Litigation Highlight: Federal Judge Rejects Challenge to Oregon’s Ballot Measure 114, but the Measure is Enjoined by a State Court
On December 6, a federal judge in the District of Oregon denied a motion for a TRO and preliminary injunction of Oregon’s Ballot Measure 114, a ballot initiative that narrowly passed in the November election. Measure 114 enacts a permit-to-purchase requirement, mandates safety training, fingerprinting, and a criminal background check to obtain a gun permit, and bans magazines capable of holding more than 10 rounds of ammunition. The plaintiffs in Oregon Firearms Federation v. Brown—Oregon gun owners and a gun-rights advocacy group—challenged both the permit-to-purchase requirement and large-capacity magazine ban on Second Amendment grounds. District Judge Karin Immergut denied the motion, while also staying implementation of the state’s permit-to-purchase system for 30 days.
The judge first reviewed the Bruen framework, and then turned to the initial question of whether the large-capacity magazine restriction regulates conduct covered by the Second Amendment. Judge Immergut found that, “[w]hile magazines in general are necessary to the use of firearms for self-defense, Plaintiffs have not shown, at this stage, that magazines specifically capable of accepting more than ten rounds of ammunition are necessary to the use of firearms for self-defense.” Therefore, possessing large-capacity magazines specifically is not protected, according to the opinion. Acknowledging that some other courts “have found that these magazines are in common use,” Judge Immergut ultimately held that the plaintiffs had also failed to meet their burden of showing that magazines with the capacity to hold more than 10 rounds are commonly used for lawful purposes. She noted past dicta from the Ninth Circuit that such magazines “have limited lawful, civilian benefits,” and observed that the magazines “are often used in law enforcement and military situations . . . [and] disproportionately used in crimes involving mass shootings.” Therefore, the judge held that the magazine-capacity restriction does not regulate protected conduct.
Nevertheless, Judge Immergut evaluated the ban’s consistency with historical tradition “for the sake of argument.” She first determined that, despite the existence of weapons capable of firing multiple rounds during and prior to the 18th century, “semi-automatic weapons did not become ‘feasible and available’ until the beginning of the twentieth century.” Because “large-capacity magazines represent the kind of dramatic technological change envisioned by the Bruen Court” and implicate unprecedented mass-shooting-related concerns, the judge conducted a more nuanced analogical inquiry. She focused on historical state regulation of dangerous weapons often used in criminal activity (like bowie knives and slungshots), and state laws that recognized “the danger associated with assembling the amount of firepower capable of threatening public safety” outside of the military context. Judge Immergut held that these laws were comparably justified to Oregon’s magazine-capacity law, and thus established a historical tradition of similar regulation.
The judge then moved on to the permit-to-purchase provision. Relying on Bruen’s statement that “nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes,” Judge Immergut held that “Measure 114’s permit-to-purchase requirements track squarely with the objective regime outlined in Bruen.” While she left open the possibility of an as-applied challenge to the provision, she noted that the plaintiffs had not brought forth any such challenge because the permit-to-purchase system is not yet operational. After rejecting the takings clause and due process challenges, the judge found that no irreparable harm would result to plaintiffs from denial of their motion. She relied primarily on the fact that the new laws do not impact those who already possess large-capacity magazines for private use, or those who currently possess guns without a permit. Judge Immergut denied the TRO motion, stayed the enactment of the permit-to-purchase provision “in light of the difficulty the State has conceded,” and ordered the parties to propose a briefing schedule for the plaintiffs’ preliminary injunction motion.
Also on December 6, an Oregon state court judge issued a temporary restraining order in Arnold v. Brown that prevents Measure 114 from being enforced as of December 8, and set a preliminary injunction hearing for December 13. The state court order does not appear to be accompanied by a written opinion, and notes simply that it is “based upon findings made on the record, under” the Oregon state constitution’s Second Amendment-analogue. The Oregon Supreme Court rejected a request for expedited review of the Arnold decision on December 7, which means that the measure remains paused pending subsequent developments in the state-court case. On December 13, the state trial court judge extended his restraining order of the permit-to-purchase requirement for 10 additional days.
One interesting aspect of the Oregon Firearms Federation decision is its focus on the nature of the gun violence problem (or lack thereof) during the Founding Era. Some judges who have applied Bruen in recent months have concluded, with little analysis, that the “societal problem” sought to be addressed by modern gun regulation is essentially unchanged from problems that existed during the Founding Era. For example, in an October 12 decision striking down the federal ban on possessing guns with a removed or obliterated serial number, a federal judge in West Virginia wrote that:
[T]he “societal problem[s]” addressed by Section 922(k) appear to be crime, including crime involving stolen firearms, and assisting law enforcement in solving crime. It is difficult to imagine that this societal problem did not exist at the founding.
In Oregon Firearms Federation, by contrast, the judge relied on evidence submitted by the state “that there is no known occurrence of a mass shooting resulting in double-digit fatalities from the Nation’s founding in 1776 until 1948, with the first known mass shooting resulting in ten or more deaths occurring in 1949.” The source for that assertion is a lengthy affidavit from a Columbia University professor, who reviewed digital newspaper archives dating back to 1607 to construct a data set of shootings resulting in at least 10 deaths throughout U.S. history (excluding “large-scale, inter-group violence such as mob violence, rioting, combat or battle skirmishes, and attacks initiated by authorities acting in their official capacity”). This evidence suggests that the nature and amount of gun crime has changed substantially since the Founding Era and, indeed, even since the early 1900s. Therefore, treating gun violence as a static “general societal problem that has persisted since the 18th century”—to use Bruen’s terminology—may be a dubious approach, especially when dealing with laws that are justified by reference to mass shootings. If, as Oregon Firearms Federation suggests, aspects of the social problem are new and did not exist in the 18th or even 19th centuries, then the lack of analogous regulation at that time doesn’t tell us much, if anything, about constitutionality because there is no reason to expect that legislators would have addressed nonexistent problems.
 The plaintiffs also brought Fifth and Fourteenth Amendment challenges to the magazine-capacity restriction, alleging that it was an unconstitutional taking without due process. This post will focus only on the Second Amendment claims.