We could be less than three weeks away from a complete and total shutdown of lawful commerce in arms in Oregon, with Ballot Measure 114 and it’s new magazine ban and “permit-to-purchase” requirement slated to take effect on December 8th. According to the Oregon State Sheriffs Association, once the law is enacted, Oregon residents will need to obtain that purchase permit before they can legally acquire a firearm, but the state has not yet developed the permit itself, and is unlikely to do so before December 8th.
Then, of course, there’s the issue of Measure 114’s constitutionality. Can a law requiring would-be gun owners to obtain pre-approval from the State (along with going through a mandated training course) and banning the sale, manufacture, and possession (in most cases) of commonly-owned firearms magazines really stand up to court scrutiny? The Oregon Firearms Federation, an Oregon gun store owner, and Sherman County Sheriff Brad Lohrey are among the critics of Measure 114, and they’re now suing to prevent the new gun control laws from taking effect.
The plaintiffs seek a court-ordered injunction that would bar the measure from becoming law and a court ruling that Measure 114 is unconstitutional. If a judge isn’t inclined to prevent the entire measure from taking effect, the plaintiffs ask that the court in the alternative at least bar the restriction on gun magazine capacity.
The lawsuit names Oregon Gov. Kate Brown and Attorney General Ellen Rosenblum, whose office has said it will defend against challenges to the measure, set to go into effect Dec. 8.
The vast majority of the new lawsuit is dedicated to challenging the new ban on magazines, though the lawsuit does ask for the entirety of Measure 114 to be enjoined from enforcement. As the plaintiffs allege, Oregon’s new ban on “large capacity” magazines strikes at the heart of the Second Amendment’s protections, while the ban’s prohibition on the continued use of “large capacity” magazines in most settings, including for self-defense, violate the Constitution’s Takings Clause.
Millions of law-abiding Americans own firearms equipped with magazines capable of holding more than 10 rounds of ammunition. There is nothing unusual or novel about this technology. Many of the nation’s best-selling handguns and rifles come standard with magazines that can hold more than 10 rounds—and firearms equipped with such magazines are safely possessed by law-abiding citizens in the vast majority of States. The reason for the popularity of these magazines is that in a confrontation with a violent attacker, having enough ammunition can be the difference between life and death.
Although magazines capable of holding more than 10 rounds have existed and been in common use for more than a century, Oregon, through 2022 Ballot Measure 114— “114”—bans their manufacture, sale, import, or transfer effective December 8, 2022.
In Oregon’s view, these standard issue magazines are actually “large capacity magazines” that threaten public safety. In November 2022, the State took the additional and extreme step of banning mere possession of magazines over 10 rounds. Under 114, owners of such magazines who want to keep the property they lawfully acquired and have used only for lawful purposes may no longer continue to do so.
114 violates multiple constitutional provisions. First, it impermissibly burdens Plaintiffs’ Second Amendment rights. The Second Amendment protects the right to keep and bear arms “typically possessed by law-abiding citizens for lawful purposes.” This applies to keeping and bearing arms both inside and outside the home.“ The standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.”
Capacity limitations just aren’t a part of the historical tradition in this country. You don’t find a host of statutes from the mid-1800’s banning the use of multi-shot revolvers, for instance, nor do you find any evidence of moms demanding lever actions be banned after the Civil War, even when gun companies were bragging about a magazine capacity that was so large you could “load on Sunday and shoot all week long”. It’s not until you get into the 1980s that you start to see bans on “large capacity” magazines; an invented term that has no real definition other than what’s provided by lawmakers. In California and Oregon, for example, “large capacity” is defined by anything that can hold more than ten rounds, while in Colorado a “large capacity” magazine can hold no more than fifteen rounds. Local officials in Columbus, Ohio recently announced plans to put a municipal magazine ban on the books; in that case, a “large capacity” magazine would be defined as any magazine that can accept more than thirty rounds.
The real definition of “large capacity” magazine is “a magazine anti-gun activists want to ban”, and as the new lawsuit makes clear, these activists don’t have a legal leg to stand on under the “text, history, and tradition” test laid out by the Supreme Court in Bruen. Whether that’s enough to endanger the entirety of Measure 114 remains to be seen, but I also have a feeling that this isn’t the last lawsuit we’ll see filed before December 8th, and future litigation may focus more on the “permit-to-purchase” requirements that will impose severe burdens on all those attempting to exercise their Second Amendment rights.