Gun safety measure to be considered by Oregon Senate

Oregon voters narrowly passed Ballot Measure 114 which, among many other provisions, would require a background check and permit before people are sold firearms. But that measure is now tied up in a court challenge with no clear timetable for implementation. Meanwhile, Democratic lawmakers in the Oregon Legislature have advanced a gun safety bill that would make a few different legal changes. HB 2005 passed the House and is scheduled to be heard by the Senate. Republican senators have been deliberately absent from the chamber in recent weeks, slowing the progress on considering this and other legislation.

We invited senators from both major parties to join us to discuss the gun safety proposal. We hear from Democratic Sen. Floyd Prozanski from Eugene and Springfield and Republican Sen. David Brock Smith from Port Orford.

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

Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. Oregon voters narrowly passed Ballot Measure 114 this past November. Among many other provisions, it would require a background check and permit before people could buy firearms. That measure is now tied up in a court challenge with no clear timetable for implementation. Meanwhile, Democratic lawmakers in the Oregon legislature have put forward a new gun safety bill that would make a few additional legal changes to gun sales and ownership. HB 2005 passed the house and is scheduled to be heard by the Senate. It’s one of the bills that has stalled there because of the Republican walkout.

Joining me now to talk about these proposed changes are one of the sponsors, Democratic Senator Floyd Prozanski from Springfield and Eugene, and one of the opponents of the bill. Republican Senator David Brock Smith from Southwest Oregon. Gentlemen, it’s good to have both of you on the show.

Sen. Floyd Prozanski: Thank you very much, Dave.

Sen. David Brock Smith: Thank you Dave.

Miller: Senator Prozanksi first, this bill used to be three separate bills I understand, now they’re grouped together. I think it makes sense to take the main points separately because there really are a lot of different things that this bill would do.

So, let’s start with what are called undetectable firearms. What are they?

Prozanski So that’s the original House Bill 2005, and it’s been commonly called the Ghost Gun Bill. And basically, those are guns that are non-detectable, meaning that they could be made out of plastic, actually printed in a 3d printer, or they’re non-traceable, meaning they don’t have serial numbers on the firearm itself.

Miller: And those are two different things. A plastic gun or some kind of polymer, printed or not, which couldn’t be detected by a metal detector, that’s separate but perhaps related to a gun that doesn’t have any serial numbers. Why are each of these a problem?

Prozanski: What we’re attempting to do as a society is ensure individuals that should have been denied access to guns through felony convictions or been determined to be suffering from mental illness through a court adjudication, from those types of individuals getting access to weapons where they’re prohibited. So ghost guns, the ones that are non-detectable, are ones that can actually pass through metal detectors, and those are guns that are now starting to be emerging in the area of criminal activity. And the same thing with non traceable guns. So these are measures that will actually hold both those style or type of guns, non-detectable or non-traceable, to a standard to ensure that they are prohibited by law, and/or that they actually receive a serial number to be in compliance so they can in fact be traced.

Miller: David Brock Smith, do you share Floyd Prozanski’s concerns about either of these categories of firearms, undetectable ones or untraceable ones?

Smith: Not specifically, no, Dave. The technology that the majority party here is trying to limit is few and far between. Plus the section that we’re talking about, it really creates a prosecutorial quagmire with regards to the ghost gun penalties. Whenever we’re looking at essentially a class B felony, and how you move forward.

Miller: Those are two different issues here, I want to start with the first one. You’re saying that that technology is not common enough for you to worry about?

Smith: Well, the technology of course exists. Forgive me if I misspoke there, Dave. The idea that we’re going to set up a situation where we need the serial numbers recorded, having it move forward under this section does create some problematic prosecutorial issues in the language of the bill.

Miller: What do you mean?

Smith: Under section three of the bill, if there’s going to be a penalty, then it should be a uniform class A misdemeanor for one example.

Miller: Because you’re saying it’s not a serious enough offense to warrant being a felony?

Smith: No, I’m not saying it’s not a serious enough offense. Bad people with guns are individuals that don’t follow the laws anyway. If [HB] 2005 does make it into a law, individuals utilize this technology will comply with the law. But as we continue to talk about this piece of legislation, the entire bill will more than likely be thrown out because of its unconstitutionality.

Miller: I wanna just stick with these first provisions first so we have some clarity about both the reasons in favor of them and the arguments again. I should also say that there has been a federal ban on plastic guns in effect since 1988 signed into law by President Ronald Reagan, and extended since then, it’s actually set to expire now at the end of this year, the most recent extension was approved by Congress in 2013. So David Brock Smith, do you want that federal law to expire as well? Do you want people to be able to own plastic guns that cannot be detected by metal detectors?

Smith: Of course not. That’s not what I’m saying.

Miller: I’m not totally clear what you are saying with respect to plastic guns.

Smith: What I’m saying is that the bill needs to be, in this section, needs to be streamlined, and the language within the bill is not quite right, is all I’m saying, Dave.

Miller: What would you support in terms of an Oregon law with respect to plastic guns, undetectable guns?

Smith: The section on undetectable guns is not really my priority in [HB] 2005. It is not something that I’m highly opposed to with regards to [HB] 2005.

Miller: Okay. Floyd Prozanski, just, just going back to you briefly on this question, and this is just one piece of the legislation, we’ll move on in a second-

Smith: Dave, we have 10 minutes left in this interview.

Miller: We do, and I’m gonna try to get to as much as we can, but I just want clarity on this for a second. Senator Prozanski, are you assuming that Congress is not going to extend the current ban on plastic guns?

Prozanski: I accept that they more than likely will. What this bill actually does, and where David Rock Smith is wrong, is that it definitely has a tier process of holding people accountable. The first possession and conviction is going to be a class A misdemeanor. If you do it again, or a subsequent time after a second time, it bumps it up to a class B felony. And the reason we’re doing this is because we do know in fact that technology has gotten better over the last eight to 10 years of making polymer guns that don’t blow up on people, and they’re actually being utilized. So this is one step that we can have at the state level to ensure that Oregonians are safe from individuals having access, without consequences, for producing, manufacturing, and possessing guns that are not detectable through metal detectors.

Miller: I wanna move on to some of the other provisions of this bill. One of them is that it would prevent people younger than 21 from possessing firearms except for shotguns and some rifles. Why? What’s different in terms of gun ownership between say an 18 or 19 or 20 year old, and a 21 year old?

Prozanski: Well, what we know is that the data clearly shows that the number one cause of deaths in children are guns-related, age 1-18. What we also know is that the age of 18-20 year olds are three times more likely, in the sense of their having activities that are actually in mass shootings and actually killing. And so what we’re trying to do here is to limit the type of guns that are accessible to youth between 18, 19 and 20. They still have the ability to have certain type of guns that, under the Bruen decision, the US Supreme Court decision from last year, it basically stated that certain types of weapons should in fact be able to be available to individuals. So we are not denying 18, 19 or 20 year olds to have that experience of owning and possessing and using firearms. They just won’t have access to certain ones, such as semi-automatics.

And this is following the lead that the federal government already requires a person to have a handgun to be 21. We’re just saying in the state of Oregon to have a semi-automatic, which is basically the root of an AR-15 or other military style assault weapons that have been used in mass killings, are not going to be accessible to kids, 18, 19 and 20 year olds.

Miller: Well, young adults 18, 19 and 20, not kids, technically.

Prozanski: Young adults.

Miller: David Rock Smith, what’s your take on this provision?

Smith: This provision, my take, is unconstitutional. We just had a Virginia judge, US district court Judge Robert Payne, struck down this provision in Virginia, stating if the court were to exclude 18 to 20 year olds from the Second Amendment protection, it would impose limitations on the second amendment that do not exist in other constitutional guarantees. And because the statutes and the regulations in question are not consistent with our nation’s history and positions, they therefore cannot stand. This is a situation where this is part of this piece of legislation that is limiting the constitutional rights of adults at 18. And therefore, that is why the House Republicans, when this bill passed, pledged $25,000 towards the litigation that will follow moving forward.

And it isn’t just limiting, as my colleague said, access to semiautomatic weapons. It’s limiting access to others as well. And so the constitutionality of this piece of legislation in [HB] 2005, in regards to this section, in reducing the rights of adults, is wrong. And the bill shouldn’t be moving forward because of it, knowing that there has been other cases that have been struck down.

Miller: I want to turn to another provision of this. The bill would give local governments the authority to prevent people from carrying concealed firearms in their public buildings or the surrounding grounds of their public buildings. Floyd Prozanski, what’s the idea behind this provision?

Prozanski: This is actually an expansion of what we did in 2021, we expanded out the local determination for schools, school boards being able to determine whether or not they wanted to allow individuals who have a concealed weapons permit license in the state to carry concealed on their property or in their buildings. And what we’re doing here is we’re just expanding it out for local control to local government entities, such as cities and counties and other governmental entities.

This is based on, as I said, what we’ve already had provided for in 2021, and it’s really going back to a decision that we made in the legislature in 1995 of taking away local control. And we believe that at this point, it’s time for allowing cities, counties, and the voters in those areas to determine what is best for their communities as to allowing for or not allowing for individuals to carry concealed in public buildings, and on their grounds adjacent to it.

Miller: David Brock Smith, your take?

Smith: Thanks, Dave. This is hugely problematic to law abiding citizens in the state, especially concealed handgun license holders. You have a situation where it is going to expand the opportunity for any local government, any water district, any jurisdiction that falls under the definition, to basically create gun free zones within their property, their jurisdiction. So I’ll use an example, as I did in the public safety subcommittee when we were discussing this bill, that in any given community you could have a library that decides that they want to move forward with these provisions. And the situation is they’re imposing it on their adjacent property. In my community, that library is right next to a grocery store. And so an individual could be a law abiding concealed handgun license holder, could be walking by, and therefore violating the law unknowingly.

There’s language in the bill that you have to put up signage, but there’s a situation where now you’re creating this patchwork, possibly in every community in this state, where anyone traveling, we travel quite a bit as you can imagine as legislators, could be in violation of the law unknowingly. And this is, like I said, hugely problematic for law abiding citizens.

Miller: Floyd Prozanski, let me run that by you. Let’s stick with David Rock Smith’s example, somebody who has a concealed carry license on their way to a supermarket, walking on the sidewalk past a library that’s passed a ban on concealed carry. What would happen?

Prozanski: The reality, Dave, is that they’re gonna be able to walk right on by. They’re gonna be on a public sidewalk, and it’s gonna be posted for anyone that’s in the library. The example that David Rock Smith has used is not quite accurate in the sense that it is a decision that’s not made by the library, but it’s whoever is a governmental entity over that library. An individual walking by on a sidewalk is not going to be in violation. Also, an individual that was going actually to the library could in fact seal their gun in their trunk separate from the ammunition in a lockbox or other mechanism and be in compliance with the law.

Smith: Senator, you don’t understand how the library works. The library actually owns the sidewalk because the library owns the property the sidewalk is on.

Prozanski: And I do understand that. They do not own the sidewalk, it’s a public right of way of the government entity, it’s not owned by the library.

Miller: I want to move on because we shouldn’t spend too much time talking about the ownership of sidewalks at this moment.

Floyd Prozanski, I’m curious how you think about the enforcement of this. After voters passed Measure 114, and after other gun laws were put in effect either by lawmakers or by voters, there were big questions from many local sheriffs or police chiefs around the state who called into question the constitutionality of various laws, including 114, and said this is either not gonna be one of my priorities or I’m not going to enforce this. How do you think about the potential enforcement at this point of any gun laws that you might pass?

Prozanski: It’s any type of law that’s passed by the legislature, it’s gonna be discretionary at the point of where it’s going to be enforced. Clearly, you have law enforcement personnel that need to make decisions as to their resources they have and how they’re going to apply and utilize them. They may in one community decide that this is not as high a priority as in another community. That is one of those things that we call discretion, and the officers and the agency that they work for are going to set their policies as to how they are or aren’t going to be enforcing state law. But the reality is, that is the executive branch that has the duty to actually carry out and enforce laws that are passed by the legislative branch. And then it’s the courts that will decide whether or not they’re constitutional or not.

Miller: David Brock Smith briefly, how do you think local law enforcement would respond if this bill were to become a law?

Smith: It depends on the local law enforcement. I can tell you that my local law enforcement in some of my communities of Southwest Oregon are very different than that of Portland. But I just wanna finish out here by really being very clear, that it’s up to that local law enforcement, and as the senator said giving them the discretion, that discretionary power that they will have will be enforced on citizens that are law abiding, and depending on how and what they do and who moves forward with setting up this jurisdiction.

I personally believe that allowing local jurisdictions, which was one of the reasons why the law was passed as the senator said in 1995 not allowing those local jurisdictions, I personally believe that creating and advertising new gun free zones is not beneficial. In fact, even FBI statistics show upwards of 16.5% of active shooter situations are stopped by CHL holders and good guys with guns. And so you’re in a situation where you’re creating more opportunities for individuals that are not law-abiding citizens that don’t follow the laws in the first place, and that are not going to adhere to anything within [HB] 2005 or Measure 114.

Miller: David Brock Smith and Floyd Prozanski, we are out of time. Thank you for joining us.

That is Republican Senator David Brock Smith from Southwest Oregon and Democrat Senator Floyd Prozanski from Springfield and Eugene.

Contact “Think Out Loud®”

If you’d like to comment on any of the topics in this show, or suggest a topic of your own, please get in touch with us on Facebook, send an email to thinkoutloud@opb.org, or you can leave a voicemail for us at 503-293-1983. The call-in phone number during the noon hour is 888-665-5865.