In the aftermath of Thursday’s much-anticipated Oregon Supreme Court hearing on gun control Measure 114—which bans cartridge magazines that hold more than ten rounds and requires a permit from the police in order to purchase a firearm—plaintiff’s attorney Tony Aiello told reporters the justices “asked the right questions,” according to the Oregon Capital Chronicle.
The full hearing, which may be viewed here, lasted an hour, and Aiello came prepared for what might be considered the fight for the life of Article 1, Section 27 of the Oregon Constitution. That tenet states, “The people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]”
There is no indication when the seven-member court panel will hand down a ruling.
Much attention was paid to the constitutionality of banning so-called “large-capacity magazines,” which Oregon Senior Assistant Attorney General Robert Koch noted did not exist at the time Oregon achieved statehood and adopted its constitution, on Feb. 14, 1859.
But Aiello reminded the justices that, “Cars, Twitter and blood alcohol tests also didn’t exist in 1859. The fact of the matter is the Constitution of Oregon, and the United States applies to things that did not exist when the document was written.”
During rebuttal, when he was quizzed by Justice Rebecca A. Duncan about the underlying principles, “the goals and objectives of the people who drafted Article 1, Section 27?”
Aiello’s reply was matter of fact.
“The ultimate goal of any right to bear arms,” he replied, “is the ability to repel a tyrannical government. There’s also state defense, there’s also self-defense, defense of others…the exigencies of rural living, protecting your livestock and family from predators, be they wolves, bears, cougars, people; those are all encompassed within the right to bear arms.”
As noted by KGW, the Oregon Senate Republican Caucus has called Measure 114 “unconstitutional and deeply flawed.” Where the permit-to-purchase is considered, Senate Republicans, and opponents of Measure 114, contend the permit requirement creates “unnecessary barriers” for law-abiding gun owners, or people who want to become gun owners, especially those of limited financial means.
To underscore this argument, Aiello told the justices that Measure 114 doesn’t specify costs, which would apply to the training portion requiring live fire.
“To the extent it matters,” he said, “I took one last Saturday and it was $200.”
Koch argued more from the public safety perspective than from the historical perspective, although his argument did refer to the legal principle and framework of the right to bear arms going back to the founding era.
He may have run into trouble when he noted Measure 114 restricts large-capacity magazines “and nothing like a large capacity magazine was common at the time of statehood. It was certainly not commonly used for self-defense.”
At that point, Chief Justice Meagan A. Flynn interrupted.
“If I understand your brief,” Flynn queried, “you acknowledge that weapons that range from four to eight repeating shots were common for self-defense?”
When Koch replied to the affirmative, Flynn continued, “And so your argument is premised on eleven being significantly different from eight?”
Koch relied: “Uh, yes.”
And Koch continued, “It’s significantly different for the technological reasons why that was not commonly used for self-defense. They didn’t really exist at the time. And it’s also significant because of the public safety risks that are posed by magazines of larger than ten rounds.”
A moment later, he contended, “The restrictions here reasonably promote public safety without unduly frustrating armed self-defense.”
It is that position which might ultimately collide with the U.S. Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen, although the Oregon case is specifically aimed at whether Measure 114 violates the Oregon State Constitution. Challengers say it does, and the state contends it does not. And this will be the arena in which Oregon’s justices decide the case.
As Koch noted in his argument, “We think the large-capacity magazine restrictions are facially constitutional for the separate reason that they’re not protected arms.”
This may be the threshold the state must cross, and both sides will be awaiting the court’s ruling. As noted by KGW, that decision “will mark a major moment for Oregon — and possibly for other states testing the limits of new gun laws after the U.S. Supreme Court’s 2022 Bruen decision expanded gun rights nationwide.”
Gun rights groups and the gun prohibition lobby will both be watching for the Oregon ruling, which will likely have ramifications far beyond the Oregon borders.
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About Dave Workman
Dave Workman is a senior editor at TheGunMag.com and Liberty Park Press, author of multiple books on the Right to Keep & Bear Arms, and formerly an NRA-certified firearms instructor.
