Federal judge hears closing arguments for Oregon’s gun restriction measure

PORTLAND, Ore. (CN) — The future of Oregon’s Measure 114 — or at least part of it — is now up to a federal judge after attorneys for pro-gun advocates and the state finished closing arguments Friday in a bench trial to determine the gun restriction bill’s constitutionality.

The lawsuits involving Oregon’s controversial new law are separated by the state’s federal and state courts, though the overall disputes around the measure are generally similar. By requiring gun purchasers to pass through stricter vetting measures and banning ammunition magazines holding more than 10 rounds, opponents say the law violates their constitutional rights to bear arms while violating the due process clause.

That’s the main argument presented by Oregon Firearms Foundation anyway, which filed the first federal lawsuit in late November 2022 after the law narrowly passed with 50.7% of the vote. Shortly after the groups’ filing against former Oregon Governor Kate Brown and Attorney General Ellen Rosenblum, three others followed. All are consolidated under the purview of U.S. District Judge Karin J. Immergut.

But those who filed in state court — a lawsuit led by Gun Owners of America and the Gun Owners Foundation — say the law also violates Oregon’s Constitution by banning firearms that were present during the ratification of the state’s Constitution. Their arguments convinced Harney County Judge Robert S. Raschio to place a temporary restraining order against the measure on Dec. 6, 2022, until the matter goes to trial this September.

Immergut’s temporary pause on the measure arose the same day after state attorneys admitted that Oregon was not yet prepared to implement its permit-to-purchase program, which expands Oregon’s current permitting process by requiring gun purchasers to obtain a permit, complete law enforcement-approved training, submit their photo ID and fingerprints and pass a background check.

The first day of the federal trial began Monday, where attorneys for Oregon Firearm Federation and the consolidated plaintiffs interviewed witnesses that said it was necessary to possess firearms capable of holding 10 rounds or more. The defense held the floor for the next three days, where several witnesses testified as to how magazine restrictions help prevent mass shootings, delay the time it takes for a shooter to reload their gun and how the prevalence of mass shootings are relatively new because repeating firearms didn’t arise in common use until the last century.

Come Friday, a packed courtroom eagerly listened to closing arguments from plaintiff attorney Matthew Rowen, defendant attorney Harry B. Wilson and intervening defendant attorney Zachary Pekelis representing Oregon Alliance for Gun Safety — all of whom focused on whether Oregon’s measure aligns with precedents set by the U.S. Supreme Court in New York State Rifle & Pistol Association Inc. v. Bruen and District of Columbia v. Heller.

In the 2022 decision for Bruen, SCOTUS held that New York’s requirements for obtaining a licensed concealed firearm did not pass its test applied in Heller, which requires courts to “assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.” Bruen also noted how 43 U.S. states with concealed gun-carry permits are “shall issue” jurisdictions, “where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability.”

Rowen argued that while Measure 114 lists several objective criteria to purchase a gun, the fact that it allows a permitting agent to use their own “discretionary criteria” to deem someone unsuitable is inherently subjective. Wilson countered this argument by noting how the opinion’s list of “shall issue” jurisdictions includes Oregon’s current concealed-carry law and that the measure’s new wording is nearly identical — passing the assignment of using “reasonable grounds” to deny a permit from a sheriff to a permitting agent.

But while the attorneys agreed to disagree, Rowen also argued that the measure’s permitting process violates the due process clause by requiring a permitting agent to get a “thumbs up” from the FBI for fingerprints.

“What Oregon requires to happen can’t happen,” Rowen said, stating that under federal law, the measure “imposes a hurdle impossible to clear.”

Wilson said that he is unsure whether the FBI will approve fingerprints and that there may be legislation to address it. However, he also noted that there is no provision in the measure that requires an agent to withhold a permit if the FBI refuses to help.

“The Legislature can amend the law and they need to because the law they passed is unconstitutional,” Rowen said on rebuttal.

While addressing the measure’s ban on high-capacity magazines, Rowen said most magazines could be readily altered with a screwdriver to fit more than 10 rounds and that, after the measure passed, firearm distributors immediately began withholding orders to Oregon residents. From there, Rowen said the law is either unconstitutionally vague or outlaws nearly every gun model, later adding that high-capacity magazines are of common use because they are owned by millions of Americans and commonly used by law-abiding citizens.

In one response, Wilson focused on the “common use” of large-capacity magazines for self-defense, particularly how individuals seldom fire more than 10 rounds in such an event. Meanwhile, Pekelis argued that — outside of fixed magazines and bullets — detachable large-capacity magazines are not protected under the Second Amendment because they are technically accessories or, historically, “ammunition containers” unnecessary for firearm operability.

Perhaps Wilson’s most convincing argument was how Measure 114 is consistent with the nation’s tradition of firearm regulation in response to “unprecedented societal concern” and “dramatic technological changes.” At best, Wilson argued, only .002% of U.S. guns in 1868 were repeating firearms. But with the later release of trap guns, Bowie knives and Tommy guns, the U.S. did implement weapon restrictions that avoided an outright ban on firearms and knives.

Immergut said she would take the matter under advisement and issue a decision as quickly as possible.

Follow @alannamayhampdx

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