MILESFORTIS

OR High Court to Finally Hear Measure 114 Arguments Nov. 6

By Dave Workman

Almost exactly three years after Oregon voters narrowly adopted gun control Measure 114, which bans so-called “large-capacity magazines” and requires permits-to-purchase firearms from police, the Oregon State Supreme Court will hear oral arguments challenging the measure’s constitutionality next week.

The hearing is scheduled Thursday, Nov. 6, just two days short of the third anniversary of the controversial initiative’s passage in November 2022. The measure squeaked by with 50.65 percent approval and 49.35 percent opposed, just 1.3 percent different on a gun control question which attracted 1,926,753 votes.

But before anyone gets too excited, the Oregon Capital Chronicle is reporting the three-year battle “may not be over.”

Measure 114 was supported by gun prohibitionists and many in the faith community, while opposition involved virtually every Second Amendment organization in the country including the National Rifle Association, Second Amendment Foundation, Gun Owners of America, Oregon Firearms Federation, Oregon State Shooting Association, National Shooting Sports Foundation and Firearms Policy Coalition. Lawsuits were filed in both state and federal courts, with U.S. District Judge Karin Immergut ultimately ruling against the federal plaintiffs, while Harney County Circuit Judge Robert Raschio ruled the measure violates the Oregon State Constitution. Both rulings were appealed by opposing parties, and it is the state case which will now come before the Oregon court, after the state appeals court reversed Raschio’s ruling.

Much has happened in the interim, with the U.S. Supreme Court’s 2022 decision in New York State Rifle & Pistol Assn. v. Bruen setting the tone. Some, including the Capital Chronicle, assert the Supreme Court has been “expanding” gun rights. By contrast, gun advocates argue the high court is restoring Second Amendment rights that have been eroded over the course of decades.

Much is riding on this case, particularly whether the Oregon justices rule permits-to-purchase mandates violate the constitutional right to bear arms.

Second Amendment advocates maintain that citizens do not need permission from law enforcement to exercise a constitutionally-protected right.

Article I, Section 27 of the Oregon Constitution states, “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[.]”

This case has the potential of winding up before the U.S. Supreme Court, some gun rights advocates have suggested.

The ‘Assault Weapon’ Ban That SCOTUS Could Strike Down This Term

Last June, when the Supreme Court denied cert to a lawsuit challenging Maryland’s ban on so-called assault weapons and large capacity magazines called Snope v. Brown, Justice Brett Kavanaugh predicted that the court would take up the issue “in a term or two.” There are pending decisions in the Third and Seventh Circuits addressing similar bans in Illinois and New Jersey, but by the time the opinions are released and cert petitions are filed, it’s almost impossible that SCOTUS could accept either case and issue a decision before their summer recess in June, 2026.

There is, however, a challenge to California’s magazine ban that is already pending review by the Supreme Court. Duncan v. Bonta is slated to be considered in the Court’s November 21 conference, so that would be one vehicle for the justices to address these bans sooner rather than later. And, waiting in the wings, there’s another case out of the Seventh Circuit dealing with bans on “assault weapons” that the Court could also take this term.

Viramontes v. Cook County is a Firearms Policy Coalition/Second Amendment Foundation challenge to Cook County, Illinois’ ban on commonly owned semi-automatic firearms, and it’s been fully briefed and decided on the merits at the Seventh Circuit Court of Appeals, which upheld the ban in question. FPC and SAF filed its cert petition with the Supreme Court in late August, and Cook County’s reply is due on Wednesday, October 29.

The plaintiffs will have to file a reply brief, but that shouldn’t take too long, and it’s entirely possible that the Court could start its debate over granting cert before the end of year. If they accept the case, oral arguments would take place in the spring, and a decision could come down by the end of this term.

In their cert petition, the plaintiffs argue that SCOTUS “has frequently been solicitous of circuit court judges who are in apparent need of help in parsing this Court’s precedents,” noting that last term the Court granted cert to a case called Medina v. Planned Parenthood South Atlantic, in response to “calls for clarification” and concern from circuit judges that they “continued to lack the guidance” to implement this Court’s precedents regarding the enforceability of certain federal statutes.

Lower courts, the plaintiffs contend, are equally in need of clarification on what constitutes “arms in common use for lawful purposes” and “dangerous and unusual” weapons that fall outside the scope of the Second Amendment’s protections.

After this Court repudiated the courts of appeals’ interest-balancing regime in Bruen, courts, like the Seventh Circuit here, have expressed confusion and consternation at “what exactly falls within the scope of ‘bearable’ Arms” as a matter of plain text.

The Seventh Circuit’s reading of the Amendment to exclude arms that the court judges “can be dedicated exclusively to military use” from the scope of the term “arms” at all is just one manifestation of the confusion.

The Second Circuit very recently joined the chorus. In fact, it declined to decide whether “assault weapons” were “arms” at all, “prefer[ring] not to venture into an area in which such uncertainty abounds” when, it concluded, it could resolve the case (it thought) through application of the historical analysis.

The scope of that “uncertainty” for the Second Circuit was remarkable. It noted that it viewed “common use” as part of the plain text analysis, but it complained “the Supreme Court has not made clear how and at what point in the analysis we are to consider whether weapons are unusually dangerous.

Nor has the Court clarified how we are to evaluate a weapon’s‘ common use.’” In its view, “[t]he Court’s opinions may reasonably be read” in contradictory ways, and this “lack of clarity has led to disagreement among the parties in this case and confusion among courts generally.”

The plaintiffs go on to argue that under the Seventh Circuit’s opinion, the Second Amendment permits “anything short of a complete ban on all firearms,” except for the handguns that the Court explicitly stated are protected in Heller.

The Seventh Circuit’s test is even more toothless in this regard than the old interest balancing regime. Before Bruen, courts would at least purport to scrutinize modern laws to ensure there was some relationship between a ban and the aims of public safety. Not so here.

Under the decision below—and the circuit precedent on which it relies—“the plaintiffs” in a Second Amendment case, “have the burden of showing that the weapons addressed in the pertinent legislation are Arms that ordinary people would keep at home for purposes of self-defense, not weapons that are exclusively or predominantly useful in military service, or weapons that are not possessed for lawful purposes.” If they cannot make that showing—perhaps because precisely what is “predominantly useful in military service” is a malleable and ill-defined standard—then the restriction challenged gets no scrutiny whatsoever.

Now, I have no idea if the Court will grant cert to Duncan and Viramontes  or pass them over while the justices wait for other gun and magazine ban cases to reach their doorstep. There’s anticipation that the Third Circuit will strike down New Jersey’s ban on “assault weapons,” which would create a circuit court split that, theoretically anyway, would make the issue more compelling to SCOTUS. But the justices don’t have to wait until there’s split to take up an issue, and if the Court grants cert to both Duncan and Viramontes it can address both semi-auto and magazine bans this term instead of kicking the can down the road for another term or two.