Oregon gun measure faces legal challenges

Oregonians passed 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 the law never went into effect due to legal challenges at both the state and federal level. The Department of Justice is preparing to defend Measure 114 in federal court in June, and in state court in September. 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. Oregonians passed Measure 114 in November. It would ban the manufacturer, purchase, or sale of 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 firearms. Before the law went into effect though, it ran into a flurry of legal challenges at the state and federal levels. The federal challenge will be heard next week. We reached out to a lawyer for one of the groups that wants to overturn the law. He declined to join us today, citing the pending case. We do hope to talk to him at some point.

Joining me now is Michael Kron. He is special counsel to the State Attorney General, the office that’s defending this voter passed law. It’s good to have you on the show.

Michael Kron: Thank you, Dave. It’s good to be here.

Miller: I had a couple sentence version of Measure 114. Can you just remind us more fully what it does?

Kron: I think you actually did cover it pretty well. There are three primary things that the law accomplishes. The first is to require permits for people who are purchasing firearms. Those permits are issued by local law enforcement and involve a background check conducted by the state police. They cost a limited amount of money, and they require a firearm safety course. And then 30 days after your application, if you haven’t heard back from your application, they provide you with the right to go to court to get an answer.

The second thing the measure does, as you indicated, is that it limits the capacity of magazines for firearms. If you have a magazine currently that holds more than 10 rounds, you can keep it. But the ways in which you can use it are limited, unless you permanently alter it so that it holds 10 rounds or less.

And then finally, it closes what is known as the Charleston loophole. The Charleston loophole is a law that allows firearm transactions to proceed without a completed background check if the background check has been requested by the firearm dealer, but has taken more than three days to complete. So this requires a completed background check.

Miller: As I mentioned, there are federal and state suits that are pending. The state one isn’t until September, but the federal one, which is a consolidation of four separate suits, that starts next week. I want to focus on that one because it’s happening so soon. The plaintiffs there raised six different constitutional challenges. The first and longest is that Measure 114′s permitting provisions violate the Second Amendment, and they begin their arguments by pointing to the Supreme Court’s 2022 Bruen case, where justices found that a New York State law was unconstitutional. That law required people to show a proper cause, or some kind of special need, in order to get a license to carry a concealed pistol. What’s your contention, in terms of the relevance of this Bruen decision? The plaintiffs talk about that a lot.

Kron: So the state’s argument on that point is that the Bruen decision specifically allows for permitting regimes that are “shall issue” permitting regimes, meaning that the person who’s administering the permitting process is required to issue permits to people who meet the qualifications, which are fairly minimal. There’s a specific footnote in Bruen which identifies several states “shall issue” permitting regimes, and says those are acceptable, including actually Oregon’s concealed handgun license regime, which has many of the same features that the Measure 114 includes.

Miller: Plaintiffs say that while six states have ever had a permit to purchase regime for any substantial period of time, all of those came in the 20th century, which is, and this is a quote from them, “too little and too late to provide insight into the meaning of a much older constitutional provision.” What precedent are you relying on from other states? And how do you deal with this question of a precedent that’s too recent?

Kron: The state is making a number of arguments in response to that contention. One is simply that there’s the legal argument, that there’s really no textual difference in the Second Amendment between the right to keep arms and the right to bear arms. And nothing in Bruen specifically talks about such a difference either. In terms of facts, we are both pointing to some early regulations of firearms, including tax requirements and census requirements, so that states could be aware of who owned guns and how many existed.

But we’re also pointing out that the Supreme Court in Bruen was very careful to say that its test was not creating a regulatory straitjacket for states. The Bruen opinion says that if there are unprecedented societal concerns, or extreme technological changes, that the kinds of regulations that will suffice to show a tradition of regulating arms in this country needs to be looked at sort of as a question of analogies, rather than an exact match.

Miller: And what are the extremes that you’re talking about there? And what are the technological changes?

Kron: Sorry, I’m conflating two arguments now. We are really talking about that more in the context of the large capacity magazines.

Miller: Well, it’s an understandable confusion because a lot of these arguments blend together,

Kron: They overlap.

So the permitting requirement, our primary arguments are that the ones that I alluded to already, that this is something Bruen specifically says is okay, that they don’t explain why permits to purchase are different than permits to carry. And that in any event, there are in fact historical analogs to this kind of regulation.

Miller: I do want to turn to extreme societal circumstances that are also one of your arguments for why this law should be allowed and should pass constitutional muster. What is it?

Kron: In the context of the large capacity magazine restrictions, the state is making two arguments. One, that the prevalence of mass shootings by single actors is an unprecedented societal problem, something that was not around when the constitution was adopted in the late 18th century, nor in the late 19th century when the Civil War era was coming to an end. And we believe that’s the kind of unprecedented societal problem that Bruen is talking about when it says this is not a regulatory straitjacket for states.

The other argument is just in terms of the technology. We do not believe that the large capacity magazines and the semiautomatic weapons that they facilitate are remotely comparable to any of the firearms that existed in the 1790s, or even really in the 1870s. We’re taking issue with the idea that the court can only uphold these regulations if these things that functionally did not exist had been regulated at those times.

Miller: Going back to the question of the way these guns are sometimes used in terrible ways, in mass shootings, the plaintiffs argue in response that, for the most part, these are commonly owned by law abiding citizens for lawful purposes, and that you shouldn’t prohibit lawful citizens from owning these things just because sometimes they’re used to do terrible things. How do you respond broadly to that argument?

Kron: Well, we will be presenting evidence next week that sort of talks about how often these firearms, and specifically large capacity magazines are used. We will also be presenting evidence that essentially any firearm can be used with a magazine that has a capacity of 10 or under. The argument that the state is presenting and the evidence that we will be presenting basically is that, in our view, these are not actually particularly well suited to self defense or any lawful uses frankly, but that in fact where they primarily make a difference is in these mass shooting events.

Miller: This is a bench trial, meaning if I understand correctly, that it’s up to the judge to rule on the different arguments that you and the plaintiffs will be making as opposed to a jury. What’s the likely timing here for the federal trial?

Kron: That is a question for Judge Immergut.

Miller: You mean you just can’t presume to know what she will do?

Kron: Yeah, I’m not going to predict the timing of her decision.

Miller: What about predicting the response from your end or the plaintiffs? Is it essentially guaranteed that whichever side loses will appeal?

Kron: I would be shocked if that were not to happen.

Miller: We were focusing here on some of the arguments that have already been presented in a stripped down way, in terms of the plaintiffs arguments and your counter arguments. This is for the federal trial that starts next week, but there’s also the state trial in the fall. How different will those issues be?

Kron: Well, that’s a very excellent question. I think they will be different. The state court judge has been fairly clear that he is not assessing this under the Second Amendment test of Bruen, but under the Oregon Constitution’s right to bear arms. On the other hand, there have been some suggestions made in the case that the judge should view that Second Amendment test as a floor for interpreting the Oregon Constitution. I can’t really predict how those arguments will be ultimately resolved by the judge for the trial, but I would expect that will be similarities, in that you’re likely to see a similar mix of expert testimony on each side with a little bit of testimony from local law enforcement and from the state police about how the permitting system in particular will work if allowed to be implemented. And then some testimony from the plaintiffs just sort of talking about their interest in the case, their ownership of guns, their intention to acquire guns in the future, things of that nature.

Miller: Let’s say that magically, tomorrow, the federal and state cases were to evaporate and this law could take effect. Is the regulatory apparatus from the Oregon State Police and on down to local law enforcement levels in place? And how long will it be before it could actually fully function?

Kron: Well, the local law enforcement question is not really one I can answer directly. I do not represent the local law enforcement entities that are responsible for administering the permit system on the ground.

The state police will provide evidence saying that they are ready to implement their parts of Measure 114. I don’t think anybody would say that it is in a state that is ideal or how we fundamentally want it to work once the process is a little bit better established. But the state is prepared to do its part to implement Measure 114.

Miller: Michael Kron, thanks very much for your time.

Kron: Thank you, Dave. Good to be here.

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

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