Gun control on trial in Oregon

Gun control on trial in Oregon
Townhall Media

Are ammunition magazines “arms” protected by the Second Amendment, or just an accessory that can be regulated or banned without infringing on anyone’s rights? As we detail on today’s Bearing Arms’ Cam & Co, that’s one of the questions at the heart of the federal trial over Oregon’s Measure 114 taking place this week.


The trial is being overseen by U.S. District Judge Karen Immergut, who previously declined to issue a restraining order halting enforcement of the measure’s ban on the sale and possession of “large capacity” magazines because, in her belief, magazines are not arms but mere accessories. Now that the case has moved beyond the preliminary stages that question is once again front and center, and the plaintiffs have been putting up a number of witnesses to counter the claims by the state that “large capacity” magazines are rarely used in self-defense, and more often in mass murder.

Adam Johnson, a gunsmith and owner of Coat of Arms in Keizer, which customizes and sells firearms, testified about an incident in May 2006 in Indiana where he worked as a security guard and stopped a robbery at a convenience store. Johnson said he was shot at twice and returned fire with 13 rounds. Shortly after, law enforcement arrived.

“It was ruled a justified shooting,” Johnson said. “I am alive because I had enough rounds to finish a gun fight.”

… Sherman County Sheriff Brad Lohrey, another plaintiff, testified about his family’s history in law enforcement, including his father, who also served as the county’s sheriff. Lohrey testified that his dad “stored guns in my bedroom” in a glass case when Lohrey was a kid.

“As soon as I could walk, I started shooting,” the sheriff testified. “I have a strong respect for firearms.”

Lohrey, who is retiring, said there are just six deputies to cover the community’s 1,900 residents, leaving hours of the day with no one on duty. The community is so small that residents sometimes have to assist the sheriff, he testified. He also spoke about the popularity of the AR-15 style rifle among the county’s residents. He told the judge that ranchers use it for “predator control,” specifically to protect cattle from coyotes, which he said require “significantly” more than 10 rounds.

“I want them to be able to purchase whatever firearm they want,” Lohrey said of Sherman County’s residents. “I want them to continue to protect themselves.”


While Measure 114 also contains a provision establishing a permit-to-purchase scheme that also serves as a backdoor gun registry, Immergut ruled this week that because the state has yet to implement the permitting system a legal challenge to that particular portion of the measure is not yet ripe for judicial review, so the bulk of this week’s testimony has centered around the criminalization of commonly-owned magazines.

In contrast, attorneys for the state said they will show that most popular firearms can be purchased and function with 10-round magazines. Hannah Hoffman, an attorney representing the state, said their experts would show Measure 114 “is consistent with this nation’s tradition of gun regulations.”

Hoffman, who is employed by the law firm Markowitz Herbold, previewed several experts she said would focus on a range of issues, including the history of firearms as well as the effects of gun violence. She said one expert would testify that in most self-defense cases where people use a firearm, a small number — only 0.3% — fire more than 10 rounds. Nationally, the average is 2.2 rounds and in Oregon it’s just 1.3 rounds, Hoffman said.

Of course, in most defensive gun uses the trigger is never pulled at all. Does that mean that bans on loaded firearms would be constitutional? Of course not, so why should an arbitrary limit of 10, 12, 15, or 20 rounds be any different? We can’t trust that we’ll be the “average” victim of a violent crime, or that we’ll only be facing one lone assailant if we’re ever targeted for a carjacking, home invasion, or armed robbery.


I have a sneaking suspicion that the plaintiffs’ arguments are going to fall on deaf ears when it comes to Immergut, but even if she decides in the state’s favor Measure 114 won’t be taking effect immediately. There’s also a separate challenge to the measure based on Oregon’s state constitution, and a judge in Harney County has placed a hold on the law’s enforcement until a September trial; a move that the Oregon State Supreme Court left untouched several months ago. Still, a bad decision by Immergut will undoubtably be cited by other anti-2A justices looking for an escape hatch from Bruen‘s mandate that the Second Amendment not be treated as a second-class right, and this case is still one to watch going forward.

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