A three-judge panel of the Oregon Court of Appeals has ruled unanimously that anti-gun Measure 114, approved by voters in November 2022, does not violate the state constitution.
The controversial measure barely passed and was immediately challenged in both state and federal court. In 2023, Harney County Circuit Judge Robert Raschio ruled the measure violated the state constitution. Oregon quickly appealed, and in the interim, provisions of the measure have been put on hold.
Reacting to the ruling, according to Oregon Public Broadcasting, was attorney Tony Aiello, Jr., representing gun rights plaintiffs in the case.
“Today Measure 114 has turned millions of Oregonians into criminals because their right to bear arms has been erased by Oregon’s Judiciary,” said, Aiello, a senior associate at Tyler Smith & Associates, P.C., in a prepared statement. “We intend to appeal this ruling to the Oregon Supreme Court and call on Oregonians for their continued support of this litigation.”
Kevin Starrett, head of the Oregon Firearms Federation, noted via email the process will be costly. Starrett told AmmoLand, “The ruling was not unexpected.”
“What was unexpected,” he stated, “was the absolutely tortured and nonsensical judicial reasoning behind it.”
Starrett pointed to a passage on Page 8 of the 25-page ruling, in which Judge Darleen Ortega, writing for the court, quoted an earlier ruling in which it was stated, “The [facial] constitutionality of a law as enacted is rarely if ever dependent on facts, least of all on the kind of facts denominated as ‘adjudicative facts’ in the Oregon Evidence Code (Rule 201(a)) and subject to being proved by evidence. This is so because almost all laws are written to govern numerous concrete situations under circumstances that may change over time.”
On the other side of the issue, Jess Marks, executive director of the Alliance for a Safe Oregon, also issued a statement, quoted by OPB, declaring, “This victory goes to the Oregonians who, concerned about the safety of their families and communities, collected signatures, knocked on doors and voted for a safer future. We’re grateful that the Court of Appeals has heard our voices and examined the undeniable research and evidence to reach the conclusion that Measure 114 will save lives.”
As explained by KGW News, Measure 114 includes the following:
- It requires a permit to acquire guns, which gun rights activists vehemently oppose, insisting that nobody should be required to get permission from the police to exercise a fundamental, constitutionally-protected right. To obtain a permit, an individual must pass a criminal background check, complete a gun safety course, and not be a danger to themselves or others.
- It closes the so-called “Charleston Loophole,” which allows firearm transfers to proceed if a background check takes more than three days, which is the traditional 72-hour waiting period in federal law.
- It limits magazine capacity to 10 rounds for private citizens, while exempting law enforcement and the military from the restriction.
Separately, U.S. District Court Judge Karin Immergut, a Donald Trump appointee (first term), ruled in the federal court challenge that the measure is constitutional under the U.S. Second Amendment. In that ruling, which is now on appeal to the Ninth U.S. Circuit Court of Appeals in San Francisco, that large-capacity magazines “are not commonly used for self-defense, and are therefore not protected by the Second Amendment.”
In her Wednesday ruling, Judge Ortega observed, “We first observe that the permit-to-purchase program and point-of-transfer background check is not a total ban on obtaining firearms for self-defense. Persons who meet the qualifications for a permit and do not have any disqualifying criminal convictions may obtain a firearm”
Elsewhere, Judge Ortega reasons, “We also conclude that the permit-to-purchase program and point-of-transfer background check do not unduly frustrate the right guaranteed by Article I, section 27. Article I, section 27, does not provide an absolute right, but a right to armed self-defense that is subject to the wide latitude of the legislature “to enact specific regulations restricting the possession and use of weapons to promote public safety.” …We are not persuaded that requiring a permit-to-purchase and passing a criminal background check—even if complying with those regulations causes a delay in obtaining a firearm—would render Measure 114 unconstitutional under all circumstances. To the contrary, when the measure is executed as the text of the measure contemplates, it will not unduly frustrate the Article I, section 27, right to armed self-defense because a qualified individual will be able to obtain a firearm for the purposes of self-defense. Article I, section 27, does not confer the right to obtain a firearm immediately in all circumstances; it is a right to defend oneself using constitutionally protected arms.”
Judge Ortega was joined by Judges Josephine H. Mooney and Kristina Hellman.
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