Think Out Loud

Oregon gun safety measure on hold for now

By Allison Frost (OPB)
Dec. 7, 2022 6:40 p.m. Updated: Dec. 7, 2022 8:45 p.m.

Broadcast: Wednesday, Dec. 7

FILE - In this Feb. 19, 2021, file photo, a man enters a gun shop in Salem, Ore.

FILE - In this Feb. 19, 2021, file photo, a man enters a gun shop in Salem, Ore.

Andrew Selsky / AP

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Oregonians passed a Measure 114 in November. It would ban the manufacture, purchase or sale of high capacity magazines capable of holding more than 10 rounds of ammunition. It would also require people to take a safety course and pass a background check to get a permit allowing them to purchase a firearm. But that was just the beginning of a story that may well not be complete for years, as as the law is challenged in state and federal courts and the Oregon Department of Justice defends it. On Wednesday a federal court allowed the law to move forward as written, with a 30-day hold on the permitting process that the attorney general had asked for to get the system ready. On the same day a state court in Harney county put the law on hold. Now the DOJ is asking the Oregon Supreme Court to lift that hold and let the law go into effect Thursday. Michael Kron, special counsel to the state attorney general, joins us to give us the latest.


The following transcript was created by a computer and edited by a volunteer:

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Oregon voters narrowly approved Measure 114 in the most recent election. It will institute new restrictions on gun sales and gun ownership in Oregon. The law was supposed to go into effect at midnight tonight, but there was a whirlwind of legal activity yesterday that’s put the timing and the implementation of the law into question. First, a federal judge ruled that most of the law can take effect starting tomorrow. That was cheered by supporters of Measure 114. Then, right on its heels came a separate ruling from a state judge in Harney County. He said there are enough serious constitutional questions at the state level that the law should be put on hold until those questions are settled.

Joining us now to talk about both of these cases and the future of Measure 114 is Michael Kron. He is special counsel to the Oregon Attorney General, which is one of the parties at the heart of these suits. Welcome to Think Out Loud.

Michael Kron: Thank you, Dave, it’s great to be here.

Miller: Can you remind us first what Measure 114 will do?

Kron: Absolutely. Measure 114 has three components, and you alluded to them already. The first thing it requires is a permit in order to purchase firearms in Oregon. You get these from your local law enforcement, which would be the sheriff or your local police. It basically requires three things in order to get a permit: you have to pass a fingerprint background check, you have to complete gun safety training, and the third thing is that you can’t present reasonable grounds for your local law enforcement official to conclude that you are a danger to yourself or to others. There’s a fee for the permit, it’s capped at $65, and permits last for five years.

Miller: Okay, that’s the permit to purchase aspect of this. What about new restrictions on what kinds of guns or components people can own or have?

Kron: So the measure places restrictions on any firearm magazine that holds more than 10 bullets. If you already own a magazine that holds more than 10 bullets, you are permitted to keep it, but the use of that magazine is restricted, and those magazines can no longer be sold or transferred, although they can be inherited. Your magazines that hold more than 10 bullets, if you want to use your firearm in less restricted ways, need to be swapped out for smaller ones, or permanently modified so that they don’t hold more than 10 bullets.

Miller: And finally, there is a provision about the use of background checks. What would that mean?

Kron: The last thing the measure does is close what is often called the “Charleston Loophole.” Basically, when you’re buying a firearm now, you have to have a background check conducted. But the law says that if that background check is not completed after three days the transaction can proceed regardless. Measure 114 changes this, and requires background checks to be completed before firearm transfers can take place.

Miller: And all of this was supposed to be in place as of midnight tonight?

Kron: That is correct.

Miller: Why did Oregon Attorney General Ellen Rosenblum ask Federal Judge Immergut to delay for 30 days the implementation specifically of the permit to purchase regulation?

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Kron: Well, I mentioned that one of the requirements for the permits to purchase is a gun safety training requirement. And that gun safety training requirement includes two things. It includes a specific curriculum that can be done online, but it also includes a live demonstration of the permit applicant’s ability to handle, load, lock, and safely use a firearm. And what we learned from local law enforcement partners, the people that are responsible for accepting the permit applications and ultimately issuing the permits, is that that component in particular was simply not going to be ready to go. So the Oregon State Sheriff’s Association and the Oregon Association of Chiefs of Police both submitted evidence in the court explaining that that component of the training does not exist. And they also cited some practical difficulties that they expect to encounter in implementing the program.

Frankly, it appeared that it would be a situation where, if permits were required, they would also be unavailable. And that didn’t seem like a circumstance that was particularly fair, or would be particularly defensible in the federal court.

Miller: How much faith do you have that all of those issues can be sorted out in just 30 days?

Kron: I think we are optimistic that they can be sorted out in 30 days. We’ve certainly reached out to the other side, and the court has instructed us to confer with the plaintiffs in these cases on what exactly the order should do, how it should be changed. And that may well end up being extended. There was a statement in the sheriff’s association declaration, that I referred to earlier, that they expected they could be ready to go no earlier than 30 days out. So that was, I think, part of the reason the judge came up with that number.

Miller: The judge did agree with what the attorney general asked for. Can you give us just briefly the broader summary of what the federal judge ruled yesterday morning?

Kron: The federal judge yesterday morning was basically answering two questions: whether the Second Amendment prohibited the magazine restrictions, and whether the Second Amendment prohibited the permit requirement. And she concluded that both of those were permissible under the Second Amendment, at least based on the record so far. And I want to be clear, this is a preliminary order. The request was for a temporary restraining order, is what it’s called. So this is in advance of trial and a more final decision. But she looked at the record in front of her, and she agreed with the state that these are the kind of gun regulations that remain constitutional under the Second Amendment.

Miller: So just to be clear, this is the federal case, the first ruling that came down yesterday. And under Immergut’s ruling, the rest of Measure 114, including the ban on the sale and transfer of large capacity magazines and the background check requirements for all gun sales and transfers, those were still going to go forward. Then came, right on its heels, a ruling by Harney County Circuit Court judge Robert Raschio. This was in a case brought by two Harney County gun owners and a Virginia nonprofit. Importantly, this case is focused not on the US Constitution, not on the Second Amendment, but on the Oregon Constitution. Can you explain what Raschio’s ruling means, currently, as it stands right now, in terms of timing?

Kron: As it stands right now, the Harney County court injunction means that no part of Measure 114 will come into effect tomorrow. The order also schedules a more in-depth hearing on these Oregon constitutional issues for next Tuesday. So as things currently stand, the earliest that the measure would potentially come into effect under this order is next Tuesday, where the state has an opportunity to appear again in Harney County court, produce evidence, have testimony, and potentially get a ruling in the case there.

Miller: I want to give folks a sense for part of what Raschio said. He said this: “With implementation,” meaning with this law going into effect, “there are serious harms to the public interest as well, which could include individuals being arrested and prosecuted for Class A misdemeanors under what could be found to be an unconstitutional statutory scheme. And that potential could happen if ballot Measure 114 is allowed to go into effect without significant judicial scrutiny. And certainly no one would argue that individual liberty is not a cornerstone of our country. First, the people, then the state.”

If I understand his basic reasoning here in plain English, it’s that this is a serious enough change to current state law, with enough constitutional questions at the state level, that there should be a review of this law before it can take effect. What’s wrong, in your mind and in the Attorney General’s mind, with that reasoning?

Kron: We have actually asked the Supreme Court at this point to review the ruling. I think the idea that any time the legislature passes a new criminal law, that the court should enjoin that law until there has been an opportunity to decide whether it’s constitutional or not is obviously not the way that criminal law or the legislative process generally would work. And in this case, we believe that the Supreme Court, if it agrees to accept our request for review, will be able to look at this and conclude that, in fact, the people clearly have the power to pass these laws at the initiative.

Miller: We are talking right now, a little before 12:20 on Wednesday. What is the potential timing for a response from the Oregon Supreme Court?

Kron: Well, that is really something that is beyond our control at this point. The Supreme Court certainly, if it feels this is important, will respond as quickly as they can. I would say I don’t think it’s impossible that we will hear from them today. But I also understand that they received this request from us this morning. So I think it’s difficult to be certain.

Miller: Michael Kron, thanks very much for joining us today.

Kron: Thank you.

Miller: Michael Kron is special counsel to the Oregon Attorney General.


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