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Ballot Measure 114 Updates February 9, 2023: Oregon Supreme Court Denies Mandamus

Ballot Measure 114 Updates 

February 9, 2023: Oregon Supreme Court Denies Mandamus

Since Ballot Measure 114 (“114”) passed by a small margin in November 2022, our office has received calls from gun-owning Oregonians all wondering the same thing: When will this go into effect? When will I have to get a permit to purchase a firearm? When will I be limited to only a 10-round magazine? Doesn’t 114 violate the Second Amendment?

The short answer is that it has NOT gone into effect, and that the courts are currently considering whether it is constitutional or not. On February 9, 2023, the Oregon Supreme Court determined that they would not overrule the decision in Harney County to stop 114. This means that the order preventing 114 from going into effect continues, and 114 stays on hold. Instead, the Oregon Supreme Court’s memorandum indicates that the trial court will continue to hear the case to determine whether 114 is constitutional. If the court finds it constitutional, it will likely go into effect while the case continues to the courts of appeal. If the court finds it unconstitutional, it will likely stay unconstitutional while the case continues to the courts of appeal. Ultimately, the Oregon Supreme Court will have the final say on whether 114 is constitutional, and it may be years before they decide the case.

Breakdown of 114

114 can be divided into three parts: (1) the permit-to-purchase requirement, (2) the background-check requirement, and (3) the large-capacity magazine restrictions.

The permit-to-purchase requirement requires an individual to obtain a permit-to-purchase a firearm from their local sheriff before they can purchase a firearm. Before you can obtain a permit-to-purchase, you must take a firearm safety class that is different from the class required to obtain a concealed carry permit. 

The background-check requirement is in place precisely to close what is called the Charleston loophole. While a background check is required to purchase a firearm under federal law, the background-check requirement does not allow a sale of a firearm to proceed if a background check is not completed three days after the attempt to purchase. If the background check is not completed within those three days, the dealer may transfer the firearm to the buyer regardless. 

Which lawsuit are we talking about?

There are two different lawsuits right now challenging 114. There is a lawsuit in state court and there is a lawsuit in federal court. The case in federal court involves the Oregon Firearms Federation, Inc., the Sherman County Sheriff, and an Oregon resident against the Governor, Kate Brown and then later Tina Kotek, and Ellen Rosenblum, the Attorney General of the State of Oregon. The case is filed in the Federal District Court for the District of Oregon and is assigned to Judge Karin Immergut.

The case in state court involves the Gun Owners of America, along with two Harney County residents, against the Governor, Kate Brown and then later Tina Kotek, and Ellen Rosenblum, the Attorney General of the State of Oregon, AND Terrie Davie, the superintendent of the Oregon State Police. The case is filed in the Circuit Court of the State of Oregon for the County of Harney and is assigned to Judge Robert Raschio. 

Both cases were filed by plaintiffs who believe 114 is unconstitutional. 

What are the arguments in the lawsuits?

Federal Court

The plaintiffs in federal court made multiple arguments against 114. They argue that 114 violates (1) the Second Amendment right to bear arms in the U.S. Constitution; (2) the Article I, section 27 right in the Oregon Constitution to bear arms; (3) the Takings Clause of the U.S. Constitution; (4) the Oregon Constitutional requirement under Article XI, section 15 that new government programs in the State of Oregon must have sufficient funding from the Legislature before a program begins; and (5) the Due Process Clause of the Oregon Constitution. 

Harney County

The Harney County plaintiffs are making a single argument:  114 violates Article I, section 27 of the Oregon Constitution. The Oregon Constitution protects Oregonians’ rights to possess firearms, but uses language different from the Second Amendment. The Second Amendment states: “A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.” The Oregon Constitution, on the other hand, states: “the people shall have the right to bear arms for the defense of themselves, and the State, but the Military shall be kept in strict subordination to the civil power.”

Because the language in the Oregon Constitution is different from the Second Amendment, the Oregon courts can take a different analysis to the right to bear arms so long as it does not infringe on rights granted by the Second Amendment. A State Constitution cannot deny rights granted by the U.S. Constitution, but it can provide protection for the same rights. For example, the U.S. Constitution includes the freedom speech, but there are some limitations to what constitutes “free speech.” In other words, the U.S. Constitution does not protect types of speech (and the analysis is long and complicated, so we won’t discuss it here). The Oregon Constitution, on the other hand, protects some types of speech that are protected by the U.S. Constitution, meaning that it protects more speech than the U.S. Constitution

So, the plaintiffs in Harney County are arguing that the Oregon Constitution provides as much or greater protection for the right to bear arms than the Second Amendment, and based on the Oregon Constitution, 114 should be struck down.

What decisions have the judges made so far? 

The federal court judge has decided that the permit-to-purchase part of 114 should be restrained and that the background check and magazine capacity parts of 114 did not merit a restraining order. But for the state court ruling, only the permit-to-purchase provision of 114 would be stayed, while the magazine limit and background check requirements would be allowed to proceed.

The state court judge has decided that all three parts of 114 require an immediate restraining order, and the State is currently prohibited by that state court ruling from implementing any part of 114.

What happens next in federal court?

As of February 9, 2023, the federal court received the Oregon Supreme Court’s denial of the writ of mandamus. The State, in turn, has requested to schedule a trial on the matter in federal court as quickly as possible to have Judge Immergut decide whether 114 is constitutional. The parties were instructed to submit calendaring and case management plans to the court. In short, the State wants to have a trial in federal court very, very soon, likely because they believe Judge Immergut will rule that 114 is constitutional.

What happens next in state court? 

Next, the Harney County court will allow both parties to present their legal arguments regarding whether all or part of 114 is unconstitutional. At this stage, even the State believes that the permit-to-purchase provision cannot be implemented correctly right now, so the State is not pushing to have that part of 114 go into effect. Instead, the State is pushing for the magazine limit and the background check provisions, and they will have to show the Harney County court that the statute is constitutional. As of February 13, 2023, the hearing has not been scheduled in Harney County.