Oregon Officials Dispute Judge's Facts on Gun Control Measure

(AP Photo/Jae C. Hong, File)

The circuit court judge who ruled that Oregon’s Measure 114 establishing a “permit-to-purchase” scheme and imposing a ban on so-called large capacity magazines violates the state constitution says he’ll hold off on signing his final order in the case until after a January 2nd hearing, where the state will have the opportunity to object to some of his factual findings.


It’s highly unlikely that the hearing will change Harney County Circuit Judge Robert S. Raschio’s determination that Measure 114 conflicts with Article 1, Section 27 of the Oregon constitution, which states, “The people shall have the right to bear arms for the defense of themselves, and the State, but the Military shall be kept in strict subordination to the civil power.” Allowing the state to present its case, however, does make it at least slightly more difficult for Oregon Attorney General Ellen Rosenblum to assert irregularities in the circuit court trial while the case is appealed.

There are a couple of Rashcio’s findings that are being challenged by the state, starting with his determination that the FBI would not be handling the expanded background checks that come as part of the permit-to-purchase scheme.

At the time of trial, the FBI refused to allow state police access to the bureau’s fingerprint-based criminal history data.
Before Raschio issued his ruling on the measure, the state Attorney General’s Office worked out a temporary fix with the FBI, according to court records.
The FBI offered a “grace period”that would grant Oregon State Police access to the bureau’s national criminal history data to complete the fingerprint-based background checks, as long as the state police won’t let anyone other than a local police chief, a county sheriff or one of their subordinate officers have access to the information.
Under the measure’s language, a local police chief, sheriff or “their designee,” may serve as the “permitting agent,” who would obtain an applicant’s fingerprints.
Before “permitting” could work, the FBI had to authorize state police to submit fingerprints obtained from local permitting agents through the FBI’s Next Generation Identification database, a biometric system that allows for a search of identity record. But the FBI was concerned a third party could access the criminal history data.
Under a negotiated temporary fix, the state police will only share the national criminal history information with a sworn law enforcement officer, according to the state attorney general’s office.
Regardless of the FBI’s position, Wilson argued that the judge had said he wouldn’t consider how the measure’s regulations would be put into practice, and would restrict his ruling to the language of the measure.
Aiello, for the Harney County gun owners, responded that the FBI’s changed stance occurred after trial, and the judge shouldn’t consider it because there’s “no guarantee” the FBI will continue to allow Oregon access to do the fingerprint-based national criminal history records.
I’d say Aiello has the better argument, especially if the “fix” the AG has worked out with the FBI is being described as “temporary” and subject to a grace period.
Among the other objections from the AG’s office is Raschio’s finding that the new permit-to-purchase scheme would amount to a 30-day waiting period, since that’s the amount of time law enforcement has to approve or deny a permit. The AG’s office argues that the 30 day period is the maximum time allowed by law, but permits could be issued much sooner than that. The federal Fourth Circuit Court of Appeals, however, recently ruled Maryland’s permit-to-purchase requirement (known as a Handgun Qualification License) was unconstitutional precisely because of that potential month-long wait, which the Fourth Circuit ruled is long enough to implicate and intrude on the rights of would-be handgun buyers.
The AG’s office also contends that the judge got it wrong when he ruled that magazines are an integral part of a firearm, citing testimony from their expert witnesses on muzzle-loaded guns that do not use magazines. In the vast majority of modern-day firearms, however, magazines are necessary for the firearm to function as designed. Without them you in essence have a single-shot firearm, and it’s hard to argue that anyone buys a semi-automatic handgun or rifle with the intent of only having one round at their disposal in case of self-defense.
Most of the other complaints sound like nit-picking more than anything else; like disputing Raschio’s determination that the media sensationalizes mass shootings and claiming the judge’s use of the 2021 National Firearm Survey to determine that 38 percent of Oregon residents are gun owners and half of them own “large capacity” magazines that would be banned under Measure 114 is “inadmissible hearsay”. I don’t expect these arguments will be persuasive to Raschio, but the Oregon Attorney General’s office is going to use every tool it has to try to enforce the anti-2A edicts within Measure 114, no how frivolous or insubstantial they might be.

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