A judge on Tuesday ordered Measure 114′s permit-to-purchase gun regulation be delayed for 30 days but allowed its ban on the sale and transfer of large-capacity magazines to take effect as planned on Thursday.
The requirement that background checks must be completed before any gun is sold or transferred in Oregon also will be allowed to go into effect.
U.S. District Judge Karin J. Immergut denied a temporary restraining order in a 43-page ruling just two days before the voter-approved measure is set to become law.
“The burden imposed by Measure 114 on the core Second Amendment right of self-defense is minimal,” the judge found.
“In light of the evidence of the rise in mass-shooting incidents and the connection between mass-shooting incidents and large-capacity magazines — and absent evidence to the contrary regarding the role of large-capacity magazines for self-defense — Defendants are comparably justified in regulating large-capacity magazines to protect the public,” Immergut wrote.
The ruling marked a big win for proponents and the drafters of Measure 114, who researched regulations in other states before presenting the broad gun-control measure to Oregon voters. Penny Okamoto, executive director of Ceasefire Oregon, said Tuesday in reaction to the ruling, “Frankly, I am full of relief and gratitude. Measure 114 has given voice to Oregonians who want strong, effective movement forward in the work to reduce gun violence.”
The Oregon measure, which passed with 50.7% of votes, calls for a ban on the sale, transfer and manufacture of magazines that hold more than 10 rounds; requires a permit to purchase a gun; and bars a gun sale or gun transfer before a background check is completed. Under current federal law, firearms dealers can sell guns without a completed background check if the check takes longer than three business days.
Immergut found the Oregon Firearms Federation, three county sheriffs and two gun-store owners had failed to show they will suffer “immediate and irreparable harm” if the measure takes effect. They also failed to demonstrate that magazines capable of holding more than 10 rounds are necessary for self-defense or commonly used for lawful purposes, she wrote.
“However,” she added, “in light of the difficulty the State has conceded in terms of implementation of the permitting provisions at this stage,” the judge temporarily put on hold the measure’s permit requirement for buying a gun.
That means that, for 30 days after the judge’s ruling or at least until Jan. 5, Oregonians won’t be required to obtain a permit to buy a gun. The parties in the federal cases are negotiating over the precise terms and whether that period will be sufficient to get a permitting process in place, said Assistant Senior Attorney General Brian Simmonds Marshall.
The judge directed the state attorney general and other parties to the case to report back to her if they need any further postponements.
Immergut issued her ruling after hearing two hours of argument in court Friday and upon reviewing legal filings in four different lawsuits filed in the last two weeks.
Despite an earlier assurance that Oregonians would be able to apply for permits on Thursday, the attorney general’s office late Sunday night urged the court to delay the permitting process for up to two months, acknowledging that local sheriffs and police agencies would not be ready to support the permitting process and that required firearms safety-and-training courses weren’t yet available.
The judge acknowledged the legal landscape had changed with the June U.S. Supreme Court ruling in New York State Rifle & Pistol Association Inc. v. Bruen, which struck down a New York law that placed strict limits on carrying guns outside the home.
But Immergut wrote, “it is equally important to recognize what Bruen did not do.”
As she did during Friday’s hearing, the judge pointed out that the majority in the 6-3 Supreme Court ruling noted that the Second Amendment is not a “regulatory straightjacket” that protects a right to “keep and carry any weapon whatsover in any manner whatsoever and for whatever purpose.” The Bruen decision, further, acknowledged the constitutionality of particular gun licensing, Immergut wrote.
Based on the Supreme Court ruling, the government must justify its regulation by demonstrating it is consistent with the “Nation’s historical tradition of firearm regulation,” the judge wrote.
While gun-rights advocates presented evidence about the popularity of magazines that hold more than 10 rounds, and noted they standardly come with certain variants of the Glock pistol, they didn’t produce evidence that these weapons can “only” operate with magazines that accept more than 10 rounds, Immergut wrote.
By contrast, the state’s attorney general showed that “all firearms that can accept a detachable large-capacity magazine can also accept a magazine that holds 10 or fewer rounds and function precisely as intended,” the opinion said. Further, any gun with a fixed magazine can be modified to hold 10 or fewer rounds and function as intended, the judge ruled.
The plaintiffs, therefore, failed to show that magazines that hold more than 10 rounds are “covered by the plain text of the Second Amendment,” the opinion said.
The state also provided statistics that show it’s exceedingly rare for someone, in a self-defense situation, to fire more than 10 rounds, the ruling said. And the state attorney general’s office provided evidence that high-capacity magazines are disproportionately used in mass shootings, the judge wrote.
Every mass shooting since 2004 that resulted in 14 or more deaths has involved large-capacity magazines, the opinion noted.
While she delayed the measure’s new permitting requirement to buy guns, Immergut found the permit regulation met constitutional muster.
To obtain a permit, an applicant will be required to be fingerprinted, pass a background check and complete a firearms safety-and-training course and pay an expected $65 fee. She ruled that the permit-to-purchase provision is in line with the “shall-issue” permit scheme supported by the U.S. Supreme Court’s ruling in June.
If an applicant meets the criteria for the permit, the permit agent -- which is likely to be a county sheriff’s office or local police agency -- “shall issue” the permit, Immergut wrote.
The judge appeared to discount the argument that the ban on magazines with more than 10 rounds amounted to the unlawful “taking” of gun owners’ property.
Immergut pointed out that those who already own or may inherit large-capacity magazines can keep them, under Measure 114.
And magazines with more than 10 rounds still can be kept on private property or used in shooting competition, at shooting ranges or for other recreational purposes, such as hunting, as allowed by state law.
“The language of the statute plainly does not deprive owners of their property. Such a regulation cannot be said to effect a physical taking,” the judge wrote. “Measure 114 is not retroactive: it does not render Plaintiffs’ already possessed large-capacity magazines illegal, allows Plaintiffs to retain possession of these large-capacity magazines on their property, and allows Plaintiffs to use these large-capacity magazines in limited situations.”
The judge further pointed out that sheriffs and law enforcement, under the measure, still may obtain and possess such large-capacity magazines and use them within the scope of their “official duties,” and buy specially-marked magazines that hold more than 10 rounds once Measure 114 takes effect. And gun stores and gun owners, the judge ruled, aren’t likely to lose significant business under the new regulations.
The measure has drawn four legal challenges in federal court and one in Harney County Circuit Court by gun-rights advocates and national organizations, such as Gun Owners of America. The federal court cases will proceed to arguments for a preliminary injunction.
In a statement, Lift Every Voice Oregon, the interfaith group that was behind the initiative that got Measure 114 on the November ballot, said it supported the attorney general’s request to delay the permitting regulation and thanked the attorney general for working with law enforcement to “ensure an effective” transition to the new permit-to-purchase requirement.
Kevin Starrett, executive director of the Oregon Firearms Federation, sent an email to his supporters Tuesday, alerting them of the unfavorable ruling. “This is a lengthy (and obviously disappointing) decision and we will have more information soon,” he wrote. “But for now, unless something really unexpected happens, understand that your rights will be, once again, seriously eroded starting Thursday.”
