Federal Trial Rolls On.
06.08.2023
Before we share a report of the third day of OFF’s federal trial to stop the unconstitutional Measure 114, we want to take a moment to once again send our sincere thanks to the Republican Senators who have risked so much to protect our rights and basic common sense by refusing to participate in the Democrat’s war on sanity.
By protesting the Democrat’s outrageous agenda by denying quorum, the Senate Republicans, and two Independents, (Art Robinson and Brian Boquist) have put the brakes on SB 348.
SB 348, as you know, was Floyd Prozanski’s effort to make Measure 114 even worse than it was when passed by out of state millionaires.
The Democrat propaganda machine and their mouthpieces in the media have been working non-stop to demonize the peaceful protest of the Senators who denied quorum to protect the minority, even as they continue to pretend to want to protect the rights of minorities.
So please take a moment to send a word of thanks to Senate Republican Leader Tim Knopp and ask him to share your appreciation with his fellow Senators.
At the trial we face a number of challenges. As you may know the Judge has declared that she will not hear arguments about the constitutionality of Measure 114 as applied. Her position is that the issue is “not ripe” because no one has yet been harmed by the measure. Of course, the only reason no one has been harmed yet is because a state judge in Harney County, in a separate decision, placed an injunction on the measure. So it cannot go into effect until after a full trial in State Court which we expect to happen in September.
Needless to say, if the measure takes effect, thousands of Oregonians will be denied their rights to acquire firearms legally, countless gun stores will be out of business and untold numbers of hard working Oregonians will lose their jobs. The judge has noted that we are free to bring another lawsuit at that time at enormous expense while the state gets to pay their many lawyers…with your money.
The state has taken several positions that are, on their face, ridiculous.
They have claimed that the magazines they seek to ban (virtually all magazines) are not protected by the Second Amendment because they are not “arms” they are “accessories”. This is patently absurd. Flashlights are “accessories.” Magazines are components. Without a magazine no magazine fed firearm could function as intended. To take the position that these devices are not protected would be to say that stocks, bolts, and trigger groups are “accessories” and can be banned by the whim of the legislature or uninformed voters.
As we have pointed out, because the measure calls for the banning of any magazine that can be converted to hold more than 10 rounds, it would ban almost all magazines rendering modern firearms useless. (They very goal of the state and the measures proponents.)
The state is also contending that the “permit to purchase” scheme is constitutional because it is “shall issue” and “shall issue” permit schemes are allowed under the Bruen decision. But this is clearly false.
First of all, there is nothing in the measure that compels any police agency to issue permits. They “may” but it’s not required. Some sheriffs have already stated they will not issue permits because they simply lack the resource and facilities to do so. Keep in mind, that if the police in your county cannot issue, your ability to purchase a firearm is gone. You may not apply in any other county.
But beyond that, no sheriff can legally issue a permit anyway. The measure requires that the FBI conduct a fingerprint check. The FBI has flatly stated they will not do so. So there is no legal way for the sheriff or your local police to comply.
No permit can be “shall issue” when the permitting agent cannot issue.
While our witnesses and attorneys have done an amazing job of making these points, it remains to be seen if the judge is seeing the obvious contradictions.
The state has been relying on “expert witnesses” who are attempting to prove that early firearms do not have the capacity of modern firearms. Why you need “expert” witnesses to prove this is hard to understand. But the notion that our constitution only protects things in existence 200 years ago is odd when the argument is taking place in a courtroom filled with computers and flat screen TV’s, fed by the internet, and protected by metal detectors.
John McDonnell is an OFF volunteer who has been in court every day. If you have been to a gun show recently you may have met John at an Oregon Firearm’s table. If you meet John at a show please be sure to thank him for his tireless efforts and activism.
What follows is John’s observation of yesterday’s proceedings. We expect closing arguments to be tomorrow.
Day 3 of Measure 114 Federal trial – June 7th, 2023
Update from OFF volunteer John McDonnell
The defense (state of Oregon) is still calling their witnesses. First witness, historian Dr Delay testified on the evolution of repeating firearms throughout the 1800’s.
Although interesting, not much new information that others had not already spoken of including development of repeating rifles by Winchester and Henry.
Through 1860, there were few lever action rifles with internal magazine capacity greater than ten rounds.
They all of a sudden jump to number of rounds fired during the Virginia Tech and Las Vegas shootings pointing out that there were more deaths when repeating firearms with greater than 10 rounds available in a magazine.
It appears that they are making the case that, absent changes in science, technology, and manufacturing, there would be fewer deaths by gunfire.
The only redeeming concept was a nod to John Moses Browning and his revolutionary design. Colt thought it was a gimmick, so Browning sold his idea of the 1911 to FN.
Next witness was another historian, this one with a PHD from Yale. His testimony was another history lesson about militias and the arms they possessed.
His information came from probate records of the period. Yes, you heard that right. Information on amounts and types of firearms from around the 1740s to 1798 was based on probate records. He did point out that most private firearms owned were “fowlers.”
These firearms were lighter, smaller caliber, and cheaper than smooth bore muskets or rifled barrel long guns. His final point was about the rate of fire with rifles and muskets being a max of 3 rounds per minute.
During cross examination, he testified that the concept of militia during the revolution being civilian volunteers was incorrect. He also is adamant that the Heller decision is wrong. The only redeeming value to his testimony was, while demonstrating how to load and fire a musket, he pointed his pretend firearm at the judge and then apologized to her. Another “expert” paid for with your tax dollars.
Third witness is being paid $1,150/hr of our money. Seems the majority of her research was verifying the NRA Armed Citizen Database. She used some of the most powerful analytics available and still came up with the same numbers as the NRA. Good thing we spared no expense to verify publicly available statistics.
During cross, she also admitted that she doesn’t think anyone except military and law enforcement should have guns that can contain over 10 rounds. She also admitted that she didn’t try to verify that a previous plaintiff had stated that he used 13 rounds in a self defense situation. The lawyer for the defense kept insisting that, since there was no police record or newspaper reports of the incident (since they didn’t look for any) that his testimony is in question.
Next witness spoke about how dangerous objects such as Bowie knives, dirks, sword canes, and pistols were regulated at times in history. The regulations she cited were all related to concealed carry.
Last one was a professor of English and linguistics. There was a boring discussion of what words meant in the 18th and 19th centuries. The point was to prove that cartridge box was an accessory. They quite clumsily tried to make the point that cartridge boxes and pouches were the same as magazines and not part of a firearm.
They found a single newspaper article from the mid 1960’s about an early machine gun. In the article, the author stated that the cartridge box was moved to the breach of the barrel for self-loading and it was therefore a magazine. And so, voila, a modern magazine is the same as a cartridge box or pouch and thus not a part of the firearm.
During the cross, it was revealed that the witness was upset that his testimony in front of SCOTUS during Heller was rejected. He was also upset that SCOTUS ignored his brief during the Bruen case.
The Kavanaugh opinion from Bruen was brought up. The defense seemed to insinuate that Kavanaugh’s opinion that permits could be issued for carry outside the home, somehow applied to permit to purchase. We’ll see how that goes.
The defense is expected to continue with testimony from their witnesses all day tomorrow.
In the mean time, when the discussion of Tina Kotek keeping your kicker comes up, think of just how much of your money the state is spending on these “expert” witnesses.
