Firearms groups rest case in constitutional challenge to Oregon’s new gun laws

Firearms groups who filed lawsuits in federal court in Portland challenging the constitutionality of voter-passed gun laws rested their case Tuesday.

Several elected sheriffs, a number of Oregon gun store owners and other firearms advocates filed lawsuits last year arguing Measure 114 violates the U.S. Constitution. That case is being heard this week.

“This case is about constitutional rights,” Daniel Nichols, attorney for the plaintiffs, said Monday during opening arguments. He said it was about “the right to keep and bear arms under the Second Amendment as well as the right to keep property.”

The state’s case in defense of the new laws began on Tuesday morning and is expected to last several days.

Among the more than two dozen legal questions U.S. District Court Judge Karin Immergut asked the parties to address this week, two will be especially critical as she decides whether or not Measure 114 is constitutional. One concerns whether magazines are considered “bearable arms.” The other asks whether mass shootings constitute “an unprecedented societal concern.” If magazines are found to be arms and not an accessory, that could make them harder to regulate. And if mass shootings are found to be a significantly new public safety concern, that could justify tighter regulation of firearms under the Second Amendment.

Both questions are aimed at addressing new standards established in a U.S. Supreme Court ruling last year in New York State Rifle and Pistol Association v. Bruen. The ruling by the court’s conservative majority limited a New York state permitting law and established a new test for how the Second Amendment, which guarantees a right to bear arms, can be applied.

Oregon’s new gun laws are among the first to be tested under the new standards established by that decision.

Oregon voters passed the stricter gun laws outlined in Measure 114 in November with 50.6% of the vote. The measure bans the manufacture and sale of magazines that hold more than 10 rounds and requires anyone who wishes to obtain a firearm to get a permit first. Permits will require taking a safety course and completing a federal background check.

The Oregon Department of Justice and the Oregon Alliance for Gun Safety are defending Measure 114. Regardless of the outcome of this trial, the law will not go into immediate effect. It is currently blocked by a preliminary injunction by a state court in Harney County where the law has been challenged under the state constitution. The state case is scheduled to start in September.

Both sides in this week’s federal case are expected to appeal an unfavorable ruling. Still, the evidentiary record established during the trial will be part of what’s considered by any future appellate judge and by the U.S. Supreme Court justices, should the case ultimately land in that court.

Trial to test the law ‘as written’

The firearm advocates’ case was shorter than initially planned because Immergut moved last week to limit the scope of the weeklong trial. The gun groups had hoped to present evidence showing how Measure 114′s permitting process would violate the constitutional rights of those wishing to purchase firearms.

But Immergut set those arguments aside. In the order issued late last week, she writes that evidence about how the law’s potential future application may cause harm are “unripe.” She writes that the permitting provisions the plaintiffs “challenge as unconstitutional in their application have never been applied.”

“A facial challenge challenges the constitutionality of a law as written,” Immergut writes in her order. “Evidence outside of the text of BM 114, such as how the provisions may or may not be applied at some future date, is of no consequence to this Court in deciding Plaintiffs’ facial challenge.”

The order states that plaintiffs are welcome to bring a case about how the law infringes on their constitutional rights if it goes into effect and they can present evidence of harm.

Opening arguments

With arguments about the permitting provision limited, much of the trial so far has focused on whether the state can regulate magazine capacity to 10 rounds or fewer. Nichols, a lawyer for the parties challenging the law, said during opening arguments that their evidence would show most of the firearms sold in Oregon come standard with more than 10 rounds from the manufacturers.

In contrast, attorneys for the state said they will show that most popular firearms can be purchased and function with 10-round magazines. Hannah Hoffman, an attorney representing the state, said their experts would show Measure 114 “is consistent with this nation’s tradition of gun regulations.”

Hoffman, who is employed by the law firm Markowitz Herbold, previewed several experts she said would focus on a range of issues, including the history of firearms as well as the effects of gun violence. She said one expert would testify that in most self-defense cases where people use a firearm, a small number — only 0.3% — fire more than 10 rounds. Nationally, the average is 2.2 rounds and in Oregon it’s just 1.3 rounds, Hoffman said.

After opening arguments, the named plaintiffs had a chance to testify.

Adam Johnson, a gunsmith and owner of Coat of Arms in Keizer, which customizes and sells firearms, testified about an incident in May 2006 in Indiana where he worked as a security guard and stopped a robbery at a convenience store. Johnson said he was shot at twice and returned fire with 13 rounds. Shortly after, law enforcement arrived.

“It was ruled a justified shooting,” Johnson said. “I am alive because I had enough rounds to finish a gun fight.”

Jessica Harris, with G4 Archery in North Plains and another plaintiff in the case, testified that were she limited to selling firearms with smaller magazines, she would have inventory that she would no longer be able to sell. She said her business would be harmed.

Harris said magazines with 10 rounds or more could be necessary in instances in which there were multiple attackers or in instances involving an animal attack, such as cougar or bear.

Under cross-examination, Harris was asked if she had continued to stock large capacity magazines from distributors that can hold more than 10 rounds — even after voters passed Measure 114.

“As of now, yes,” Harris replied.

She also said she did not have any personal knowledge of an animal attack in which a person used more than 10 rounds to subdue the creature.

Sherman County Sheriff Brad Lohrey, another plaintiff, testified about his family’s history in law enforcement, including his father, who also served as the county’s sheriff. Lohrey testified that his dad “stored guns in my bedroom” in a glass case when Lohrey was a kid.

“As soon as I could walk, I started shooting,” the sheriff testified. “I have a strong respect for firearms.”

Lohrey, who is retiring, said there are just six deputies to cover the community’s 1,900 residents, leaving hours of the day with no one on duty. The community is so small that residents sometimes have to assist the sheriff, he testified. He also spoke about the popularity of the AR-15 style rifle among the county’s residents. He told the judge that ranchers use it for “predator control,” specifically to protect cattle from coyotes, which he said require “significantly” more than 10 rounds.

“I want them to be able to purchase whatever firearm they want,” Lohrey said of Sherman County’s residents. “I want them to continue to protect themselves.”

The effect of large capacity magazines

Plaintiffs called several experts, including Mark Hanish, who has spent decades in the firearms industry and currently works as vice president of sales for Timney Triggers, an Arizona-based company that makes replacement triggers for rifles and handguns. He’s also worked as a professional shooter, winning competitions, as well as in sales for FN America, a subsidiary of Fabrique Nationale, a Belgium company that produces firearms for the U.S. Military and the public.

Hanish was hired by the plaintiffs to speak about semi-automatic weapons and detachable magazines capable of holding more than 10 rounds. Almost all the pistol and rifle lines sold at FN America when he worked there were offered with “large capacity” magazines, Hanish states in his declaration.

“The magazine is the most critical part of the gun,” Harish testified. “We would start a new gun with the magazine.”

During cross-examination, Brian Marshall, senior assistant attorney general for the Oregon Department of Justice, asked Hanish about his role as vice president for marketing and sales at Surefire, a company that produced magazines that hold up to 100 rounds. Hanish worked at Surefire from 2016 to 2018, according to his LinkedIn page.

“If I say ‘the Las Vegas shooting,’ do you know what I’m talking about?” Marshall asked Hanish, referencing the Oct. 1, 2017, shooting in which a single gunman fired from a 32nd-floor suite of the Mandalay Bay resort into a music festival crowd, killing 60 people and injuring hundreds more.

Marshall showed Hanish images of large capacity magazines in the shooter’s hotel room and asked if they looked like Surefire magazines. Hanish replied that he couldn’t see if it was a 60-round or 100-round magazine in the picture and “there wasn’t an indication it was actually used.”

Marshall showed Hanish a series of photos that included numerous AR-15 style rifles and long magazines that had been found in the shooter’s room, which Hanish agreed looked like Surefire 100 magazines.

“Do you think it’s likely Surefire 100-round magazines were used in the deadliest shooting in the U.S. history?” Marshall asked.

“From those pictures, yes,” Hanish replied.