By John McDonnell
Measure 114 Update 9/30/23
The Oregon trial on Measure 114 was held last week in Harney County. This trial is about whether or not 114 is unconstitutional under the Oregon constitution.
The majority of time was spent on arguing if magazines are a part of a firearm, and critical to operation, or if they are an accessory and not subject to protections under the Article 1 Section 27 or the Oregon constitution. There were also discussions as to how many available rounds are necessary for self-defense. All of the plaintiff’s witnesses that were asked how many rounds were necessary, replied “as many as possible”.
The wording of the measure with regard to easily modifying a magazine to accept more than 10 rounds was discussed, with multiple witnesses demonstrating, and testifying, as to the ease of removing a baseplate and adding a magazine extension or modifying so called “California compliant” magazines so that they could hold more than 10 rounds. Similar evidence was introduced regarding rifles and shotguns with internal box magazines and tubular magazines. One witness demonstrated how commonly available extensions could be added or how a common hunting rifle could be modified to hold more rounds by switching out the stock for one that could hold a box magazine of any capacity.
When it came to the issue of constitutionality of a permit to exercise a constitutional right, the state argued that states require a marriage license prior to getting married and municipalities require a permit to hold rallies and meetings in public. Therefore, according to the attorney for the state, requiring a permit to purchase a firearm was acceptable.
Oregon taxpayers are paying for eight lawyers and their staffs in this case, while the attorney for the plaintiffs, Tony Aeillo of Tyler Smith & Associates was going it alone. At the end of the trial, Judge Raschio complemented Mr. Aeillo on his professionalism and the thoroughness of his preparation and presentation. The judge has 60 days to issue a decision in the case.
This case was brought by individuals that took personal and business risks to challenge the state on our behalf. Gun Owners of America provided financial support, and it would be appropriate to support them as well.
In a similar case on the federal level, Judge Benitez with the Ninth District Court in California has issued a decision stating the California restrictions and limitations on magazines are unconstitutional. The defendants, the state of California, have appealed the decision to the Ninth Circuit, and the Ninth Circuit Court will now evaluate the decision in a full 11 member, en banc panel, bypassing their own rules for a three-member panel to hear the case before it goes to the full panel.
Although Judge Raschio, in our Oregon case, is not bound by any decision made by another court, this action is important to our OFF v Kotex appeal in federal court, as it concerns a portion of the decision in that case.
Here is a link to the Benitez decision: https://storage.courtlistener.com/recap/gov.uscourts.ca9.345123/gov.uscourts.ca9.345123.3.0.pdf?fbclid=IwAR24aNajKZIC3mrtEj3UUmL3p0a10OKFuweb1xPN0bWKPao8yqJph4kBPa0
Here is a link to the California petition to the district appeals court that relies heavily on the OFF v Kotex decision by Immergut in Portland: https://storage.courtlistener.com/recap/gov.uscourts.ca9.345123/gov.uscourts.ca9.345123.2.1.pdf
The Ninth Circuit Court of Appeals, by bypassing the normal procedure of a 3 judge panel guaranteed that the same judges who incorrectly found magazine bans to be constitutional, would once again rule on the issue. This was, as explained in this video, a naked “power grab.” Some judges were outraged by this clear effort to once again torpedo the Second Amendment. You can read their comments here as dissents in the decision.