{"id":88637,"date":"2022-12-14T09:44:17","date_gmt":"2022-12-14T15:44:17","guid":{"rendered":"https:\/\/milesfortis.com\/?p=88637"},"modified":"2022-12-14T09:44:17","modified_gmt":"2022-12-14T15:44:17","slug":"88637","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=88637","title":{"rendered":""},"content":{"rendered":"

Oregon judge signals more trouble ahead for Measure 114<\/a><\/p>\n

Oregon\u2019s ban on \u201clarge capacity\u201d magazines and the state\u2019s \u201cpermit-to-purchase\u201d scheme remain on hold for now after a hearing in rural Harney County on Tuesday, with the judge who originally granted a restraining order against the anti-gun ballot measure telling both sides in a court challenge to the new restrictions that he\u2019ll issue a formal ruling on a request for an injunction by this Friday.<\/p>\n

Harney County Circuit Judge Robert S. Raschio did say during the hearing, however, that the permit-to-purchase portion of Measure 114\u00a0will not take effect<\/a>, at least until the state can prove that the system is fully operational and won\u2019t result in residents being unable to exercise their right to acquire a firearm for self-defense.<\/p>\n

\u201cAny complete bar on the ability to secure a firearm would be unconstitutional even under strict scrutiny,\u201d said Harney County Judge Robert Raschio on Tuesday morning.<\/p>\n

The order was also the precursor to several hours of oral arguments and witness testimonies about whether the judge should place a preliminary injunction against ballot Measure 114\u2019s ban on high-capacity magazines. While Judge Raschio made no formal decision on that proposed injunction Tuesday, he said he would issue an opinion no later than Friday, Dec. 16 at noon.<\/p>\n

Altogether, Tuesday\u2019s court hearing marked an eventful day for gun advocates in Oregon, many of whom tuned-in to the district court\u2019s live feed to witness the marathon hearing about why the judge should or should not issue a preliminary injunction against Oregon\u2019s ballot Measure 114.\u2026<\/p>\n

It was a different story for the issue of magazine capacity, however, discussion of which occupied another six hours in court Tuesday.<\/p>\n

Plaintiffs largely argued that by capping magazines to 10 rounds and including restrictions on the use of extenders and removable baseplates, the state has essentially made it impossible to purchase legal firearms in Oregon from gun manufacturers. To prove a point, attorney Tony Aiello called upon firearm dealer Ben Callaway as an expert witness, who said online vendors like MidwayUSA or Zanders Sporting Goods no longer ship firearms to Oregon if they can be modified to hold more than 10 rounds.<\/p>\n

Yet, the real challenge for the groups was to prove that guns with a 10-round capacity or more were commonly used for self-defense in 1859, a requirement made by Oregon Supreme Court\u2019s protection of the right to bear arms. But while expert witnesses from both sides of the injunction agreed that multi-shot firearms existed around that time, there was disagreement as to whether these weapons were of common use.<\/p><\/blockquote>\n

The availability of multi-shot firearms in 1859 shouldn\u2019t be the determining factor in whether or not they\u2019re protected by the Second Amendment. As the Supreme Court noted in the\u00a0Caetano<\/a><\/em>\u00a0case, arms that are in common use today but weren\u2019t around at the time of the Founding are still protected by the text of the Second Amendment.<\/p>\n

The Court has held that \u201cthe Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding<\/strong>,\u201d\u00a0District of Columbia<\/em>\u00a0v.\u00a0Heller<\/em>, 554 U.\u00a0S. 570, 582 (2008) , and that this \u201c Second Amendment right is fully applicable to the States,\u201d\u00a0McDonald<\/em>\u00a0v.\u00a0Chicago<\/em>, 561 U.\u00a0S. 742, 750 (2010) . In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining \u201cwhether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.\u201d 470 Mass. 774, 777, 26 N.\u00a0E.\u00a03d 688, 691 (2015).<\/p>\n

The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they \u201cwere not in common use at the time of the Second Amendment\u2019s enactment.\u201d\u00a0Id.,<\/em>\u00a0at 781, 26 N.\u00a0E. 3d, at 693. This is inconsistent with\u00a0Heller<\/em>\u2019s clear statement that the Second Amendment \u201cextends .\u00a0.\u00a0. to .\u00a0.\u00a0. arms .\u00a0.\u00a0. that were not in existence at the time of the founding.\u201d<\/strong>\u00a0554 U.\u00a0S., at 582.<\/p>\n

The court next asked whether stun guns are \u201cdangerous per\u00a0se at common law and unusual,\u201d 470 Mass., at 781, 26 N.\u00a0E.\u00a03d, at 694, in an attempt to apply one \u201cimportant limitation on the right to keep and carry arms,\u201d\u00a0Heller<\/em>, 554 U.\u00a0S., at 627; see\u00a0ibid.<\/em>\u00a0(referring to \u201cthe historical tradition of prohibiting the carrying of \u2018dangerous and unusual weapons\u2019\u00a0\u201d). In so doing, the court concluded that stun guns are \u201cunusual\u201d because they are \u201ca thoroughly modern invention.\u201d 470 Mass., at 781, 26 N.\u00a0E.\u00a03d, at 693\u2013694.\u00a0By equating \u201cunusual\u201d with \u201cin common use at the time of the Second Amendment\u2019s enactment,\u201d the court\u2019s second explanation is the same as the first; it is inconsistent with\u00a0Heller\u00a0<\/em>for the same reason.<\/strong><\/p>\n

Finally, the court used \u201ca contemporary lens\u201d and found \u201cnothing in the record to suggest that [stun guns] are readily adaptable to use in the military.\u201d 470 Mass., at 781, 26 N.\u00a0E.\u00a03d, at 694. But\u00a0Heller<\/em>\u00a0rejected the proposition \u201cthat only those weapons useful in warfare are protected.\u201d 554 U.\u00a0S., at 624\u2013625.<\/p>\n

For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court\u2019s precedent.<\/p><\/blockquote>\n

What the court should actually be looking for are\u00a0statutes<\/em>\u00a0in place at the time of Oregon\u2019s founding that are historical analogues to the ammunition capacity restriction the state wants to put in place today, and I don\u2019t think anything like that exists. I\u2019m not aware of any state law or even a local ordinance in the state that barred the carrying or possession of revolvers or other multi-shot firearms at the time the state constitution was approved, and given that these types of bans are modern inventions of the anti-gun lobby, I suspect that finding a 19th century analogue is going to be difficult\u2026 at least without stretching the bounds of credulity as U.S. District Judge Karen Immergut did when she\u00a0upheld the magazine ban<\/a>\u00a0in a federal lawsuit filed by the Oregon Firearms Federation and several county sheriffs.<\/p>\n

With Rashcio pledging to deliver his ruling on the request for an injunction against Measure 114 by noon Pacific time on Friday, we won\u2019t have too long to wait before we learn whether the magazine ban can take effect, though if Raschio does impose an injunction the state will appeal once again to the state Supreme Court. That body has already declined to overturn Raschio\u2019s initial restraining order against Measure 114, however, and if Raschio keeps the status quo in place while the constitutionality of Measure 114 is being litigated there\u2019s a very good chance the state\u2019s highest court will do the same.<\/p>\n","protected":false},"excerpt":{"rendered":"

Oregon judge signals more trouble ahead for Measure 114 Oregon\u2019s ban on \u201clarge capacity\u201d magazines and the state\u2019s \u201cpermit-to-purchase\u201d scheme remain on hold for now after a hearing in rural Harney County on Tuesday, with the judge who originally granted a restraining order against the anti-gun ballot measure telling both sides in a court challenge … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,50,8],"tags":[],"class_list":["post-88637","post","type-post","status-publish","format-standard","hentry","category-courts","category-goobermint","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/88637","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=88637"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/88637\/revisions"}],"predecessor-version":[{"id":88638,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/88637\/revisions\/88638"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=88637"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=88637"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=88637"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}