State lawyers say they will appeal. A federal judge has ruled the measure legal under the U.S. Constitution.

By Jonathan Levinson / / November 21, 2023

A Harney County Circuit Court judge ruled Tuesday that Oregon’s new gun laws, approved by voters last year under ballot Measure 114, violate the state constitution.

The provisions, passed in November 2022, had been blocked from taking effect by Judge Robert Raschio since last December, pending a full trial. With his new decision, the ruling in a six-day trial held in September, those laws are blocked from taking effect unless a higher state court overturns his decision.

“Oregon citizens have a right to self defense against an imminent threat of harm, which is unduly burdened by Ballot Measure 114,” Raschio wrote, saying the restrictions diminish public safety.

Oregon Attorney General Ellen Rosenblum pushed back Tuesday afternoon.

“The Harney County judge’s ruling is wrong,” she wrote in an emailed statement. “Worse, it needlessly puts Oregonians’ lives at risk. The state will file an appeal and we believe we will prevail.”

Measure 114, which passed by a slim margin, would require anyone who wants to purchase a firearm to take a safety course and pass a test to receive a permit to make the purchase. It also requires a completed background check for purchases and bans magazines holding over 10 rounds of ammunition.

Raschio said all of those provisions are unconstitutional.

Oregon’s new laws were challenged almost immediately after their passage in both federal and state courts. Earlier this year, U.S. District Judge Karin Immergut ruled the law is legal under the U.S. Constitution. That decision has been appealed to the U.S. Ninth Circuit Court of Appeals.

Because the Oregon Constitution only protects firearms that were in common use at the time the state Constitution was passed in 1859, or that are a clear modern day equivalent, much of the state trial focused on the history of firearms in Oregon around that time.

Lawyers for the two men suing the state to block Measure 114 called witnesses who testified about some of the advanced firearms people had access to in the mid-19th century.

Ashley Hlebinsky, a former curator at the Cody Firearms Museum in Wyoming, testified that 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. But many of those firearms, she later said, were very rare in the U.S. at the time.

Raschio wrote in his ruling that he found her testimony convincing — that multi-shot firearms had been tested for centuries and that it was something firearms companies were striving for in the mid-1800s. By contrast, Immergut wrote that Hlebinsky was not an expert and was not a reliable witness.

“Ms. Hlebinsky lacks background and training as a historian,” U.S. District Judge Karin Immergut wrote in her July ruling deeming Measure 114 federally constitutional. “More troubling to this Court, Ms. Hlebinsky has both professional and personal ties to pro-gun groups and the firearms industry, which this Court finds limit her ability to serve as a neutral expert in this case.”

Attorneys for the Oregon Department of Justice defending the new laws called two professors steeped in the history of firearms in late 18th- and 19th-century America. They said that while the colonies — and later the United States — were the best-armed society in the world, repeating firearms and firearms capable of holding multiple rounds were “extremely uncommon” and “vanishingly rare.”

Bryan DeLay, a University of California, Berkeley history professor who has studied the arms trade in Revolutionary War Era America, said he has a hard time imagining that the framers of Oregon’s constitution could have anticipated the future of firearms technology.

“Semiautomatic technology and automatic technology are such profound ruptures in the history of firearms technology, that I find it very difficult to believe that anybody — even someone very well informed — in the late 1850s could have predicted the emergence of smokeless powder, detachable cartridges, automatic reloading,” he said. “That seems hard for me to imagine.”

Raschio wrote that Oregon’s constitutional delegates were certain to have known about the technological advancements happening in firearms.

Two sheriffs and the Oregon State Police superintendent testified for the plaintiffs about the importance of high-capacity magazines over the objection of the state’s attorneys who argued their testimony was irrelevant because Measure 114 exempts law enforcement from the magazine ban.

Union County Sheriff Cody Bowen and Harney County Sheriff Dan Jenkins both said their jurisdictions cover large geographic areas where response times can be lengthy. They also said their deputies have often relied on armed civilians to provide cover for them during incidents and that residents and deputies use their firearms to protect themselves, their families and their livestock from predators including bears, wolves and coyotes.

In his decision, Raschio said Bowen “demonstrated definitively citizens cannot rely on law enforcement to respond quickly to their needs if they are subject to a break in or threat of deadly physical harm.

“Victims can be left without a law enforcement response for hours,” he wrote. “A citizen’s need to protect themselves, their loved ones and their property is immediate as there is no one else (who) will be there to do it for them.”

During the trial, Raschio had tense exchanges with Tufts University epidemiologist Dr. Michael Siegel, who has studied the effectiveness of different firearms laws in the county.

Siegel testified that since 2001, firearm homicides in Oregon increased 310% and that when large capacity magazines are used in mass shootings, casualties more than double.

Raschio said the total number of people killed in mass shootings is “staggeringly low in comparison to the media’s sensationalized coverage of the events.”

He said Siegel’s testimony didn’t appear to be scientific under Oregon’s evidence laws and said that unless Siegel’s research could demonstrate decisively that high capacity magazine bans resulted in fewer gun deaths, he would not consider it when making his ruling.

“Essentially, the defendants wanted to come to court, say this person is an expert, and have the expert assert their legal conclusions as scientific evidence without the proper showing to the court of the scientific validation for the process or the way the process was used to come to that conclusion,” Raschio wrote in his decision.

Measure 114 banned magazines holding over 10 rounds and any magazine that can be “readily” modified to hold additional rounds. Throughout the trial, lawyers sparred over what “readily” means. The plaintiffs called experts who showed they can easily modify a 10-round magazine using a screwdriver, belt sander or epoxy. State attorneys called witnesses who similarly testified the vast majority of 10-round magazines on the market require additional tools to expand their capacity.

Special Assistant Attorney General Harry Wilson explained in his closing argument that under Measure 114′s magazine ban, a person must be able to promptly make a magazine capable of holding more than 10 rounds at the time they are alleged to be violating the law.

“It is not enough that a person might be able to obtain an extension at a store in the future,” he explained. “A person must actually have an extension in their personal possession.”

It’s an argument Immergut bought.

“A ten-round capacity magazine is not readily convertible until the individual removes the baseplate of the magazine — without removing the baseplate, the magazine cannot be extended,” Immergut wrote. “A statute is not void for vagueness merely because an individual could take affirmative steps to come close to breaking the law.”

Raschio was unswayed by the nearly identical testimony, writing that firearms components, including the magazine, are protected under the state constitution.

“Without a magazine, the remaining components of a gun are not a firearm,” he wrote. “The Constitutional delegates and voters of 1857 would be impressed by the advancement in today’s firearms technology, but they would understand our current stock of firearms as direct descendants of those they possessed, including multi-shot and repeater technologies.”

His decision means the new laws remain blocked from taking effect. It is likely to be appealed to the Oregon Court of Appeals and Supreme Court.

FEATURED IMAGE: (Kindel Media)