Oregon Measure 114 delay would lead to ‘unnecessary deaths,’ the attorney general argues

Oregon’s attorney general argued in court papers Wednesday that any court-ordered delay of gun control Measure 114 would result in more unnecessary deaths and forestall steps “to reduce the risk of a massacre” in the state.

The recent voter-approved measure, set to take effect Dec. 8, will ban the sale, transfer or manufacture of magazines that hold more than 10 rounds of ammunition, require a permit to purchase a gun and only allow a gun to be sold or transferred once a criminal background check is completed.

The new regulations, narrowly approved by 50.7% of votersare designed to reduce mass shootings, suicides and homicides.

The Oregon Firearms Federation, joined by three county sheriffs and two gun store owners in Keizer and Pendleton, last week filed an emergency motion for a preliminary injunction to bar Measure 114 from becoming law, arguing its requirements violate their Second Amendment right to bear arms, as well as their due process rights.

The federation’s suit was the first court challenge to Oregon’s new gun control measure. A second lawsuit was filed Wednesday by the Second Amendment Foundation, Firearms Policy Coalition, two firearms dealers and one gun owner.

US District Judge Karin J. Immergut has scheduled a hearing at 10 am Friday on the firearms federation‘s emergency motion, six days before the measure is scheduled to go into effect.

The gun owners and three sheriffs have argued that magazines that hold more than 10 rounds are commonly used for self-defense, and without them, law-abiding gun owners will be at a tactical disadvantage when confronting criminals.

The attorney general’s office, in its responseargued that large-capacity magazines that hold more than 10 rounds are not “arms” protected by the Second Amendment and the state’s new requirement for a permit to purchase a gun will withstand constitutional scrutiny.

In a 42-page court filing Wednesday, a senior assistant attorney general wrote that any move to put the measure on hold while litigation proceedings would likely result in a rush of people buying “tens of thousands” of more guns and ammunition before the regulations could take hold and endanger public safety.

A stampede to buy guns has already occurred.

Before Nov. 8, the state police averaged 849 background check requests a day for new gun purchases. Since then, the daily average has quadrupled to 4,092, the attorney general’s filing says.

The attorney general’s office argues that the current gun owners who have filed a lawsuit challenging the measure won’t be harmed if the measure becomes law.

“Plaintiffs can continue to keep and bear the arms they currently possess, which is enough to protect their Second Amendment rights for the pendency of this litigation,” wrote Brian Simmonds Marshall, a senior assistant attorney general.

The legal landscape has changed since the measure was drafted.

In June, the US Supreme Court set a new legal standard for evaluating Second Amendment claims. in a 6-3 ruling in June, the nation’s high court struck down a New York law that placed strict limits on carrying guns outside the home. The court’s majority directed lower courts to use a new “text-and-history” standard when evaluating challenges to firearms regulations.

Courts must determine whether “the Second Amendment’s plain text” protects the conduct in which the plaintiff wishes to engage, and if it does, then decide if the regulation “is consistent with this Nation’s historical tradition of firearm regulation.”

The firearms federation and other plaintiffs challenging the measure say that restrictions on the size of ammunition magazines are not part of any “historic tradition.”

They further argue that the magazine capacity restriction amounts to the “physical taking of property without compensation,” and is therefore unconstitutional.

A nonprofit called the Silent Majority Foundation, which advocates for individual liberty and wants to serve as a friend of the court in support of the firearms federation’s legal challenge, argued in a new legal filing Wednesday that magazines of more than ten rounds “are older than the United States.”

“The first American presence of such firearms occurred, fittingly in Oregon, with a firearm that included a twenty-two round magazine as Meriwether Lewis carried a Girandoni air rifle on his famous expedition with William Clark and the Corps of Discovery in 1804-06, its filing said.

The attorney general’s office is confident the restrictions on large-capacity magazines will withstand the new standard set by the US Supreme Court in the New York case.

“Large-capacity magazines are also analogous to dangerous weapons that have historically been restricted without infringing on the core right of self-defense,” Marshall wrote.

He noted that 12 other states and the District of Columbia have enacted similar laws restricting large-capacity magazines.

Further, the office argues, there’s no historical precedent to compare to today’s gun violence epidemic.

Mass shootings by a single individual that resulted in 10 or more deaths were unknown in US history until 1949 and rare until 2007, according to the filing by the attorney general‘s office.

“Every mass shooting since 2004 that resulted in 14 or more deaths involved in large-capacity magazines. The use of large-capacity magazines for perpetrate mass shootings has no precedent in the founding or reconstruction eras,” Marshall wrote. The social concern of massacres perpetrated by single shooters has no precedent in 1791 or even in 1868.”

Ryan Busse, a former senior executive in the firearms industry who is now senior advisor to Giffords, the gun safety organization led by former Congresswoman Gabrielle Giffords, filed a brief with the court in support of the Oregon attorney general’s stance. He also wrote a book called, “Gunfight: My Battle Against the Industry that Radicalized America.”

He wrote that large-capacity magazines “are not necessary for the basic intended use of firearms. Further, in my experience large-capacity magazines are not necessary to effectively deploy guns for self-defense or sporting purposes like hunting.” He also said that most handguns and AR-15 style rifles can accept and fully function with a magazine that holds 10 or fewer rounds.

The attorney general’s office also challenged the plaintiffs’ allegation that the measure violates their due process rights.

People who already own magazines that hold more than 10 rounds can retain them and continue to keep and use them as long as they do so on their property or for sport shooting, shooting competitions or hunting, within the law’s restrictions.

Measure 114 does not retroactively prohibit the possession of legally acquired large-capacity magazines, the attorney general’s office noted.

“The law does not punish past purchases, only future conduct,” Marshall wrote. “Legislation readjusting rights and burdens of such ownership is not solely unlawful because it upsets expectations otherwise settled.”

The attorney general’s office also defended the permit-to-purchase gun program. It contends the nation’s high court ruling in the New York case “expressly allows states” to adopt programs in which applicants are required to undergo a background check, pass a firearms safety course, and undergo fingerprinting before obtaining a license or permit, as required under Measures 114.

“None of the Plaintiffs have applied for a permit. Nor have Plaintiffs offered any reason to think that one or more of them would be denied a permit under Measure 114 in violation of the Second Amendment. And if they were denied a permit, or one was not approved after 30 days, they could seek a speedy review in the Oregon courts,” Marshall wrote.

The attorney general’s office did not address what steps the state police or local law enforcement are taking to put a permit-to-purchase program in place by Dec. 8. Several county sheriffs in the state have vowed not to enforce the measure’s magazine restrictions.

Eugene Police Chief Chris Skinner, president of the Oregon Association of Chiefs of Police, said the association invited chiefs to a Zoom meeting on Nov. 22 to discuss what’s needed for local police agencies to process applications to buy guns. The measure says local law enforcement would handle applications, and it’s unclear whether county sheriffs or local police would take that role, he said.

“This is new for us,” he said. “Unfortunately, in this case, we have more unanswered questions and a lot of unknowns.” The association has forwarded its questions to the Oregon Department of Justice to try to get some guidance and clarity, he said.

Questions regarding whether Oregon State Police had created a uniform permit application and what would constitute law enforcement-approved firearms training that someone applying for a permit would be required to completely remain unanswered, he said.

Typically, the chiefs or sheriffs are consulted by lawmakers who consider public safety-related legislation, Skinner said. With the voter-approved measure, “we were not consulted at all to answer these questions on the front end. It’s a little frustrating.”

The second legal challenge filed Wednesday came from the Washington-based Second Amendment Foundation, the Firearms Policy Coalition, a Clackamas County gun owner and two gun dealers from Douglas County and Washington County. It largely challenges the measure’s restrictions on large-capacity magazines and seeks a similar court-ordered injunction.

Their complaint argues that many of the most popular handguns and rifles are made with magazines that hold more than 10 rounds of ammunition.

They allege that the measure’s restrictions will not accomplish what its proponents want it to do.

” All it will do is leave law-abiding citizens more vulnerable to attack from better-armed and more ruthless assailants,” wrote attorney James L. Buchal, on behalf of the Second Amendment Foundation and its fellow plaintiffs. “Given the hundreds of millions of magazines in circulation in the country (including in Oregon, where they remain widely possessed), it will not be difficult for violent criminals to acquire them through illegal sales or importation despite Oregon’s ban.”

–Maxine Bernstein

Email [email protected]; 503-221-8212

Follow on Twitter @maxoregonian

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