A trial held in Portland last week aims to determine whether Oregon’s voter-approved gun-control measure is constitutional in light of a U.S. Supreme Court ruling last summer.
Should Ballot Measure 14 survive this legal test, the state would have among the strictest gun laws in the nation.
The measure at issue would ban the manufacture and sale of magazines capable of holding more than 10 rounds and require anyone who wishes to obtain a firearm to get a permit first. Permits will require taking a safety course, demonstrating competency with a firearm, paying fees, and completing a federal background check.
Passed by Oregon voters last November with just 50.7 percent of the vote, the measure has yet to be enforced pending an injunction granted by Harney County Judge Robert S. Raschio in a separate suit filed in state court.
Last week’s bench trial under Trump-appointed U.S. District Court Judge Karen J. Immergut is among the first challenges heard since the U.S. Supreme Court’s landmark ruling last year in New York State Rifle and Pistol Association v. Bruen.
That ruling changed the test that lower courts had previously used to evaluate challenges to firearm restrictions.
To uphold a gun restriction under the Supreme Court’s new test, a court must consider whether it is consistent with the country’s “historical tradition of firearm regulation” at the time the Second Amendment was written, among other considerations.
In December, Immergut declined to hear a motion for a temporary restraining order of the measure, writing that its burden on the Second Amendment right was “minimal.” But she also found the state unprepared to implement its permit-to-purchase program—a factor Raschio had also cited.
Whatever the outcome of last week’s trial, the case is likely to be appealed and widely expected to wind up in the U.S. Supreme Court, where the record of testimony, exhibits, and arguments from the Oregon case will be key.
The Parties’ Perspectives
Plaintiffs challenging the measure include three elected sheriffs, two Oregon gun store owners, the Washington-based Second Amendment Foundation, the Oregon Shooting Sports Association, and the Oregon Firearms Federation (OFF), an Oregon gun rights advocacy group.
They argued that Ballot Measure 114 would virtually end the legal sale of firearms in the state and deprive citizens of their Second Amendment rights under the U.S. Constitution.They also claimed the measure would violate the Due Process Clause by criminalizing the possession of magazines that were legal when acquired.
“This case is about constitutional rights,” Daniel Nichols, attorney for the plaintiffs, said during opening arguments. He said it was about “the right to keep and bear arms under the Second Amendment as well as the right to keep property.”
They contend that high-capacity magazines should not be considered bearable arms, but instead an accessory that can be regulated. The availability of such magazines, they argued, “pose an immediate risk to the health, safety and well-being of citizens in their state.”
They further asserted that modern weapons represent a “dramatic technological change” from the firearms that existed when the Second Amendment was written and should be approached as such.
Rocky Start for Plaintiffs
Plaintiffs’ goals were immediately frustrated when Judge Immergut refused to hear arguments on the measure’s “permit-to-purchase” provision.
Under the permit-to-purchase requirement, Oregonians would have to undergo a background check—which the FBI has reportedly said it will not conduct—and take a class that does not yet exist in order to obtain a permit to purchase a firearm.“To get the permit, an applicant would have to show up with a firearm to demonstrate the ability to load, fire, unload and store the firearm,” plaintiff’s attorney Leonard Williamson told The Epoch Times.
“But you can’t get a firearm without the permit. And under Oregon’s stringent gun storage laws, no one can loan a firearm to another.”
Plaintiffs claim this creates “impassable barriers” to a firearms purchase.
“The Oregon State Police are not in any way prepared to implement the absurd rules this measure creates,” Kevin Starrett of OFF told The Epoch Times. “Local police and sheriffs likewise do not have the means, the money, or the facilities to implement it.”
Immergut would not consider the provision, ruling the issue is “unripe.”
Since the permitting provisions have not yet been applied, no one can claim to have been damaged by them.
“A facial challenge challenges the constitutionality of a law as written,” Immergut wrote in a pre-trial order. “Evidence outside of the text of BM 114, such as how the provisions may or may not be applied at some future date, is of no consequence to this Court in deciding Plaintiffs’ facial challenge.”
Plaintiffs could bring a case about how the law infringed on constitutional rights only if the law goes into effect and harm can be proven.
“This devastating permit system will essentially end gun sales in the state,” Starrett said. ”It is impossible to imagine how anyone could consider that constitutional.”
What is a Magazine?
Ballot Measure 114 bans any magazine capable of holding more than 10 rounds.But the parties disagree on the definition of a magazine and plaintiffs contend that the wording of the ballot measure means that all magazines could be banned.
Attorneys for the defense argued that a magazine is an “accessory” rather than a firearm, and does not affect the operability of the gun itself.
If magazines are defined as accessories rather than firearms they are not protected under the Second Amendment, the defense asserted. That would make them easier to regulate.
Plaintiffs disagreed.
“This position is patently absurd,” Starrett argued. A magazine is an integral component without which a magazine-fed firearm cannot function as intended, he explained.
“The logical extension of the state’s position is that all magazines can be banned by a vote of the masses or the legislature, rendering modern firearms useless.”
If magazines are found to be arms and not an accessory, that could make them harder to regulate.
Plaintiff’s witness Adam Johnson, owner of Coat of Arms Firearms, testified that virtually all firearms magazines would be banned under this measure, not just those capable of holding over 10 rounds.
He explained that nearly any magazine could be modified to hold more rounds. Because the language of the law bans any magazine “capable of” holding more than 10 rounds, it could be used to ban all magazines.
Public Safety Concerns
The defense explored the relationship between magazine size and mass casualty incidents.
Using expert witnesses, they set out to demonstrate that high-capacity magazines pose an immediate risk to the citizens in their state and that modern weapons are dramatically different from the firearms in use when the Second Amendment was written.If mass shootings using high-capacity magazines and modern weapons are found to be a significantly new public safety concern, defendants contend that could justify tighter regulation of firearms under the Second Amendment.
Witnesses for the state provided evidence about mass casualty events involving firearms capable of holding 10 rounds or more.
Professor Louis Klarevas of Columbia University offered data concerning mass shootings that occurred between 1990 and 2022, especially those in which fatalities reached double-digit figures due to high-capacity magazines.
The majority of all mass shootings resulting in double-digit fatalities took place after 1998, he testified.
Klarevas also testified that lower capacity magazines provide a “critical pause”—the moment an active shooter pauses to reload, where shooting victims have a chance to run, hide, or fight.
Oregon Health and Science University surgeon Mackenzie Cook testified that he regularly oversees patients with gunshot wounds and that, regardless of how the hospital prepares, a mass shooting incident involving more than five to 10 victims would outstrip the hospital’s resources.
University of California-Berkeley historian Brian DeLay testified on firearm history, describing repeating firearms as “exceedingly rare,” if not almost non-existent until the last century.
The case wrapped up on June 9 after five days.
Judge Immergut could take weeks, or even months, to issue her written opinion. Meanwhile, the injunction ordered in Harney County will keep the law on hold pending a trial scheduled for September.
