Copyright The Oregonian
Three years after voters narrowly approved gun control Measure 114, the Oregon Supreme Court on Thursday will hear arguments on whether its regulations are constitutional under state law. A lawyer for two Harney County gun owners who challenged the regulations will ask the court to overturn an appellate court’s ruling that found the measure constitutional. The measure limits gun magazine capacity to 10 or fewer rounds, requires a permit to buy a gun and closes what’s called the Charleston Loophole, which requires the completion, not just initiation, of a background check before someone can transfer a firearm. Attorney Tony Aiello Jr., who represents the gun owners, argues that Measure 114 “degrades” Oregonian’s state constitutional right to bear arms by turning gun ownership “into a privilege to be denied,” by the state government. Lawyers for the state of Oregon will urge the state’s high court to uphold the Oregon Court of Appeals’ March ruling. They argue that the state Constitution’s Article 1, sec. 27, which established a right to bear arms, is not absolute and the constitution permits “reasonable regulations” to promote public safety. Voters narrowly approved the measure in November 2022 but the regulations have never gone into effect, blocked by a Harney County judge’s ruling that they violated the state constitution. The two Harney County gun owners had filed suit against the state in Harney County Circuit Court the week before the measure was set to take effect. Harney County Circuit Court Judge Robert S. Raschio found the measure violated the state constitution, but the Oregon Court of Appeals overturned his ruling last March. The appeals court found that a qualified person can still acquire a gun for self-defense based on the language of Measure 114, and thus the measure meets the Oregon Constitution’s right-to-bear arms provision. The court evaluated whether the people of Oregon enacted a “reasonable regulation” governing the possession and use of guns to promote public safety without “unduly frustrating” the right to armed self-defense. In doing so, the appeals court largely discarded the “findings of fact” that the Harney County judge made and focused on the text of the measure. Aiello argues that the measure’s restriction on gun magazines prohibits the “vast majority of firearm magazines” and the use of more than 10-round magazines for self-defense. The permit to buy a gun would impose too much of a delay and expense for Oregonians to purchase firearms, he said in court papers. “BM114 unduly frustrates, burdens, and infringes upon the right to bear arms by banning essential firearms and firearm parts, imposing unjustifiable delays and expenses, and subjecting Oregonians to onerous requirements without adequate procedural protections,” he wrote in a brief. Aiello argued that only two types of laws don’t “offend” Oregonian’s right to bear arms — laws that restrain the dangerous use or possession of guns and laws that exclude possession of guns by convicted felons or domestic violence offenders. Measure 114 “neither is — nor was drafted to be — either type of law,” he wrote in court documents, calling it “facially unconstitutional.” Lawyers for the state counter that large-capacity magazines are not protected “arms,” and were not commonly used for self-defense in 1859, when the state constitution took effect. “Oregonians remain free to purchase and use magazines with 10 or fewer rounds; permit holders can purchase any legal firearm; and any firearm transfer may proceed once a background check clears,” Oregon Assistant Attorney General Robert A. Koch wrote in the state’s brief. State lawmakers earlier this year attempted to pass a bill that would set out how the measure would be implemented but it never got out of the Joint Ways and Means Committee. Oregon State Police had estimated it would cost the agency $15 million to put the regulations into practice. The state police would have to complete criminal background checks before guns are sold or transferred to a permit holder. The agency has planned to create a new unit that processes background checks for the permit program and set up a new database to track applications for permits and those granted or denied. The agency went to lawmakers last spring asking for more staff and fingerprint technicians to handle the volume of work. It received about $14 million, said Capt, Kyle Kennedy, state police spokesperson. But state police are not setting up the new unit “until we have a good implementation date,” Kennedy said. “We don’t want to burn through the funds or have a unit established with no work to do.” Should the state Supreme Court affirm the appeals court ruling, “we are confident funding will be available for implementing the life-saving measures of Measure 114,” said Liz McKanna, legislative director for the grassroots group Lift Every Voice Oregon that worked to gather signatures to put the measure on the ballot. Groups that submitted friend–of-the-court briefs in support of the measure include the Lift Every Voice Oregon, Ceasefire Oregon, the Albina Ministerial Alliance, Portland Metro Chamber, the Brady Center to Prevent Gun Violence, Giffords Law Center to Prevent Gun Violence and the Alliance for a Safe Oregon. While Portland homicides have decreased this year, the Portland Metro Chamber wrote that the 512 shootings in the city in 2024 represents twice as many as the 233 shootings in 2019, the year before the pandemic. The chamber believes that the firearm safety training that prospective gun purchasers must take before obtaining a permit to buy a firearm and the required completion of a background check before a gun can be sold will help “keep guns out of the wrong hands,” according to its attorney Elizabeth Savage. Organizations that submitted briefs opposed to the measure include the National Shooting Sports Foundation and the Eastern Oregon Counties Association which represents 16 eastern and central Oregon counties. The National Shooting Sports Foundation, which promotes hunting and shooting sports, argued that the measure creates a “byzantine permitting regime that purposefully frustrates law-abiding citizens’ ability to keep and bear arms,” and is not consistent with “this Nation’s historical tradition of firearm regulation,” according to its lawyer Daniel J. Nichols. The eastern Oregon counties are concerned that there’s not sufficient staff in their communities to handle the permit application process or required firearms training courses. Association attorney Dominic M. Carollo also argued the measure would create an unreasonable delay to buy a gun as a result of existing backlogs in state police background checks.
