U.S. District Judge Karen Immergut has denied a request by the Oregon Firearms Federation and several county sheriffs to grant a temporary restraining order blocking enforcement of Oregon’s Measure 114 from taking effect on Thursday, but did agree to a request by the state Attorney General’s office to stay the permit-to-purchase aspect of the ballot measure for 30 days “in light of the difficulty the State has conceded in terms of implementation of the permitting provisions at this stage.”
In her ruling, Immergut claims that the plaintiffs challenging the new gun control restrictions, which include a ban on the sale and possession (in most cases) of “large capacity” magazines that can hold more than ten rounds of ammunition, are not likely to succeed in their attempt to have the new laws deemed unconstitutional. In fact, according to the judge, ammunition magazines that can hold more than ten rounds of ammunition probably aren’t even protected by the Second Amendment.
While magazines in general are necessary to the use of firearms for self-defense, Plaintiffs have not shown, at this stage, that magazines specifically capable of accepting more than ten rounds of ammunition are necessary to the use of firearms for self-defense. As noted above, the “corollary . . . right to possess the magazines necessary to render . . . firearms operable” is “not unfettered.” Instead, the right is limited to magazines that are necessary to render firearms operable for self-defense and other lawful purposes.
Plaintiffs did submit evidence showing that popular firearms, such as certain variants of the Glock pistol, “come standard” with magazine capacities greater than ten rounds. But Plaintiffs have not produced evidence that these weapons can only operate with magazines that accept more than ten rounds of ammunition and cannot operate with magazines that contain ten or fewer rounds, as allowed under Measure 114.
By contrast, Defendants have produced evidence showing “all firearms that can accept a detachable large-capacity magazine can also accept a magazine that holds 10 or fewer rounds and function precisely as intended.” And, for firearms with fixed magazines, Defendants’ evidence shows that “[a]ny fixed-magazine firearm can be modified to hold 10 or fewer rounds and function as intended.” Id. As such, Plaintiffs have not shown that the magazines restricted by Measure 114 are necessary to the use of firearms for lawful purposes such as self-defense. Therefore, Plaintiffs have failed to show that magazines capable of accepting more than ten rounds of ammunition are covered by the plain text of the Second Amendment.
Even if these magazines are protected by the Second Amendment to some degree, Immergut says that they represent the kind of “dramatic technological change envisioned by the Bruen Court” allowing for restrictions; a rather bizarre argument given that semi-automatic firearms have been in common use for well over 100 years, and long guns with fixed magazines that have a capacity greater than ten rounds have been in common use since shortly after the Civil War. But Immergut’s decision is unfortunately full of these attempts to gloss over history; maintaining, for instance, that Measure 114’s permit-to-purchase law comports with the Bruen decision despite the fact that there are no gun owner licensing laws dating to the time of the Founding or the ratification of the Fourteenth Amendment cited by the defendants.
As of today, then, it looks like Oregon’s magazine ban will take effect on Thursday, with the permit-to-purchase statute set to take effect in early January (though Immergut helpfully advised the state to let her know if it needs more time). I doubt the Ninth Circuit is going to step in and reverse Immergut’s decision given the historical hostility towards the right to keep and bear arms in the appellate court, though that will undoubtably be the next stop for the request for a TRO.
It’s an understatement to call Immergut’s opinion disappointing, and the biggest harm to come from her decision not to stay enforcement of Measure 114 will be felt by those legal gun owners who could soon face criminal charges for carrying a pistol with a standard 17-round magazine. I don’t think the violent offenders in Portland are going to pay much mind at all to today’s ruling, but law-abiding gun owners should definitely be aware, particularly if they live in a county where local law enforcement hasn’t pledged to take a hands-off approach to enforcing the magazine ban.