Restraining Order Puts New Oregon Gun Measure on Hold

A Harney County judge Tuesday granted a temporary restraining order against all provisions of Oregon’s gun control Measure 114, just two days before it’s set to take effect.

County Circuit Judge Robert S. Raschio’s order left Measure 114 proponents stunned as they were still celebrating a federal judge’s ruling three hours earlier that allowed the measure’s regulations to take effect as planned, with only a 30-day delay in the requirement to obtain a permit to buy a gun.

The state’s attorney general plans to petition for higher court review of the county judge’s order, said Kristina Edmunson, a spokesperson for Oregon Attorney General Ellen Rosenblum.

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“I can tell you we will be shortly filing a mandamus petition asking the Oregon Supreme Court to review it immediately,” Edmunson said.

Raschio’s order came in a case brought by Gun Owners of America, a Virginia-based nonprofit, its legal defense fund Gun Owners Foundation and two Harney County gun owners.

Unlike the federal case, their suit challenged Measure 114 under Oregon’s constitution, so the federal judge’s ruling has no bearing on Raschio’s order.

“His order is separate and binding,” said Steve Kanter, dean emeritus at Lewis & Clark Law School.

While there has been “relentless news about mass shootings and slaughter of innocents,” Raschio said the Gun Owners of America had shown that putting Measure 114 on hold will maintain the “status quo” until the court can determine in a more in-depth hearing for a preliminary injunction whether the measure meets constitutional muster under Article 1, Sec. 27 of the Oregon Constitution.

That article says, “The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]”

The county judge found that the public interest weighs against the measure’s implementation at this time, and set a hearing for Dec. 13 on a preliminary injunction.

“With implementation, there are serious harms to the public interest as well, which could include individuals being arrested and prosecuted for Class A misdemeanors under what could be found to be an unconstitutional statutory scheme,” Raschio ruled from the bench. “And that potential could happen if Ballot Measure 114 is allowed to go into effect without significant judicial scrutiny. And, certainly no one would argue that individual liberty is not a cornerstone of our country. First the people, then the state.”

Senior Assistant Attorney General Brian Simmonds Marshall had urged Raschio to put a hold on his temporary order, but Raschio refused. He said his order will bar Measure 114′s gun control limits from going into effect as of 12:01 a.m. on Thursday.

The measure, which passed by 50.7% of votes, calls for a permit to buy a gun; ban on the sale, transfer and manufacture of magazines holding more than 10 rounds and requires a background check to be completed before any sale or transfer of a gun can occur.

Raschio found that guns with more than 10 rounds existed when the Oregon Constitution was drafted in 1857 and when the constitution was adopted in 1859. He also found that magazines are not separate or distinct from “arms,” which are protected by the Oregon Constitution.

Attorney Tony L. Aiello Jr., representing the gun owners, had argued that the Girandoni air rifle, which offered a magazine holding 20 shots, “was the emerging leader” in guns that could fire multiple shots when the Second Amendment was ratified and “so germane to Oregon’s history that Meriwether Lewis himself carried a Girandoni on the Lewis and Clark expedition of the Oregon territory,” Aiello said. The expedition lasted from mid-May 1804 to Sept. 23 1806.

Earlier Tuesday, U.S. District Judge Karin J. Immergut wrote in her ruling in a separate federal case that the Girondoni air rifle was developed for the Austrian army and considered “extremely expensive, fragile and rare and were pulled from military service in 1815.”

Aiello called one witness during the county court hearing, Ben Callaway, owner of Spent Cartridge gun shop in Burns, who testified that magazines able to hold more than 10 rounds are standard on many popular guns, and when he tried to order a 10-round magazine for a Glock pistol online this week, he couldn’t find one, he testified.

Marshall, of the attorney general’s office, had urged the Harney County judge to consider the experience of the state of California, which has had a similar ban on large-capacity magazines since 1994. “America’s largest market has operated under these rules for several decades, and I’m sure our market will be similarly served,” he said. California’s ban on large-capacity magazines also faces an ongoing legal challenge in federal court in San Diego.

Oregon gun owners still can have larger-capacity magazines in their home, on their own property and use them for target shooting, shooting competitions or other recreational purposes such as hunting, according to state law, Marshall argued.

Aiello responded, “But that is not the reason why Article 1, Section 27 exists....It is for self defense in the home, outside the home, at work if your employer will allow it. That’s the purpose of it. And many Oregonians - hundreds of thousands - are going to be unable to do so on Friday,” should the measure become law.

Raschio, ruling from the bench, said he was persuaded that “magazines are protected by the Oregon Constitution, and firearms containing fixed magazines that can hold 10 bullets or more are in common use within Oregon.”

Kanter, dean emeritus at Lewis & Clark Law School, said the attorney general, in its petition for a writ of mandamus, will ask the Oregon Supreme Court to intervene to try to vacate or throw out the Harney County judge’s temporary order blocking Measure 114.

If the state Supreme Court is convinced this case warrants its intervention, it would issue a preliminary writ of mandamus, ordering the Harney County judge to either throw out his temporary restraining order or explain why he shouldn’t. Then the state Supreme Court would issue a final ruling, Kanter said.

The federal judge’s ruling doesn’t impact the Harney County ruling, as the case before the county judge involved a challenge based on the state constitution, not the federal constitution’s Second Amendment, Kanter said.

Kanter said the “odds are pretty good,” the state Supreme Court would issue a preliminary writ, yet one thing weighs against the state attorney general’s argument.

“Since this is a new law, the status quo is the law doesn’t exist, and the state Supreme Court might say, ‘it’s been going on for 150 years like it is today, and well, it took voters 150 years to come up with this, why would 10 more days matter,’ " Kanter said. The attorney general’s office likely would counter that any further wait on restrictions on the sale of large-capacity magazines could lead to more of a “mad rush to buy” them, as evidenced in recent weeks.

Tung Yin, a law professor at Lewis & Clark Law School, said the state’s attempt to have the state Supreme Court throw out the Harney County circuit judge’s temporary restraining order will be an uphill battle. “I would think it’s unlikely, but not impossible,” he said.

Attorney John Kaempf, who represents the Oregon Firearms Federation and challenged the measure in federal court but lost his motion for a temporary restraining order earlier Tuesday, said, “It is not surprising that a pro-Second Amendment judge in rural Harney County ruled this way, and we are glad that he did.”

Kaempf said he anticipates the Harney County order may be thrown out, pointing to how Oregon’s appellate courts vacated an eastern Oregon circuit judge’s injunction against coronavirus safeguards stemming from a lawsuit challenging the closing of churches and religious schools. “I am concerned Oregon’s appellate courts will again quickly reverse this ruling too,” he said.

In sharp contrast to the county judge’s order, Immergut earlier Tuesday ordered the measure’s permit-to-purchase gun regulation be delayed for 30 days but allowed its ban on the sale and transfer of large-capacity magazines to take effect as planned on Thursday.

The requirement that background checks must be completed before any gun is sold or transferred in Oregon also would have been allowed to go into effect, under Immergut’s decision.

In her 43-page ruling filed in federal court in Portland, Immergut found that “the burden imposed by Measure 114 on the core Second Amendment right is minimal.”

She found the Oregon Firearms Federation, three county sheriffs and two gun-store owners had failed to show they will suffer “immediate and irreparable harm” if the measure takes effect. They also failed to demonstrate that magazines capable of holding more than 10 rounds are necessary for self-defense or commonly used for lawful purposes, she wrote.

“In light of the evidence of the rise in mass-shooting incidents and the connection between mass-shooting incidents and large-capacity magazines — and absent evidence to the contrary regarding the role of large-capacity magazines for self-defense — Defendants are comparably justified in regulating large-capacity magazines to protect the public,” Immergut wrote.

She granted a 30-day delay in the measure’s requirement that Oregonians obtain a permit to buy a gun, at the request of the attorney general. The attorney general’s office urged the court in a letter late Sunday night to delay the permitting process for up to two months, acknowledging that local sheriffs and police agencies would not be ready to support the process and that required firearms safety courses also weren’t yet available.

The judge said the parties could return if the 30-day delay in the permitting process needed to be extended.

Immergut acknowledged the legal landscape had changed with the June U.S. Supreme Court ruling in New York State Rifle & Pistol Association Inc. v. Bruen, which struck down a New York law that placed strict limits on carrying guns outside the home. But Immergut wrote, “it is equally important to recognize what Bruen did not do.”

Immergut pointed out that the majority in the 6-3 Supreme Court ruling noted that the Second Amendment is not a “regulatory straightjacket” that protects a right to “keep and carry any weapon whatsover in any manner whatsoever and for whatever purpose.”

The Second Amendment, Immergut ruled, required a court to not only consider the prevalence of a particular firearm, but also the nature of that firearm’s use among civilians.

“The evidentiary record before this Court, at this stage in the litigation, shows that while large-capacity magazines are rarely used by civilians for self-defense, they are often used in law enforcement and military situations,” Immergut wrote. “The evidentiary record also shows that large-capacity magazines are disproportionately used in crimes involving mass shootings. Based on this record, this Court concludes that Plaintiffs have not shown that large-capacity magazines are weapons ‘in common use . . . for lawful purposes like self-defense’ such that they fall within the plain text of the Second Amendment.”

Kaempf said he and his clients chose to challenge the measure in federal court, “where we believe we will get judges more receptive to our arguments under the federal civil rights laws, and the United States Constitution, both in the trial court and on appeal.”

The Rev. Mark Knutson, one of the chief petitioners of Measure 114 from the interfaith group Lift Every Voice Oregon, said the group had drafted a press release and was ready to put it out applauding Immergut’s ruling. But then they got word later in the morning about the Harney County judge’s decision.

“We’re huddling again to take a look,” Knutson said. “We’re all waiting to learn what happens next.”

Karl Durkheimer, whose family owns two Northwest Armory stores in Milwaukie and Tigard and one in Scottsdale, Arizona, said his Oregon employees have been working 12-hour days, seven days a week since Nov. 10, shortly after the measure was approved. He said he’s directing them to take this Thursday and Friday off. His two Oregon stores had changed their hours from noon to 5 p.m. the past month just to allow staff to handle a crush of orders.

Of the court rulings Tuesday, Durkheimer said, “I really don’t think either one of those events have changed company strategy for us. I’m happy customers will have more of a chance to obtain their ordered products.”

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