Oregon judge rules new firearms background check requirements cannot go into effect

By Jonathan Levinson (OPB)
Jan. 3, 2023 10:56 p.m.

Ballot Measure 114, which would create stricter gun laws in Oregon, is now blocked by state courts in its entirety pending a full trial

Oregon’s Measure 114, which would have significantly tightened Oregon’s gun laws, is blocked in its entirety, after a decision Tuesday by Harney County Circuit Judge Robert Raschio.

The law, passed by voters on a razor thin margin in November, has been through several hearings, including three in Harney County. The latest, on Dec. 23, kicked off with a reminder to all present: Don’t bring your guns into the courtroom.


The case before the Harney County circuit court argued that the new voter-approved gun laws violate the state constitutional right to bear arms.

The hearing was to decide if a portion of Ballot Measure 114 requiring a completed background check for every firearm sale or transfer could go into effect even while other portions are temporarily blocked by the court.

After taking more than a week to deliberate, Raschio ruled on Tuesday that the state cannot implement the additional background check requirement.

FILE: In this screen shot from a video feed, Harney County Circuit Court Judge Robert S. Raschio presides over arguments about Measure 114 during a hearing in Burns, Ore., on Dec. 13, 2022.

FILE: In this screen shot from a video feed, Harney County Circuit Court Judge Robert S. Raschio presides over arguments about Measure 114 during a hearing in Burns, Ore., on Dec. 13, 2022.

Video screen shot / Harney County Circuit Court

The new requirements, if implemented in the future, would close a gap in federal law known as the Charleston Loophole, a provision in federal law that allows a firearms dealer to move ahead with a sale after three days even if the background check is not yet completed.

The loophole is what allowed a white man in Charleston, South Carolina, to buy a gun in 2015 before going on a racist killing spree, murdering nine people at the historically Black Mother Emanuel Church.

In arguments presented in court Dec. 23, debate focused on specifics of the ballot measure’s wording and whether or not its background check provision could legally be separated from the other two provisions of the law, an issue known as severability.

“The court declines to remove the background check provisions from the [temporary restraining order] as the provisions are intertwined with the permit-to-purchase program and the court has made no final determination on constitutionality of the program,” Raschio wrote in his order.

The measure’s rule requiring a permit to buy a gun also requires a completed background check for a transfer to take place. The firearms dealer has 48 hours to notify the state that a firearms transfer “to the permit holder was completed.” The permit to purchase program is on hold until the state creates the application and review process. Once complete, Raschio and a federal judge must approve the new system.

Lawyers for the group that brought the lawsuit, Gun Owners of America, said that the court can’t allow the background checks to go forward without the permit requirement since the measure’s language refers to a “permit holder” and not a purchaser. Therefore, attorney Tony Aiello argued, the court would have to change the language of the law to implement it and that would not be appropriate.

The state countered, citing the ballot measure’s section specifically addressing severability.

The measure says that if any “articles, sections, subsections, sentences or clauses” are blocked or found to be unconstitutional, the voters still want the remaining portions to be implemented.

Harry Wilson, representing the state, said voters explicitly asked the court to drill down and scrutinize the measure’s sentences and clauses where necessary to preserve as much of the legislation as possible.

Measure 114 makes it a crime to transfer a firearm to a person who does not have a valid permit to purchase and when a background check has not been completed.

Wilson said the court could block the permit requirement and still allow the background check requirement to take effect.

He also said the judge could temporarily pause the 48-hour notification requirement, but noted that blocking the entirety of the provision would go against the language of the measure.

“Voters clearly wanted these portions to be severable,” Wilson said.


Raschio disagreed.

“The court would be separating sentences at commas and considering the phrase ‘permit holder’ surplusage,” he wrote in his order, using a legal term for irrelevant language. “It is not surplusage.”

He said he would rule on severability only if the permit requirement is ultimately found to be unconstitutional.

Oregonians voted for the additional background check rule in November when they approved Ballot Measure 114. The measure’s provisions also ban the sale of magazines holding more than 10 rounds and require a permit to purchase a firearm. The measure was supposed to take effect Dec. 8 but Raschio has blocked the law from taking effect pending a trial.

Lawyers for Gun Owners of America submitted testimony from a man who spent nearly eight years doing background investigations for the Oregon State Police. Brian Jones said he left his job in April 2022 for many reasons.

“Among these reasons was my concern that the tone and culture of the Unit had changed dramatically during my tenure from ‘let’s process quickly and catch the bad guys’ to ‘how can we hang people’s background checks up,’” Jones wrote in his testimony.

Jones also said he spoke to hundreds of licensed firearms dealers in the state and that he believes it is rare for dealers to release a firearm before a background check is complete.

Since Measure 114 passed, gun purchases in the state have increased dramatically resulting in a corresponding increase in background checks. Facing a cumbersome backlog, several gun stores in the state have started doing exactly what Jones said is so rare.

Raschio, however, was not persuaded by the argument, saying in court that the state’s slow pace processing background checks has nothing to do with whether or not the requirement is constitutional.

“If in fact the state were to at any time … to slow walk background checks to a degree that’s demonstrable, there’s a separate distinct action,” Raschio said. " It doesn’t have anything to do with what we’re doing here today.”

Earlier this month, Raschio issued a preliminary injunction on the magazine ban, saying magazines are indistinguishable from firearms and essential to their protective power. He appeared convinced by arguments that 10 round magazines meeting Measure 114′s strict requirements are exceedingly rare and that without the ability to buy magazines, firearms become essentially useless.

“While the preamble of the ballot measure states it promotes public safety, the court finds…it does not do so in any measurable way,” Raschio wrote.

Raschio was unconvinced by the state’s argument that high capacity magazines are a common factor in mass shootings resulting in 14 or more deaths, pointing out there had only been 10 events meeting the criteria in the past 18 years.

“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,” Raschio wrote. “And even less with an offender who is using large capacity magazines.”

According to the Gun Violence Archive, a group that tracks gun violence in the U.S., there were six mass shootings in Oregon in 2022, leaving six dead and 24 injured. The group counts any shooting where four or more people are injured or killed, not including the shooter.

A review of gun policy research conducted by the RAND Corporation, a nonpartisan research firm, found no clear evidence permit-to-purchase laws on their own reduce gun violence. But that same review found states with stricter gun laws have lower homicide and suicide rates.

And new research shows high-capacity magazine bans, like the one Raschio blocked, do in fact reduce mass shootings.

While the law is held up in state court, federal courts have been more receptive to the measure. In November, a federal judge temporarily blocked the permit requirement finding the state did not yet have systems in place to process applications. She ruled the other portions of the law could take effect as scheduled.

“Plaintiffs have failed to demonstrate that they will suffer immediate and irreparable harm if this Court does not block Measure 114 from taking effect on December 8, 2022,” U.S. District Court Judge Karin Immergut wrote, adding the group who challenged the law did not appear likely to succeed in their challenge.

Raschio’s order means Measure 114 is blocked from taking effect in its entirety until he rules on the constitutionality of each individual provision after a full trial. The start date for that trial has not yet been scheduled.

The Oregon Department of Justice declined to say if it will appeal any of Raschio’s rulings.