Experts question if Measure 114 will hold up in court

AP Photo/Jae C. Hong

Oregon hasn’t exactly been a pro-gun state for a good, long while now. However, with Measure 114’s passage, they’re set to become one of the most restrictive states in the nation when it comes to firearms.

This is what a slim majority of voters in the state apparently wanted, so now they’ll get it good and hard.

But some experts apparently doubt the law will survive in court.

“The Supreme Court ruled earlier that New York’s laws were too strict, so there’s a new standard on what states and cities can limit guns with,” said political science professor Jim Moore.

He said there are similar lawsuits going on in California “along exactly the same lines. Using this same standard that the court came up with.”

This lawsuit claims Measure 114 is unconstitutional and violates the Second Amendment.

So will this hold up in court?

“It’s hard to say because there’s been so few cases. The Supreme Court has largely been flushing this out,” said Tung Yin, a law professor at Lewis & Clark Law School.

Yin and Moore say it comes down to whether they can make an argument strong enough that says their right to bear arms has been infringed.

“No right is unrestricted. The First Amendment has limits and so of course the Second Amendment can have limits. So the challenge is now when do restrictions become so overbroad that they violate the amendment,” Yin said.

“The federal judge, if it goes forward, will look at it and say, OK, in Oregon, what types of guns are sold, what do people have in their possession, is this normal? And that will be the crux of the case,” Moore said.

Except “in common use” doesn’t necessarily just apply to what’s common in Oregon. This is a constitutional issue, which means it has broader implications than just in one state. That means the courts would look at the total number of given types of guns in the entire US.

Since there are some 24 million modern sporting rifles in private hands, it seems unlikely that one can successfully argue they’re not in common use.

Further, many of these regulations aren’t going to have an 18th-century parallel. For example, requiring a permit before one may purchase a firearm. You’re going to be hard-pressed to find such a measure in the immediate aftermath of the Second Amendment’s passage.

It’s just not there.

Measure 114 is something that many in Oregon–mostly in cities like Portland or Eugene–said they wanted, but the problem with ballot initiatives like this is that there’s often little understanding of the constitutionality of the proposed law.

While lawmakers also routinely pass unconstitutional laws, it’s a lot easier to convince a handful of people that a law goes too far than an entire state.

As we can see, Measure 114 is a prime example of just that happening. Even so, it only barely passed in a state that Biden won by more than 16 points.

So will it survive?

Obviously, I don’t think it will. However, it also depends on how far both sides want to take this and, ultimately, what the courts themselves decide with regard to whether they’ll hear the case or not. Particularly, the Supreme Court, which isn’t going to take every gun control case that comes down the road.

But based on the Bruen standard, I just don’t see how this law sticks around.