On Measure 114, a tale of two judges

On Measure 114, a tale of two judges

How did a federal judge and a circuit court judge come to such different conclusions about the constitutionality of Oregon Measure 114’s ban on “large capacity” magazines and its permit-to-purchase scheme… and more importantly, what happens next to the multiple lawsuits challenging the anti-gun measures.

On Monday afternoon, U.S. District Judge Karen Immergut issued her ruling on a request for a temporary injunction blocking Measure 114 from taking effect later this week; declaring that the plaintiffs had failed to demonstrate irreparable harm if 114’s provisions were enforced. Immergut proclaimed that the “large capacity” magazines banned under Measure 114 probably aren’t protected by the Second Amendment anyway, and even if they are, there are enough historical analogues in history that the magazine ban comports with the Constitution. Further, Immergut argued, “large capacity” magazines are rarely required for self-defense purposes, but are more applicable to law enforcement and the military, so they’re not “in common use” for lawful purposes.

As for the permit-to-purchase measure, Immergut helpfully gave the state a month to get the permitting process in place and told them to ask for more time if necessary; ruling that the restrictive licensing and training mandates are likely to constitutional since the Bruen decision made it clear that there’s nothing fundamentally unconstitutional about a “shall issue” licensing system for concealed carry.

On Tuesday morning, however Harney County Circuit Judge Robert S. Raschio heard arguments in a separate lawsuit challenging Measure 114 on the grounds that it violates Oregon’s constitution; specifically, Article 1, Sec 27, which states “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”. Raschio issued his opinion from the bench rather than in written form, but he came to a strikingly different conclusion about the impact of Measure 114 on the fundamental rights of Oregon residents.

Raschio found that guns with more than 10 rounds existed when the Oregon Constitution was drafted in 1857 and when the constitution was adopted in 1859. He also found that magazines are not separate or distinct from “arms,” which are protected by the Oregon Constitution.

Marshall, of the attorney general’s office, had urged the Harney County judge to consider the experience of the state of California, which has had a similar ban on large-capacity magazines since 1994. “America’s largest market has operated under these rules for several decades, and I’m sure our market will be similarly served,” he said. California’s ban on large-capacity magazines also faces an ongoing legal challenge in federal court in San Diego.

Oregon gun owners still can have larger-capacity magazines in their home, on their own property and use them for target shooting, shooting competitions or other recreational purposes such as hunting, according to state law, Marshall argued.

[Plaintiff’s attorney Tony L.] Aiello responded, “But that is not the reason why Article 1, Section 27 exists….It is for self defense in the home, outside the home, at work if your employer will allow it. That’s the purpose of it. And many Oregonians – hundreds of thousands – are going to be unable to do so on Friday,” should the measure become law.

Raschio, ruling from the bench, said he was persuaded that “magazines are protected by the Oregon Constitution, and firearms containing fixed magazines that can hold 10 bullets or more are in common use within Oregon.”

Obviously I think Raschio had the better argument. Immergut’s opinion reminded me of those papers I’d write back in high school when I hadn’t done the reading necessary to adequately opine on the topic at hand. I’d fill paragraph after paragraph with meaningless bulls*** and hope that the teacher would accept quantity over quality. Immergut offers up a number of weak arguments about why ammunition magazines shouldn’t be protected under the Second Amendment and how Oregon’s ban is similar to other laws in history (including, bizarrely enough, an Illinois law forbidding private citizens from forming their own paramilitary organizations), but never squarely addresses the elephant in the room: laws limiting the capacity or firepower of arms simply can’t be found, either at the time the Second Amendment was ratified in the late 18th century or decades later when the Fourteenth Amendment was ratified after the Civil War.

It’s unquestionable that the availability of multi-shot firearms has increased dramatically since the days of the War of Independence, but up until the 1980s or so you really don’t see any move to limit firing capacity. That’s more than 100 years too late to really matter, according to the test laid out by the Supreme Court in Bruen, but Immergut tries to get around that inconvenient truth by falling back on her argument that ammunition magazines aren’t really “arms” protected by the Second Amendment in the first place.

The Ninth Circuit is probably going to go along with Immergut’s history-deficient rationale, but that doesn’t mean that SCOTUS will follow suit. As for the Oregon Supreme Court, Attorney General Ellen Rosenblum has no officially filed an appeal asking the court let the state begin enforcement of the magazine ban, so we likely won’t have to wait too long to learn the court’s decision.