Oregon Appellate Court Reverses Judge’s Decision, Declares Gun Control Ballot Measure Constitutional

The years-long legal fight over Oregon’s Measure 114 took a turn for the worse on Wednesday when the state’s Court of Appeals overturned a 2023 ruling by Harney County Circuit Court Judge Robert S. Raschio that a ballot measure banning “large capacity” magazines and establishing a permit-to-purchase scheme violated the state’s protections toward the right to keep and bear arms. 

In their ruling, a three judge panel on the appellate court concluded that Measure 114’s provisions were facially constitutional despite the language in Oregon’s constitution that states “the people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power.” 

The court evaluated whether the people of Oregon enacted a “reasonable regulation” governing the possession and use of constitutionally protected arms in order to promote public safety without “duly frustrating” the right to armed self-defense. In doing so, it said it largely discarded “the record developed” or the “findings of fact” that the Harney County judge made, and focused on the text of the measure. 

… The appellate court decision is more in line with the July 2023 ruling by U.S. District Judge Karin J. Immergut, although that case focused on whether the measure was in line with the U.S. Constitution. She found that the Second Amendment does not protect magazines that hold more than 10 rounds of ammunition, and even if it did, that Oregon’s restrictions on the use of such magazines are “consistent with the Nation’s history and tradition of firearm regulation.”

In its ruling the appellate court cited a previous case called State v. Christian where the state Supreme Court held that the state legislature has the authority “to enact reasonable regulations to promote public safety as long as the enactment does not unduly frustrate the individual right to bear arms for the purpose of self-defense as guaranteed by Article I, section 27.”

Raschio had held that the ban on commonly-owned magazines and the de-facto 30-day waiting period established by the permit-to-purchase provision did, in fact, “unduly frustrate” the right to keep and bear arms, but the appellate court disagreed; arguing that “the plain text
of the measure requires the permit agent to act on the application within 30 days of receiving it—which also encompasses the time to get the background check—but nothing in the measure prevents the permit agent from acting sooner when qualifications are met.” 

We are not persuaded that requiring a permit-to-purchase and passing a criminal background check—even if complying with those reguations causes a delay in obtaining a firearm—would render Measure 114 unconstitutional under all circumstances. To the contrary, when the measure is executed as the text of the measure contemplates, it will not unduly frustrate the Article I, section 27, right to armed self-defense because a qualified individual will be able to obtain a firearm for the purposes of self-defense. Article I, section 27, does not confer the right to obtain a firearm immediately in all circumstances; it is a right to defend oneself using constitutionally protected arms. We decline to engage in any speculation about how the measure might be executed in the
future and the effect that might have on any one individual’s Article I, section 27, right. Those questions can only be explored through as-applied challenges that are not before us, as plaintiffs’ complaint alleged a facial challenge and the circuit court ruled that it would address only a facial challenge, which is a ruling that plaintiffs do not challenge on appeal.

While the appellate panel claims they’re not engaging in any speculation about whether Measure 114 might be unconstitutional as it applies to individual citizens, the judges have essentially determined that a 30-day wait to purchase a firearm does not unduly frustrate someone’s ability to bear arms in self-defense, which is completely ludicrous. 

The panel deployed a similarly ridiculous argument in defense of Measure 114’s ban on magazines that can hold more than ten rounds of ammunition, declaring that limiting an individual’s ability to legally fire more than 10 rounds of ammunition in self-defense without reloading does not unduly frustrate the Article I, section 27 right because the state constitution “does not provide an absolute right, but a right to armed self-defense that is subject to the wide latitude of the legislature ‘to enact specific regulations restricting the possession and use of weapons to
promote public safety.'”

It’s actually the courts, not the state constitution, that granted the legislature that “broad latitude”, so the appellate panel could easily have concluded (as Raschio did) that any measure preventing lawful gun owners from being able to adequately defend themselves against multiple attackers is, in fact, an undue burden on their right to armed self-defense. Under the panel’s ruling its hard to see what gun control measures would violate the state constitution, at least as long as the legislature declares they’re necessary to protect public safety. 

Today’s ruling can be appealed to the state Supreme Court, but it also opens the door for Measure 114 to be enforced. The state has struggled to come up with the specifics of the permit-to-purchase regime established under Measure 114, but the magazine ban could soon be in effect. The panel ordered the case sent back to Raschio’s court, but not for a completely new trial. Instead, the appellate court ordered the judge to simply enter a declaratory judgment “consistent with this opinion” and determine whether the state is entitled to fees or costs.