Judge Blocks Ore. Measure 114's Ban on Large-Capacity Magazine Sales

Dec. 16, 2022
In granting a temporary injunction, an Oregon judge found that magazines are an integral part of guns and limiting their capacity would impede a person’s right to own a gun for self-defense.

A state judge in southeastern Oregon has blocked the state from implementing Measure 114′s ban on the sale of magazines carrying more than 10 rounds, setting up what’s expected to be a lengthy battle in court.

In a victory for gun rights advocates, Harney County Circuit Judge Robert S. Raschio on Thursday granted a preliminary injunction against the measure’s restrictions on the sale, manufacture and use of large-capacity magazines.

He found that magazines are an integral part of guns and limiting their capacity would impede a person’s right to own a gun for self-defense. He also disputed the state’s argument that restricting large-capacity magazines will reduce mass shootings.

In a 25-page opinion, he ruled that a limit on magazine capacity would “dramatically change the rules on law abiding citizens,” noting that the “vast majority of gun owners are responsible, careful citizens with a great deal of respect and care for their firearms and only use them for law purposes including self-defense.”

He called the state’s argument that such bans on large-capacity magazines promote public safety “mere speculation.”

“The court finds that there is less than a 1 in 1,000,000 chance of a person being a fatality in a mass shooting in Oregon, and even less with an offender who is using large capacity magazines,” Raschio wrote. “The court cannot sustain a restraint on a constitutional right on mere speculation that the restriction could promote public safety.”

The case was brought by Virginia-based Gun Owners of America and two Harney County gun owners.

The state attorney general’s office is expected to appeal.

The measure, which passed by 50.7% of votes, calls for a permit to buy a gun and a ban on the sale, transfer and manufacture of magazines holding more than 10 rounds. It also requires a background check to be completed before any sale or transfer of a gun can occur. Under federal law, gun sellers can go ahead with a sale if a background check isn’t completed within three business days.

The preliminary injunction barring the regulation of large-capacity magazines essentially extends the judge’s earlier 10-day temporary restraining order that halted the provision from becoming law when the measure was set to take effect on Dec. 8. The injunction will remain in effect until a full trial is held, unless a higher court intercedes.

Raschio earlier this week issued a separate temporary restraining order that remains in effect blocking other key regulations in the voter-approved measure: the requirement that a permit be obtained to buy a gun and that a criminal background check be completed before a gun can be sold.

He has planned a hearing next week at the request of the state, which is challenging the emergency order restricting completed background checks.

During arguments before Raschio on Tuesday, attorney Tony Aiello Jr., representing Gun Owners of America, argued that the measure’s gun-control regulations violate Oregon Constitution’s Article 1, Section 27 that says, “The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]”

He argued that magazines that hold more than 10 rounds are standard for guns manufactured today. Those guns, he said, are “essentially the same firearm, just modified by design and function” as some of the nation’s earliest guns. He called as a witness Burns gun store owner Benny Callaway, owner of the Spent Cartridge gun shop in Bend, who testified he’s had trouble ordering magazines that hold a maximum of 10 rounds since Measure 114 passed.

Raschio was swayed, largely quoting from the Gun Owners of America’s court filings and witnesses.

The judge concluded that firearms with a magazine capacity of more than 10 rounds existed when the Oregon Constitution was adopted in 1859. The article pronouncing a right to bear arms in the state constitution was approved that year without any debate, Raschio wrote, leading him to infer by the “silent record” there were no concerns raised about the capacity of gun magazines at that time.

“The precedent in Oregon shows no historical statutory bans on the size of magazines or on the types of firearms until 1933. All preceding restrictions were on use, e.g. prohibitions on riding horses through town terrifying neighbors with firearms,” the judge wrote.

While the judge acknowledged that “our society has become exacerbated by the relentless news about mass shootings in the country and the slaughter of innocents,” he found stronger evidence provided by gun rights advocates that the measure’s magazine restrictions won’t promote the public safety that its proponents seek.

The ban on the sale and restricted use of magazines holding more than 10 rounds “would have an immediate impact on the liberty interests of 1 in 5 Oregonians and make it harder for the weaker individuals in our society to defend themselves against attackers,” Raschio wrote.

Senior Assistant Attorney General Brian Simmonds Marshall had argued Tuesday that the state constitution established a right to bear arms, but it’s “not an absolute right” and that state case law has found the right to bear arms “does not mean that all individuals have an unrestricted right to carry or use personal weapons in all circumstances.”

James Yurgealitis, a retired agent of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives who testified for the state, said multiple gun manufacturers — including Ruger, Smith & Wesson and Glock — make guns with magazines that hold a maximum of 10 rounds, noting that 12 other states and the District of Columbia have had similar magazine capacity restrictions.

Raschio’s conclusions were dramatically different than the Dec. 6 findings by a federal judge on the Oregon gun control measure. U.S. District Judge Karin J. Immergut allowed all provisions of Measure 114 to go into effect and delayed only the permit-to-purchase a gun provision until the state has a process in place to support it.

“The burden imposed by Measure 114 on the core Second Amendment right of self-defense is minimal,” Immergut ruled. “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,” she wrote.

Raschio said he can’t rely on federal rulings, as the case before him asked him to consider whether Measure 114 violates the state constitution, not the Second Amendment right to bear arms.

The Harney County judge next will hold a hearing at 10 a.m. on Dec. 23 to allow the attorney general’s office to challenge his temporary order that blocks the measure’s requirement that background checks be completed before a gun is sold. Marshall had argued that the gun owners didn’t challenge that element of Measure 114.

Raschio said he will maintain the temporary restraining order on the permitting regulation until he gets word from the state that a process is in place. Once that occurs, the judge plans to hold a hearing on whether to extend the temporary order and issue a preliminary injunction against the permit-to-purchase regulation.

The Oregon Firearms Federation’s executive director Kevin Starrett sent an email to its members and supporters, applauding the ruling. “For now, your standard capacity magazines are safe,” he wrote.

Adam Smith, spokesperson for the Oregon Alliance for Gun Safety, said he hopes a higher court will overturn Raschio’s decision and restore the voter-approved “safety protections.”

“Every day that someone can walk into an Oregon gun shop and purchase large capacity magazines designed to kill the maximum number of people quickly is a day that is less safe for Oregonians gathering anywhere,” he said in a statement.

The Rev. Mark Knutson, a chief petitioner for Measure 114, said, “We are disappointed in the ruling, but we trust in the process to move forward for the full implementation of Measure 114. I trust we’ll get there, one of these days.”


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