Measure 114, Oregon’s voter-passed law to regulate firearms, has yet to go into effect because of multiple court challenges. Measure 114 bans future purchases of magazines that can carry more than 10 rounds of ammunition. It also requires those wishing to buy a firearm to get a permit first. Permits will require applicants to complete a safety class and a federal background check.
Last Friday, a federal judge ruled that the measure’s ban on the sale or manufacture of large-capacity magazines and its requirement for a permit to purchase a gun are constitutional. The ruling was appealed and may eventually be heard by the U.S. Supreme Court. Meanwhile, Measure 114 also faces a challenge at the state level that will be heard in September. Norman Williams, law professor at Willamette University, explains where the legal challenges stand now.
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. Last week, a federal judge found that Measure 114 does not violate the US Constitution. The measure is the gun safety law that Oregon voters passed in November. It would ban the manufacture, purchase or sale of magazines that can hold more than 10 rounds of ammunition. It would also require that people take a safety course and pass a background check to get a permit before they can purchase firearms. Before the law went into effect, though, it ran into legal challenges at the federal and state levels.
For more on where the law stands right now and what this all means, I’m joined by Norman Williams. He teaches constitutional law at Willamette University’s College of Law. Welcome back to the show.
Norman Williams: Good afternoon. Thank you for having me, Dave.
Miller: Good afternoon. What did the two sides focus on in their arguments in federal court last month?
Williams: So, most of the argument concerns Measure 114′s ban on large capacity magazines, meaning gun magazines that can hold more than 10 rounds of ammunition in it. And most of the focus was on whether that type of regulation, that ban on large capacity magazines, was analogous to gun regulations in the past. Was there some type of historical antecedent for that type of ban that would therefore justify Oregon adopting Measure 114.
Miller: As I understand it, this is tied to a pretty new standard that stems from the US Supreme Court’s 2022 ruling in the Bruen case. Can you explain what the text, history and tradition standard entails now?
Williams: It’s a great question. So, in the Bruen case last year, the US Supreme Court basically reconfigured how it approaches Second Amendment gun rights. Previously, it had employed a balancing test, basically asking whether the state’s interest in regulating firearms outweighed the burden on gun owners rights.
But in the Bruen case the court announced a historical approach, that going forward, burdens on gun owners’ rights were not justified unless the government could point to a law in 1791, at the time the Second Amendment was ratified, that was comparable to the law under review. And so this has really focused the federal courts on looking at the history of firearms regulation to decide whether a modern regulation has some type of historical antecedent that existed in 1791.
Miller: So, how did Federal Judge Karin Immergut talk about the history and tradition of firearm regulation as it relates to this relatively new technology of high-capacity magazines?
Williams: Judge Immergut conducted a weeklong trial, where historians testified about the history of gun regulation in America. Now, in 1791 there weren’t bans on large capacity magazines, and one of the critical questions was, was that because there weren’t such magazines or because early Americans just weren’t concerned about gun violence at that time.
As a result of the absence of any direct regulation of large capacity magazines then, Judge Immergut focused instead on other types of regulations. And she looked beyond firearms regulations. She looked at the regulations of gunpowder, of knives, of blunt objects. And from that history, that Americans have regulated violent weapons, she concluded that the Second Amendment doesn’t ban the government from adopting new regulations that respond to new technologies like assault weapons or large capacity magazines.
Miller: So that seems like it took up the brunt of the arguments on either side for this particular case. But the judge also ruled on the constitutionality of the Permit to Purchase requirement. What did she say?
Williams: So, with regard to the Permit to Purchase requirement, she very much limited her consideration to whether, on its face, that was a violation of the Second Amendment. And she concluded, based on some language in the Supreme Court’s Bruen decision, that licensing requirements do not on their face violate the Second Amendment.
It’s important, though, that Judge Immergut reserved the question, whether the application of the Permit to Purchase requirement, in actually enforcing that requirement, whether the state might enforce it in too burdensome a manner. And she left open the question of what we would call an As-Applied Challenge to the permitting requirement, basically leaving it for a later date after that requirement goes into effect to determine whether it’s being administered in too burdensome a fashion.
Miller: And we could talk about the potential timeline for that later, what it would take before this law could actually go into effect, and when that might happen. Gun rights groups have already appealed this decision, Judge Immergut’s decision, to the Ninth Circuit Court of Appeals, but whatever happens there, is it safe to assume that that decision is going to be appealed to the US Supreme Court?
Williams: I think so.The Ninth Circuit will take probably something on the order of a year to issue its decision. But Oregon is right now at the forefront of the litigation regarding the constitutionality of bans on large capacity magazines. And this is an issue that I think the US Supreme Court will ultimately be interested in and take up, and that could be several years away before the US Supreme Court weighs in on Measure 114.
Miller: Does the current court’s makeup, or their recent rulings, give you any indication on how they might approach Oregon’s law?
Williams: They do. And there’s something to a tea-leaf reading quality here, or speculation as to how the US Supreme Court might look, but looking at what they said in the Bruen decision and then looking at a prior decision from several years ago in the Ninth Circuit, a case called Duncan versus Bonta, I think it’s likely that the ban on high-capacity magazines will be found by the US Supreme Court to be unconstitutional.
The current six-justice conservative majority which struck down New York’s carry permit requirement in the Bruen case, very much kind of announced its intention to be very protective of gun owners’ rights and to be very rigorous in how it looks at the history of firearms regulation. And there was a judge on the Ninth Circuit in a case involving California’s ban on high-capacity firearms that basically said history doesn’t show that these types of bans are justified. And so, one might kind of read between the lines here that the US Supreme Court is likely to follow that same type of historical focus and conclude that there just aren’t any comparable bans on high-capacity magazines that existed in 1791, that therefore justify a modern ban on them.
Miller: That, again, is focused on the ban on high capacities. What about the Permit to Purchase provision when it comes to the Supreme Court? About three weeks ago, the High Court agreed to hear a case from Texas where the issue is whether or not people with domestic violence orders can be banned from purchasing firearms. The Fifth Circuit Court of Appeals struck down a federal law saying that. Could that have a bearing on Oregon’s law?
Williams: Yes, I think Measure 114′s Permit to Purchase requirement is, unlike the ban on large capacity magazines, likely to be upheld as constitutional. In the Bruen decision, Justice Kavanaugh and Chief Justice Roberts concurred in striking down the New York licensing requirement, but they expressly said that in general licensing requirements are perfectly constitutional. So adding Justice Cavanaugh and Chief Justice Roberts to the three dissenting justices in Bruen provides a five-justice majority in favor of the constitutionality of licensing requirements.
Now you mentioned the Fifth Circuit case, a case called United States versus Rahimi, in which the Fifth Circuit struck down a federal statute that bans individuals who are subject to a domestic violence restraining order, from possessing a firearm. The US Supreme Court took that case and will hear it this upcoming year, and that again signals that the Supreme Court is somewhat discomfited by that decision. The US Supreme Court typically takes cases with an eye to reversing. About 70% of the cases that it takes, it reverses, because it doesn’t see its point in kind of applauding a lower court that got it right, it sees its role as reversing lower courts that get it wrong.
And so again, there’s some tea leaf reading here, but the early conventional wisdom is that the court is likely to reverse the Fifth Circuit hold that individuals who are subject to domestic violence restraining orders don’t have second amendment rights to possess firearms. And since the underlying rationale of those bans is that these are people who are mentally unstable or prone to violence, that is the same rationale for Measure 114′s requirement of background checks and gun safety training in order to acquire the permit to purchase. And so I think the Rahimi decision, whatever it is, will very much bear upon the permit to purchase requirement in Measure 114.
Miller: All of this, as you said, looking at the tea leaves, suggests a tough hill for the state to climb in terms of the federal case as it goes forward after this initial win at the district court level. But there’s, in addition to all of this, the state trial as well, which is looming in September. How are the issues there, the state constitutional challenge, similar or different?
Williams: Very similar, but different in one critical way, which is that the litigation going on in Harney County, a case called Arnold v. Kotek, focuses solely on the state constitutional protection for gun owners’ rights. And the trial judge in Harney County has already concluded last December that he thinks, more likely than not, that Measure 114 violates the Oregon Constitution’s protection on the right to bear arms. The judge will be holding a trial in September that will go to the ultimate merits of whether that’s true, but it’s highly unlikely that he’s gonna reverse himself after having concluded last December that measure 114 is likely unconstitutional. It’s not unprecedented for judges to change their mind, but there’s no indication that this judge is likely to.
So I think what will likely happen at some point this fall, the Harney County judge will issue a judgment holding that under the state constitution, Measure 114 is unconstitutional.
Miller: And then that, too, would go to the Oregon Court of Appeals, I assume, or straight to the State Supreme Court and once again, we would wait for the high court to weigh in.
Williams: That’s right. And this is an important point here, that for Measure 114 to ever go into effect, it’s currently being held in abeyance by the state court judge in Harney County, but for it to ever go into effect, the state has to win in both the federal courts and the state courts. Gun owners only have to prevail in one of these cases for Measure 114 to be struck down
Miller: Norman Williams, thanks very much for joining us.
Williams: Thank you, David.
Miller: Norman Williams is a professor at Willamette University College of Law who teaches constitutional law.
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