challenging the voter-approved measure, said Codding’s testimony is intended to counter the state’s argument that magazines with more than 10 rounds aren’t necessary for self defense.

Wilson interjected, “Then put a civilian on to talk about self-defense. This is a different situation.’’

Aiello said civilians defend themselves with guns in situations that aren’t that different from what law enforcement faces.

“Self-defense is self-defense,” he argued. “The statute doesn’t say that large capacity magazines are only useful in the hands of law enforcement. It doesn’t say that. And I think that Superintendent Coddings’ testimony will support that.”

Raschio on Tuesday allowed the superintendent’s testimony, as well as subsequent testimony from the sheriffs of Union and Harney counties, but said he’d decide overnight based upon further study of the law whether or not the evidence is relevant for consideration in the case.

Codding ended up testifying that he carries a Glock with a 17-round magazine and one in the chamber, as well as two other 17-round mags for his sidearm. Additionally, Codding and other state troopers are armed with an AR-15 rifle and at least three 20 or 30-round magazines.

While the superintendent’s testimony was informative, a more compelling argument against Measure 114’s prohibition on magazines over ten rounds came from two county sheriffs, who testified about the importance of an armed citizenry in their jurisdictions.

Union County Sheriff Cody Bowen and Harney County Sheriff Dan Jenkins then each testified that their deputies often have to rely on armed civilians because it takes time for their deputies to respond to calls in their largely rural communities. Bowen and Jenkins each testified about the threats of attacks from bears, wolves and coyotes in their communities.

“I’ve never found myself in a situation where I wish I had less bullets,” Bowen said.

Why should those residents who must rely on themselves for protection be forced to use less effective magazines than the law enforcement officers who’ll show up after a crime has been committed? The state’s attorneys contend that all of Measure 114s edicts are perfectly compatible with Oregon’s state constitution, even though they’ve not been able to point to any restrictions on firearm capacity at the time the state constitution was ratified. Instead, they tried to attack the credibility of one of the plaintiffs’ witnesses.

Earlier Tuesday, a lawyer for the state sought to discredit the testimony of Ashley Hlebinsky, a former curator at the Cody Firearms Museum in Wyoming called by the gun owners challenging Measure 114 to testify about the earliest guns made.

After Hlebinsky spent more than an hour on the stand, Wilson, the state’s lawyer, delved on cross-examination into the awards Hlebinsky had received from the Second Amendment Foundation and into Hlebinsky’s husband’s ties to the firearms industry.

Wilson even referenced the July opinion of Oregon’s U.S. District Judge Karin J. Immergut, who highlighted Hlebinsky’s professional and personal ties to the gun industry and lack of training as an historian when assessing her credibility after she had testified earlier this year in a separate challenge to the measure in federal court.

Raschio made it clear that the federal judge’s ruling won’t influence him.

“I don’t care, frankly, about other courts’ determinations on credibility, unless they found them in contempt or they perjured themselves,” Raschio said. “I’ll make my own credibility determinations, Mr. Wilson.”

While Raschio allowed that of questioning to briefly continue, he eventually shut down the state’s attorney when he began to grill her about consulting work she’s done with Daniel Defense. Hlebinsky discussed her role in helping the gun company create a museum for their products, but Wilson was more interested in the fact that a Daniel Defense rifle was used by the killer in Uvalde, Texas.

“Daniel Defense manufactured the firearm used in the Uvalde mass shooting, correct?” Wilson asked. The gunman fired an AR-15 rifle, killing 19 schoolchildren and two teachers at Robb Elementary School in Uvalde, Texas.

Aiello objected to the question, saying it was irrelevant.

Wilson told the court he was attempting to show Hlebinsky’s alleged bias.

The judge said he didn’t see how the use of the Uvalde gun impacted the witness’ credibility.

“What you’re doing is inflammatory,” Raschio ruled, “and I’m going to sustain the objection.”

The state can’t defend Measure 114 on its face, so instead they’re trying to impugn the character of the witnesses for the plaintiffs. When it comes to the history of gun regulations in Oregon (and elsewhere), as Hlebinsky told the court, multi-shot firearms firearms were definitely in existence at the time the Oregon constitution was written. The state tried to score a point by getting the historian to acknowledge that she wasn’t aware of any guns with a capacity of more than 10 rounds that were commonly used for self-defense before 1860, but that misses the broader point. A multi-shot revolver represented at least as big a technological development as detachable magazines with a capacity of more than ten rounds, but Oregon didn’t ban the possession or manufacture of those firearms. Indeed, it wasn’t until last year that the state (or at least 50.7% of voters) decided that a detachable magazine capable of holding more than ten rounds is beyond the pale.

There is no longstanding tradition of limiting the number of rounds available to use in self-defense in Oregon’s history or in Article 1, Section 27 of the state’s constitution, which simply says that “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.”

If the people have the right to keep and bear arms in defense of themselves and the state, then it stands to reason that they should be no more restricted than law enforcement in terms of the arms they use in self-defense or community protection. I don’t think Oregon’s constitution allows for these types of mandates to begin with, but the exemption for law enforcement makes Measure 114 even more constitutionally suspect than if both police and lawful gun owners were told they must abide by the anti-gun mandate.

Raschio has already granted an injunction halting enforcement of Measure 114, and so far it doesn’t look like the state has put on the kind of case they’d need in order to get the judge to reverse his earlier decision. The trial is expected to last for the rest of the week, and I suppose it’s possible that Wilson will pull a rabbit out of his hat, but going by the trial’s first few days things are looking pretty good for the gun owners challenging the anti-gun ballot referendum.

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