Gun Law Next Week: On Friday, a federal judge announced she will decide early next week whether or not to halt a voter-approved gun law. This comes only days before the law is supposed to go into effect.
Judge Says She Will Make a Decision Over the New Oregon Gun Law Next Week
U.S. District Judge Karin J. Immergut stated, “This is a very complicated area of law,” and went on to explain that she needed more time to review the arguments and cases cited by both parties before making a decision, especially in light of the recent Supreme Court ruling that drastically altered the standards that must be applied to gun laws. “You’re looking at a different landscape now.”
Immergut argued that a temporary restraining order would be an exceptional remedy to prevent Measure 114 from taking effect in Oregon on December 8 as planned. However, that is precisely what the plaintiffs in the action are asking for.
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A permit would be needed to buy a gun, and magazines with more than 10 bullets would be illegal under the proposed rule.
Voters narrowly approved the additional restrictions on November 8, with widespread support coming from the state’s more liberal, populous counties. Voters were against the plan by as much as a three-to-one margin in certain outlying counties.
The Oregon Firearms Federation, owners of gun shops in Marion and Umatilla counties, and the sheriffs of Sherman, Union, and Malheur counties have all filed an action to prevent the bill from going into force.
The legal climate has evolved considerably since Measure 114 was drafted. This summer, the U.S. Supreme Court issued a rule that completely altered the framework judges must apply when evaluating gun regulations. Legislation passed after the ratification of the 14th Amendment in 1861 must now have its origins in the American experience prior to that date (1791).
“It is a new day,” said attorney John Kaempf on behalf of the Oregon Firearms Federation. Those precedents, he argued, “are in the rubbish” after the Bruen judgment. After the Dobbs ruling, they are as irrelevant as citing Roe v. Wade.
Sherriff Bowen made comments following the hearing, saying that high-capacity magazines are the norm and that it would be nearly impossible to enforce the legislation.
He echoed the claim made by attorneys in court that most pistols and rifles in circulation today had magazine capacities of more than 10 rounds when he remarked, “Every gun that you come across presently contains more than 10 rounds.” It’s widespread, and it’s available.
Bowen argued that mental health issues, rather than firearms, posed a greater threat, and he called for increased efforts in this area.
To which I replied, “I’m optimistic,” and he continued. My sincere wish is that the state and the plaintiffs can come to an understanding and work together toward a solution that will make the state a safer place for everyone.
State attorneys were not available for comment.
Both the plaintiffs and the defendants, Oregon Governor Kate Brown and State Attorney General Ellen Rosenblum presented their arguments in court files submitted in advance of Friday’s hearing in language reminiscent of the 18th and 19th centuries.
The complaint states, “[Measure] 114 is not compatible with the Nation’s historical record of adequately analogous legislation.” It argues that there are no precedents in American law that can be used to uphold the new measures. This ruling invalidates Section 114 of the Act.
The Oregon Rifles Federation’s complaint continues by enumerating numerous firearms that have been manufactured that can hold more than ten rounds each.
The Oregon Firearms Federation describes the Puckle Gun, “a tripod-mounted multi-barreled flintlock rifle that contained 11 rounds,” as the first “machine gun.” The item was “patented in 1718, 73 years before the Bill of Rights and, ultimately, the Second Amendment was approved.”
The state responded earlier this week, saying high-capacity magazines are not considered weapons and are not needed to shoot any firearm. Therefore, the Second Amendment does not protect them.
According to the state’s answer, based on a declaration by an American history professor at Fordham University Saul Cornell, “in 1791, ‘nearly all firearms were single-shot,’ and ‘guns capable of firing more than a single cartridge may best be classified as unusual.
On Friday, state attorney Brian Marshall brought up the same argument in court, saying that Thomas had stated in his Bruen judgment that the court can take into account unusual societal concerns or major technological advancements.
A 12-round magazine was available for this pistol in the 18th century, as would be pointed out to you, Marshall warned. “Because of technology, the risks are different whether it was harmful before or now.”
He said that a 12-round gun from the 18th century was far safer because each shot took so long to fire.
Kaempf explained to Immergut that the Supreme Court’s judgment took the initiative away from her.
According to Bruen, “Constitutional Guarantees are not Guaranteed if They are Subject to Courts,” Kaempf argued. All tools that constitute tolerable arms, even if they did not exist at the time of the foundation, are protected by the Second Amendment.
There were claims that the Oregon Firearms Federation’s Second, Fifth, and Fourteenth Amendment rights were infringed throughout the permitting process. They claimed the ban “prevents law-abiding persons with reasonable self-defense needs from exercising their right to keep and bear guns,” referencing the Supreme Court’s Bruen decision from last summer.
However, the state argued that the Bruen ruling explicitly permits pre-purchase restrictions such as background checks and safety education.
The court ruled 5-4 in favor of the plaintiffs, and Justice Clarence Thomas wrote that nothing in their analysis suggested “shall issue” licensing regimes were unconstitutional. This term is used to describe states with requirements for exercising Second Amendment rights, but which are not based on an individual’s ability to prove a need to own or carry a firearm.
Rather, “it appears that these shall-issue regimes, which typically require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that persons bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens,'” Thomas wrote.
A federal judge Friday said she would decide early next week whether or not she would block a voter-approved gun law days before it is set to take effect.
— OPB (@OPB) December 2, 2022
Marshall, at the close of the session, assured the court that the state was prepared to begin issuing licenses on December 8. This statement was met with laughs from the audience, who were clearly not convinced.
Measure 114 will become law on December 8 and the application will be available for download on the Oregon State Police website on the same day, according to a statement released by the Oregon State Police shortly after the hearing concluded. There have been “record quantities of weapons transactions never seen before in the program’s 26-year history,” the statement claimed of the state’s background check system.
Shop owners and consumers alike are worried about the impact a backlog in background checks is having on their ability to sell firearms. If background checks aren’t finished by Dec. 7 at midnight, OSP says buyers will require a permit.
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Provisions of Measure 114 are meant to eliminate a loophole that has led to many gun shops in the state releasing purchased firearms after the legally mandated three days even if the background check has not been completed.
Immergut said she will make a decision on Monday or Tuesday regarding a possible temporary restraining order. No matter what she decides, a fuller hearing on the plaintiffs’ request for a preliminary injunction to halt the law’s implementation until its constitutionality can be determined is still expected.
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