Opponents of Measure 114 gun laws say case is about “individual rights” in trial opening

By Jonathan Levinson (OPB)
Sept. 19, 2023 1:36 p.m.

In opening statements Monday, lawyers for two people suing over Oregon’s new gun laws said Ballot Measure 114′s provisions are the “most significant threat to [the right to bear arms] Oregonians have faced in nearly 165 years.”

“This case is not about public health, public safety or public concern,” plaintiffs’ attorney Tony Aiello told Judge Robert Rascio. “This is about individual rights. This is about the individual right to self defense and the right to bear arms to secure that right.”

FILE - A man enters a gun shop in Salem, Ore., on Feb. 19, 2021. Opponents of the state's new, voter-approved gun law is back in court this week as opponents argued Monday the law's ban on high-capacity magazines infringes on "individual rights."

FILE - A man enters a gun shop in Salem, Ore., on Feb. 19, 2021. Opponents of the state's new, voter-approved gun law is back in court this week as opponents argued Monday the law's ban on high-capacity magazines infringes on "individual rights."

Andrew Selsky / AP

Aiello said plaintiffs in the state trial plan to show that Measure 114, approved by voters last year, effectively limits Oregonians to owning only antique firearms. He said Measure 114 regulates firearms that were plentiful prior to 1859, the year Article I, Section 27 of the Oregon constitution — the section protecting the right to bear arms — was ratified.

The new laws would ban high capacity magazines holding more than 10 rounds of ammunition, require a completed background check to buy or transfer a firearm and require a person to take training and receive a permit to purchase a firearm. Raschio, an Oregon Circuit Court judge based in Harney County, blocked the new laws from taking effect in December pending this week’s trial.

In their opening statement, lawyers defending the new rules for the Oregon Department of Justice said the court must determine if large capacity magazines are considered “arms” under the state constitution, and thus protected, a question they said had already been resolved by the Oregon State Court of Appeals.

“The Court of Appeals rejected the idea that semiautomatic firearms are protected arms,” attorney Anit Jindal said. “Indeed, evidence at trial will confirm that large capacity magazines were not commonly used for self defense in 1859.”

In his opening statement in defense of Measure 114, Jindal said the new restrictions are a reasonable public safety response to the risk posed by large capacity magazines. They plan to call witnesses who will show how those magazines allow shooters to continue firing without reloading and have increased the lethality of mass shootings.

“Taken together, the testimony of defendant’s experts will demonstrate to the court, that large capacity magazines increase the number of firearms homicides and the frequency and fatality of mass shootings,” Jindal said.

He added that they will also show that large capacity magazines are rarely used in self defense, that the permit-to-purchase system is a reasonable public safety measure and that time restrictions in that requirement are consistent with the history of the right to bear arms.

The first witness for Measure 114 opponents was Derek LeBlanc, a firearms instructor who also teaches self defense and consults on home security. He said he recommends his students get a firearm they can afford and that holds as many rounds as possible.

“I want as many rounds as I can carry inside the gun,” LeBlanc said. “”I might not have the time to grab an extra magazine. It gives me the ability to be able to deal with that imminent threat.”

On cross examination, LeBlanc was asked why he didn’t carry 60- or 100-round magazines. As an example of when it might be appropriate for someone to carry a 100-round magazine, he cited the need to defend oneself during the Portland racial justice protests of 2020 when what he described as “mobs of people” were in the streets.

Related: Measure 114 would tighten gun laws in Oregon


Ashley Hlebinsky, a firearms historian, testified for the plaintiffs that there were points in early U.S. history during which civilians had more advanced firearms than the military. (The Oregon Court of Appeals has said that firearms which evolved from military ordnance are not protected under the state constitution.) Hlebinsky said the earliest rifles, long guns with grooves in the barrel causing projectiles to rotate in flight, were initially rebuffed by the military.

“In terms of accuracy, distance, your long rifle would have been a superior firearm,” she said. “In terms of the loading process and the speed of that, that’s the only real downside to having the rifle.”

Those rifles were also not sold to the public, she later testified.

Hlebinsky also testified that many of the firearms in common use today have historical analogues. She said there were many early firearms capable of firing multiple rounds without needing to be reloaded and several makes and models that held over 10 rounds or used magazine-style feeding devices.

Cross examining Hlebinsky, Special Assistant Attorney General Harry Wilson asked her about many of the firearms she mentioned and whether they existed in America in the late 18th Century or if they were available only in Europe.

Hlebinsky said she did not know how prevalent many of the firearms she discussed were at the time.

“Have you studied production numbers for any swathe of firearms prior to 1860,” Wilson asked?

Hlebinsky said that, save for a few specific makes and models, she has not studied production numbers. Several of the rifles she mentioned in her testimony which were available in the United States and colonies, she said, held fewer than 10 rounds.

Clifford Asmussen and Joseph Arnold, the two men suing the state, also took the stand. They testified about what firearms they own, their magazine capacities, how they use their firearms, and if they have firm plans to purchase specific firearms in the future.

Related: Federal judge says Oregon’s new gun rules don’t violate US Constitution

Both said they owned numerous firearms and high capacity magazines. Arnold, 52, testified that he planned to buy more in the future but said he did not have a specific firearm in mind or know when he planned to buy one. Asmussenm, 76, said he wasn’t sure if he planned to buy more firearms but said that if a war broke out, he intended to defend the state using something with a large capacity magazine.

Measure 114 has already been challenged in federal court, and found valid. This summer, U.S. District Judge Karin Immergut issued a 122-page ruling finding the law was solid under the U.S. Constitution.

Large capacity magazines “are not commonly used for self-defense, and are therefore not protected by the Second Amendment,” Immergut wrote in her ruling. “The Second Amendment also allows governments to ensure that only law-abiding, responsible citizens keep and bear arms.”

A U.S. Supreme Court decision last year laid out a new standard for firearms restrictions in the country, finding that laws must be “consistent with this nation’s historical tradition of firearm regulation.” Specifically, laws must be rooted in analogous regulations that existed at the time the Second Amendment was ratified.

The standard under the Oregon Constitution is much less stringent. In Oregon, the constitution “requires that there be a reasonable regulation to protect public safety,” said Jack Landau, a retired Oregon Supreme Court justice and a law professor at Willamette University and the University of Oregon.

The state trial is scheduled to last six days, but on Monday attorneys for each side suggested they could finish much sooner.