New Oregon gun law, Measure 114, to face federal court test next week

By Dave Miller (OPB) and Sage Van Wing (OPB)
June 1, 2023 1 p.m.

Oregonians passed Measure 114 in November. It would ban the manufacture, 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. But before the law went into effect, it ran into a flurry of legal challenges at the state and federal levels.


The state case is expected to pick up again in September. And several bills meant to tighten Oregon’s gun laws are among the legislation sidelined by the Republican-led walkout in the Oregon Senate.

In the meantime, the federal bench trial — no jury — starts next week in Portland and will be heard by U.S. District Court Judge Karin Immergut, a Trump appointee. The federal trial, which is slated to run for five days, will result in a first ruling about whether the new law is legal under the U.S. Constitution. No matter what Immergut decides, the ruling will likely be appealed, possibly all the way up to the U.S. Supreme Court.

A lawyer for one of the groups hoping to overturn the law declined an invitation to come on Think Out Loud this week, citing the pending case. But a lawyer for the state, Michael Kron, did agree to come on the show and spoke to host Dave Miller on Wednesday. Kron is special counsel to the State Attorney General and is part of the legal team defending the voter-passed law.

This conversation has been edited for length and clarity.

Dave Miller: Can you remind us more fully what Measure 114 does?

Michael Kron: Of course. 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, if you haven’t heard back from your application [after 30 days], they provide you with the right to go to court to get an answer.

The second thing Measure 114 does 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 [federal] 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. [Measure 114] requires a completed background check.

Miller: The plaintiffs [in the federal case] 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 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?

Kron: The state’s argument on that point is that the Bruen decision specifically allows for permitting regimes that are “shall issue,” 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. [The footnote] includes Oregon’s concealed handgun license regime, which has many of the same features that Measure 114 includes.

Miller: Plaintiffs say permit-to-purchase regimes all came in the 20th Century, which is “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: Well, 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 prior regulation, 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 the kinds of regulations that will suffice to show a tradition of regulating arms in this country needs to be looked at 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: Our primary arguments [regarding the permitting requirement] are that this is something Bruen specifically says is OK. They don’t explain why permits to purchase are different than permits to carry. And in any event, there are historical analogs to this kind of regulation.

Miller: I do want to turn to the 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. It’s 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.

So that’s one of the arguments.

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. And the idea that we’re taking issue with is 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 [high-capacity magazines] 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 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. So the argument that the state is presenting and the evidence that we will be presenting is basically that, in our view, these [magazines] are not actually particularly well suited to defensive use, 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 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: I think that’s a question for Judge [Karin] Immergut. 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: 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 [state] trial, but I would expect that there will be similarities [between the state and federal trials] and 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 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 actually could actually fully function?

Kron: Well, the local law enforcement question is not really one I can answer directly. I don’t 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.