Oregon Judge Says Gun Control Ballot Measure Violates State Constitution

Harney County Circuit Judge Robert S. Raschio promised a ruling on the constitutionality of Oregon’s Measure 114 by Thanksgiving, and he delivered a heaping helping of common sense and respect for the right to keep and bear arms when he issued his decision on Tuesday. In a 40-page decision, Raschio declared that the ballot measure, which imposed a ban on “large capacity” magazines as well as a new permit-to-purchase requirement for all would-be handgun buyers, violates Oregon’s constitution and cannot be enforced going forward.


While Oregon Attorney General Ellen Rosenblum said she will appeal Raschio’s decision, the judge’s order will likely keep enforcement of Measure 114 on ice for the near future, which is good news for both gun owners and law enforcement across the state. Several sheriffs testified in opposition to the ballot measure during the week-long trial in Harney County, and Raschio found their comments compelling, though not the only reason to rule the permit-to-purchase requirement unconstitutional.

Three salient facts were agreed upon by the parties at trial: A) Ballot Measure 114 delays the purchase of firearms for a minimum of 30 days; B) the permit-to-purchase program derives its language source in the concealed handgun license statutes (ORS 166.291, et. al); and C) the Federal Bureau of Investigations (FBI) refuses to conduct criminal background checks. The court finds these agreed to facts are fatal to the constitutionality of the permit-to-purchase scheme.

In fact, the scales, at least in rural communities, regarding Ballot Measure 114 weigh negatively on public safety. The court finds that the testimony of Harney County Sheriff Dan Jenkins, who leads five deputies, and Union County Sheriff Cody Bowen, who leads fifteen deputies, demonstrated definitively citizens cannot rely on law enforcement to respond quickly to their needs if they are subject to a break in or threat of deadly physical harm. Victims can be left without a law enforcement response for hours. A citizen’s need to protect themselves, their loved ones and their property is immediate as there is no one else will be there to do it for them.


That de facto 30 day waiting period facially violates the rights of Oregon residents to use a handgun in self-defense, according to Raschio, and it’s hard to disagree.

As for the magazine ban imposed by Measure 114, while a federal judge has previously ruled that magazines are not arms and therefore have no protection under the Second Amendment, Raschio determined that magazines are arms under Article 1, § 27 of the state constitution, and that there “is no historical basis for limiting the size and capacity of firearms, including their magazines.” But Raschio also opined that under Measure 114’s language, the magazine ban would ultimately prohibit the possession of commonly owned pistols and rifles as well as the magazines they use.

The court finds that all semi-automatic handguns and rifles, the most popular forms of firearms for self-defense in country today, are banned under Baliot Measure 114, Section 11.The action, skeleton of the firearm, needs a magazine to be a gun. Each gun has a fixed magazine under the definition section because the gun has ammunition feeding device that lifts one bullet into the chamberat a time. There is no way to permanently alter that function to not accept magazines containing over ten rounds, and they are readily capable of accepting magazines of over ten rounds. According to the testimony, that eachof magazines adapted by manufactures currently to hold only ten rounds are actually 10 + 1 rounds under the definitions of Ballot Measure 114, meaning they would be banned. This is because the semi-automatic firearms can take detachable magazines holds ten rounds and the fixed magazine holds one round. The court finds that if the firearm has a functionality to allow a detachable magazine to be attached to the fixed magazine, it is illegal under Ballot Measure 114, Section 11 (1).


So, a semi-auto ban disguised as a prohibition on “large capacity” magazines. If Measure 114 makes ownership and possession of the most popular firearms in the country a criminal act, there’s absolutely no way it could stand under either Oregon’s protections on the right to keep and bear arms or the Second Amendment to the U.S. Constitution, despite U.S. District Judge Karin Immergut’s earlier and contrary conclusion that Measure 114 is constitutional.

Large capacity magazines “are not commonly used for self-defense, and are therefore not protected by the Second Amendment,” Immergut wrote. “The Second Amendment also allows governments to ensure that only law-abiding, responsible citizens keep and bear arms.”

She ruled that Ballot Measure 114′s permitting system does not violate the Second Amendment and therefore does not deprive Oregonians of their liberty.

If you have a few hours to spare, I’d encourage you to read both Raschio’s opinion and Immergut’s ruling. I have my own bias, to be sure, but I found Raschio’s decision to be far more substantive than what Immergut issued earlier this year.

Neither judge is going to have the last word on Measure 114, of course. Immergut’s decision has already been appealed to the Ninth Circuit, while Raschio’s decision will soon be appealed as well. For the time being, however, Oregon gun owners have good reason to give thanks, and are still free to purchase a pistol without waiting a month beforehand or a 20-round magazine without fear of criminal prosecution.


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