It's been almost two years since 50.6% of voters in Oregon approved a sweeping gun control referendum that, among other things, bans the sale and possession of "large capacity" magazines and imposes a county-level permit-to-purchase scheme. The law, however, has been on hold since shortly after the election results were certified, thanks to Harney County Circuit Judge Robert S. Raschio. 

\The judge first granted a preliminary injunction against enforcing any of Measure 114's provisions; a decision that was upheld by the appellate courts. Last November Raschio made the injunction permanent after holding a six-day trial on the merits of the law and whether it violated Oregon's state constitution, which declares "The people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power." 

Oregon Attorney General Ellen Rosenblum vowed to appeal Raschio's decision, and today a three-judge panel on the Oregon Court of Appeals heard from attorneys on both sides of the litigation. 

Oregon Senior Assistant Attorney General Robert Koch, representing the state, told the panel that Measure 114 is reasonable and would foster public safety but not infringe upon people’s rights. He argued that firearms weaponry, including large capacity magazines, has advanced since the 1850s when the state constitution took effect.

“There’s nothing about a large capacity magazine that is necessary for any firearm to function,” Koch said, adding that a Las Vegas shooter sprayed hundreds of bullets into a crowded concert in a short time during a 2017 attack.

In Oregon’s pioneer era, Koch said, Colt revolvers that could fire four to eight rounds and single-shot flintlock rifles were common.

Yes, and "large capacity" magazines are equally common today. While magazines that can hold more than ten rounds may be used by some criminals, they're also lawfully possessed by tens of millions of gun owners. The National Shooting Sports Foundation estimates that about 75% of detachable magazines in the U.S. can hold more than ten rounds; about 718 million of the estimated 964 million magazines in civilian hands. 

These arms are in common use for lawful purposes. They are not dangerous or unusual, and that means they should be protected by the text of Oregon's right to keep and bear arms. 

Tony Aiello Jr., an attorney with Tyler Smith & Associates in Canby who’s representing the plaintiffs, told the court that Measure 114 creates unconstitutional barriers for people who want to own guns.

Oregonians already undergo background checks to purchase firearms, Aiello said, adding that the permit requirement in the measure would make it onerous for purchasers, forcing them to wait for background checks to clear.

With the existing system, federally licensed firearms dealers are allowed to release firearms to purchasers after three days if the background check is delayed.

It's also a defacto gun registration scheme, and would impose significant costs on would-be gun owners. County sheriffs would be able to charge up to $150 per permit, which doesn't include the cost of the mandated training required under Measure 114. 

If Measure 114 were on the ballot this year, I think there's a very good chance it would fail. It only passed by about 25,000 votes in 2022, out of almost 2,000 votes cast statewide. And even though Measure 114 hasn't been enforced over the past two years, Portland has seen a substantial decrease in violent crimes; including homicide, robberies, and aggravated assaults. That's largely the result of a strategy of targeted deterrence, including the use of the Ceasefire program that I've written about before here at Bearing Arms. 

Ceasefire aims to find the "very small and very high-risk population is driving a significant portion of the gun violence in Portland" and then stop violence before it happens.

The plan includes frequent meetings between police, prosecutors, community groups, and others who will help them identify the most at-risk people, who will then be directed toward the intensive case management.

Measure 114 takes the opposite approach to fighting crime. Instead of concentrating on that small portion of the population who's at a high risk of committing violent crimes (and being victimized, as well), it casts a wide net over lawful gun owners throughout the state; creating new impediments to exercising a fundamental right while the perpetrators of violence continue to acquire their guns through illegal means. 

From both a constitutional and pragmatic standpoint, Measure 114 is a hot mess. Here's hoping the appellate court agrees, and keeps the gun control referendum on ice.