Attorneys for the state of Oregon are making their case to a federal judge today, arguing that Measure 114’s magazine ban and “permit-to-purchase” law should take effect on December 8th as scheduled in order to prevent “unnecessary deaths” from taking place. Ironically, however, if the goal of the ballot measure is to ensure that only those deemed worthy enough by the state (or its political subdivisions) to own a gun can do so, then the law is already proving to be an utter failure.

As we’ve been reporting for the past few weeks, the narrow passage of Measure 114 (approved by just 50.7% of voters) has led to a huge spike in the number of gun sales. At the moment, the Oregon State Police are so backlogged with background check requests on firearm transfers that they’re automatically delaying all new requests, and the Oregon Capital Chronicle reports that it could take months to get through the checks that have already been submitted.

Under federal law, if a background check request isn’t completed within three days, dealers are allowed to proceed with the sale. Many firearm retailers choose not to take that route, but faced with a crush of customers who fear their ability to purchase a firearm will be completely curtailed if Measure 114 takes effect without the permit-to-purchase system in place, some gun shops in Oregon have made the decision to conclude the transaction if they haven’t heard back from the state police within 72 hours.

The owner of a gun store in Tigard, who spoke to the Capital Chronicle on the condition of anonymity, said he’s no longer waiting for background check to clear.

He said he and some other gun shop owners he knows are completing all sales, no matter the weapons sold, unless Oregon State Police determine a customer has failed a background check within three business days. He said he’s sold about 500 firearms this way.

“All the people releasing these (firearms) — we’re not happy about this. But we don’t have a choice,” the dealer said.

Other gun shops are openly advertising the loophole to encourage sales. J&B Firearms in Beaverton announced on Nov. 20 in a popular gun blog that it would invoke what it called a “nuclear option” to speed up the process.

In the post on the Northwest Firearms message board, the store encouraged customers to buy a weapon, submit information for the background check and return three days later – but before Thursday, Dec. 7 – to pick up their purchases.

“We also invite and encourage all other Oregon (federal firearms licensees) to join us in adopting this policy,” the store said in its announcement. “If this state wants to take us down, we believe we should go out with a bang, not a whimper.”

Not every gun store owner the Capital Chronicle spoke with has invoked the “nuclear option.” Some say they’re concerned about potential liability for proceeding with the sale, while others say they’re unsure when exactly the 72-hour window actually starts.

Ray Gunter, owner of Emerald Valley Armory in Creswell, said he’s not selling firearms until someone passes a background check because doing otherwise might be illegal. He echoed concerns from several other gun store proprietors that the policy might open them up to legal liability and license seizure.

But like the four other gun dealers interviewed for this story, he expressed a deep frustration with the background check backlog at Oregon State Police.

Its Firearms Instant Check System unit received more than 48,000 requests for a background check between Nov. 9 and 22, according to the agency’s data. The surge has slashed its rate of ruling on a background check within three days from 84% between 2018 and Nov. 8 —  Election Day — to 61%  between Election Day and Thanksgiving, Kennedy said.

Oregon State Police are now delaying all new requests for background checks.

Starrett, of the Oregon Firearms Federation, said he’s not sure when the three-day period technically begins — when the gun dealer submits the background check, or when state police notify the dealer that they’ve started looking at it. The latter case would narrow the rule’s application to a smaller group of customers.

That confuses some gun shop owners and managers, including Gunter in Creswell. He said he’s not taking advantage of the three day rule, but might consider changing his policy if he had more clarity, he said.

None of this would be happening were it not for Measure 114’s passage. The chaotic rollout of the gun control measures, including the distinct possibility that all lawful commerce in firearms will have to be halted until the permit-to-purchase system is put in place, has understandably caused a lot of Oregonians to want to buy a gun while they still can; not because they’ll be prohibited under the new laws, but because the new laws will make it impossible for any one to buy a gun, at least until the system is set up. After that, Measure 114 will “just” place incredible burdens on those who want to exercise their fundamental right to keep and bear arms, along with unfunded mandates for law enforcement that will likely reduce the number of officers on patrol in many jurisdictions.

Measure 114 was so ill-conceived that we don’t even have to wait for it to take effect to see the unintended consequences start to unfold. A gun control measure that’s led to tens of thousands of additional firearms being purchased. A permitting system that’s fueled so many gun sales thousands of guns are being sold before background checks have been completed. And businesses that the backers of Measure 114 swore wouldn’t be impacted are now closing their doors for good or looking to relocate.

Several gun stores have already announced they will close in the coming months, including Gunrunner Arms in Junction City. On its website, the store blamed uncertainty around Measure 114 and the current backlog for its expected closure.

“With the source of our income being outlawed, we will not be able to stay open past the first of the year,” its website reads.

At The Outdoorsman in Ontario, owner Julie Clark is turning away all customers seeking a new gun, despite the financial risk of getting stuck with her inventory. Clark is considering transferring her stock across the border to Idaho and setting up shop there at a big expense, she said.

Legal gun owners and federally licensed firearms retailers have already been harmed by Measure 114, unlike violent criminals in the state. The best thing that could happen at this point would be for one of the federal judges hearing the multiple challenges to grant an injunction barring enforcement while the law is being litigated. That would restore some normalcy to gun sales in the state, alleviate at least some of the uncertainty firearm retailers are facing, and most importantly, ensure that Oregonians can still exercise their fundamental right to armed self-defense.