A California ruling that the state cannot bar gun owners from having detachable magazines that hold more than 10 rounds has given Oregon litigants optimism about overruling a similar ban in that state.
The California case closely mirrors litigation over Oregon’s voter-approved Ballot Measure 114.
In addition to requiring buyers to obtain a permit to purchase a firearm, the measure also bans magazines that are capable of holding, or being modified to hold, more than 10 rounds.
Measure 114 has been in litigation in both federal and state court since November 2022.
The Impact of Bruen
The landmark Brien decision requires that firearm regulations don’t impede on the language of the Second Amendment and be “consistent with this Nation’s historical tradition.”“Previously, [the courts] had employed a balancing test basically asking whether the state’s interest in regulating firearms outweighed the burden on gun owners’ rights,” explained Willamette University constitutional law professor Norman Williams in a recorded interview published on Oregon Public Broadcasting.
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“But in the Bruen case, the court announced a historical approach that, going forward, burdens on gun owners’ rights were not justified unless the government could point to a law in 1791—the time the Second Amendment was ratified—that was comparable to the law under review,” he continued.
In his Sept 22 decision, U.S. District Judge Roger Benitez ruled that California’s ban on such magazines fails to meet that standard and that “there is no national tradition of prohibiting or regulating firearms based on firing capacity or ammunition capacity.”
“The history and tradition of the Second Amendment clearly supports state laws against the use or misuse of firearms with unlawful intent, but not the disarmament of the law-abiding citizen,” he continued.
The Oregon Connection
Judge Benitez’s reasoning is the opposite of that applied by Federal Judge Karin Immergut following a June trial on the Oregon measure.She ruled that it was constitutional to ban Oregon gun owners from possessing “large capacity” magazines.
Most of the focus in that trial was on whether the ban on firearm magazines was analogous to gun regulations in the past.
In her 122-page opinion, Judge Immergut concluded that the Second Amendment doesn’t bar the government from adopting new regulations that respond to new technologies like "assault weapons" or large-capacity magazines.
“She very much limited her consideration to whether—on its face—it was a violation of the Second Amendment,” Mr. Williams explained.
Plaintiffs in the Measure 114 federal case have appealed Judge Immergut’s decision to the Ninth Circuit Court of Appeals.
That court could take about a year to issue its decision, Mr. Williams said.
“This is an issue that I think the U.S. Supreme Court will ultimately be interested in and take up. That could be several years away,” he concluded.
Mr. Williams thinks it’s likely that the ban on high-capacity magazines will be found by the U.S. Supreme Court to be unconstitutional.
“The current six-justice conservative majority, which struck down New York’s concealed carry permit requirement in the Bruen case, very much announced its intention to be very protective of gun owners’ rights and to be very rigorous in how it looks at the history of firearms regulation.”
He went on to forecast the Supreme Court’s decision.
“The U.S. Supreme Court typically takes cases with an eye to reversing them.”
That proves true in about 70 percent of cases, he said.
The court “doesn’t see the point in kind of applauding a lower court that got it right. It sees its role as reversing lower courts that get it wrong.”
Measure 114 plaintiffs are optimistic.
“This is very positive news for our ongoing efforts to reverse this dangerous and malicious law that barely passed with the help of out-of-state millionaires,” wrote plaintiff Kevin Starrett of the Oregon Firearms Federation.
Meanwhile, a second trial on Measure 114 is expected to wrap up this week.
The trial in Harney County Circuit Court challenges the measure on the grounds that it violates the state’s constitution.
“The trial judge in Harney County concluded last December that he thinks it more likely than not that Measure 114 violates the Oregon Constitution’s protection of the right to bear arms,” Mr. Williams explained. “It’s highly unlikely that he’s going to reverse himself.”
For Measure 114 to survive, the state must win in both the federal and the state courts. Gun rights advocates only have to prevail in one of these cases for the measure to be struck down.
