The Firearms Policy Coalition and Second Amendment Foundation, along with the individual plaintiffs who sued the state of Oregon over the gun control restrictions enshrined within Measure 114, are taking their case to the Ninth Circuit Court of Appeals after a trial judge upheld the statutes on the most specious of arguments.
As we’ve previously discussed, U.S. District Judge Karin Immergut ruled that the state’s magazine ban doesn’t impact the Second Amendment rights of residents, claiming that “large capacity” magazines (arbitrarily defined as any magazine that can accept more than ten rounds) are rarely used in self-defense and therefore aren’t protected by the Second Amendment at all. That’s a complete misreading of the Supreme Court’s Second Amendment jurisprudence, which held in Heller that (quoting Justia’s summary of the case) “Private citizens have the right under the Second Amendment to possess an ordinary type of weapon and use it for lawful, historically established situations such as self-defense in a home, even when there is no relationship to a local militia.”
In other words, while self-defense may be the most important reason why we possess the right to keep and bear arms, it’s not the only activity protected by the Second Amendment.
But according to Immergut’s bizarre contention, even if “large capacity” magazines are protected, the state’s ban comports with the text, history, and tradition of the right to keep and bear arms despite the fact that prohibitions like Oregon’s are a modern invention not found in the historical record anywhere near 1791.
The judge also evaluated the new permit-to-purchase requirement based on the text of the measure, not on how the new requirement will be applied in practice. On its face, she found, it does not violate the Second Amendment because it contains “the kind of narrow, objective criteria” endorsed by the U.S. Supreme Court.
To obtain a permit, an applicant will be required to be fingerprinted, pass a background check, complete a firearms safety-and-training course and pay a fee.
Gun rights advocates had argued at trial it gives local sheriffs and police chiefs too much discretion to determine a person’s mental well-being and deny a permit based on a subjective standard. Law enforcement can deny a permit if they find the applicant is “reasonably likely to be a danger to self or others or to the community.”
Immergut ruled that Measure 114′s mental health provision is substantially similar to language contained in other shall-issue gun permitting jurisdictions and the measure contains sufficient safeguards, like judicial review, to prevent permitting agents from exercising “unbridled discretion.”
Lawyers for gun rights groups challenging the measure argued that the measure’s regulations violated Oregonians’ Second Amendment right to acquire a gun for self-defense and gun dealers’ rights to due process.
Kevin Starrett, executive director of the Oregon Firearms Federation, one of the plaintiffs in the federal case, called Immergut’s ruling “absurd,” on the federation’s website and said he’s confident it will be overturned by the 9th U.S. Circuit Court of Appeals.
“What we have read defies belief. While not entirely unexpected, Immergut’s ruling is simple nonsense and sure to be overturned at the 9th circuit,” he wrote.
I wish I was as confident as Starrett is about the Ninth Circuit overturning Immergut’s decision, but this is the same appellate court that has never found a gun control law to be unconstitutional in the fifteen years since the Heller decision was handed down. I have a feeling that it’s going to take SCOTUS to set things right, though I’ll be thrilled if the Ninth Circuit proves me wrong.
Even with Immergut’s ruling in place Measure 114 remains on hold thanks to a separate challenge to the prohibitions based on violations of Oregon’s state constitution. That case is scheduled for trial in Harney County in September, so for the time being Immergut’s decision can’t do much damage to Oregon residents. Other anti-2A judges around the country will most certainly be citing her ruling in their own decisions until or unless its mooted by the Ninth Circuit or the Supreme Court, however, so Immergut’s decision could still cause harm to our Second Amendment rights… at least in the short term.