Oregon’s gun control Measure 114 gets federal court test

FILE - Firearms are displayed at a gun shop in Salem. A federal judge in Portland is hearing arguments on the constitutionality of Measure 114, a strict gun control law passed by Oregon voters in November. The trial opened Monday, June 5, 2023. AP Photo/Andrew Selsky, FileAP

A local sheriff, two firearms dealers and an ammunition sales executive were the first to testify Monday about preferences for magazines that hold more than 10 rounds of ammunition as a federal trial began into whether Oregon's voter-approved gun control Measure 114 meets constitutional muster.

Measure 114 calls for a permit to buy a gun, a ban on the sale, transfer and manufacture of magazines holding more than 10 rounds and the completion of a criminal background check before any sale or transfer of a gun.

The trial is scheduled to last five days and focus on whether the gun control regulations are constitutional under the Second Amendment -- and not whether the restrictions will be lawful as applied in Oregon if the stalled measure ever takes effect.

Attorney Daniel Nichols, representing the Oregon Firearms Federation, Oregon State Shooting Association, the National Shooting Sports Foundation, several rural sheriffs and others, said the case is about the right to bear arms under the Second Amendment, the right to be free "from the taking of property without just compensation" and the right to understand the law.

Nichols and witnesses for the gun rights groups argued that what the measure and the state refer to as large-capacity magazines are really standard-capacity magazines in common use today. They stressed that more than 100 million people have owned magazines that hold more than 10 rounds since 1990 and have them for the lawful purpose of self-defense.

Lawyers for the state countered that magazines aren't considered arms but accouterments to firearms and that it's extremely rare to fire more than 10 rounds in any self-defense situation.

They plan to call experts who will testify that large-capacity magazines instead are prevalent in mass shootings and can be regulated because of the increased harm they cause.

"Governmental regulations over the past 250 years have been designed to address weapons technology responsible for significant violence," attorney Erin Dawson, hired for the state, said in her joint opening statement.

Attorney Hannah Hoffman, another outside lawyer hired for the state, said an average of 2.2 rounds have been fired nationally and 1.3 rounds fired in Oregon in self-defense situations.

Sherman County Sheriff Brad Lohrey, one of the named plaintiffs, said he wants to continue to be able to protect his family with large-capacity magazines when he retires. He said he started shooting guns as soon as he could walk and has served for 23 years as sheriff of the rural county.

"I wish to carry more than 10 rounds and I wish to purchase them in the future," he said, testifying in uniform. "That's my family and it's my friends. I’ve honorably protected them for 30 years, and I don't want to stop protecting them."

He also wants the 1,900 people living in Sherman County, served by six deputies and him, to be able "to purchase whatever firearm they want."

Jessica Harris, operational manager of G4 Archery Outdoors store in North Plains, said her "self-defense" customers typically are "buying things with as many rounds as possible."

If Measure 114 takes effect, her shop would be forced to liquidate its existing magazines by selling them out of state, causing a dramatic drop in profit, she said.

She also testified that she once showed a gun when a road-rage driver followed her and then banged on her car window. When she raised her gun, the stranger retreated, she said. The gun had a 13-round magazine but she didn't fire it in the encounter, she said.

As a hiker and outdoors enthusiast, Harris also said she has heard that it would take more than 10 rounds to put down a bear. During cross-examination, she acknowledged she had no personal knowledge of how many gunshots it would take to stop an attacking bear.

Both Harris and Adam Johnson, owner of Coat of Arms Firearms in Keizer, acknowledged that sales increased at their stores after voters approved Measure 114 last November. Johnson said it was the result of a "panic buy."

Johnson testified that he fired 13 rounds while working private security in an Indiana convenience store robbery in May 2006. He said the armed robber fired twice at him before Johnson was able to pull his gun out of its holster. No charges were filed against him, he said.

"I’m alive because I had enough rounds to finish a gunfight," he said.

U.S. District Judge Karin J. Immergut, who in December declined to halt the new Oregon regulations before a state judge put them on hold in a separate case, outlined the questions before her now:

Based on last summer's U.S. Supreme Court ruling in a New York case, is Oregon's permit-to-purchase plan considered a "shall-issue" licensing practice consistent with the history of firearms regulation or does it violate due process rights by preventing people from exercising a fundamental constitutional right?

A "shall issue" permit scheme is one in which "a general desire for self-defense" is sufficient to obtain a permit, based on "narrow, objective and definite standards" that guide those issuing permits, such as a background check or firearms safety course, rather than allowing an "exercise of judgment" or "formation of an opinion," Immergut wrote in an outline of the main trial questions.

In considering the measure's ban on 10-round-plus magazines, Immergut will determine: Are such magazines "bearable arms" or are they "dangerous and unusual" weapons not protected by the Second Amendment?

Further, the judge said she will evaluate whether such magazines are "in common use today for lawful purposes such as self-defense," whether the restriction on the magazines is "consistent with the historical tradition of firearm regulation," whether the magazines or something similar existed at the time of the country's founding or during the Reconstruction Era from 1865 to 1877 after the Civil War.

Immergut said she also will determine if the regulation of large-capacity magazines reflects "unprecedented societal concerns" or "dramatic technological changes."

For example, is there a link between large-capacity magazines and mass shootings, and if so, does that represent an "unprecedented societal concern" different from societal concerns at the time of the country's founding or does the regulation impose an unconstitutional burden on someone's right to self-defense?

The judge also will consider whether the magazine restriction violates someone's due process, if it's retroactive and does it provide "fair notice" of what's prohibited.

The Oregon Alliance for Gun Safety, which helped promote Measure 114 and is an intervenor in the case, plans to call Jenna Longenecker, whose mother, Cindy Yuille, was killed during the 2012 mall shooting at Clackamas Town Center and whose father, Michael Passalacqua, died by suicide with a gun four years later after struggling with depression over his wife's violent death. Longenecker is now married with a daughter and works to support gun safety regulations.

The alliance chose to intervene in the federal court case and not the challenge pending in state court because it anticipates Immergut's ruling, whichever way it lands, likely will be appealed and could ultimately end up before the U.S. Supreme Court.

Judges in six other federal district courts have rejected challenges to large-capacity magazine regulations, said Zachary Pekelis, an attorney for the alliance.

Interpretation of the Second Amendment is rapidly evolving since the Supreme Court ruling in the New York case.

The ruling struck down a New York law that placed strict limits on carrying guns outside the home. The 6-3 majority directed lower courts to use a new "text-and-history" standard when evaluating challenges to gun regulations. Courts must determine whether "the Second Amendment's plain text" protects the conduct in which the plaintiff wishes to engage and, if it does, then decide if the regulation "is consistent with this Nation's historical tradition of firearm regulation."

The ruling "left open a whole lot of issues involving restrictions on guns," Douglas N. Letter, chief legal officer for Brady United, said during a virtual news conference last week.

"We are now developing so much of the case law," he said.

In court Monday afternoon, Mark Hanish, a competitive shooter who worked as a gun sales executive for several companies and now is vice president of sales for the Arizona-based Timney Triggers magazine manufacturer, testified for the plaintiffs that magazines holding more than 10 rounds are standard.

"That's what all the guns come with, that's what they’re made with, that's what they’re originally designed with," he said.

During cross-examination, Hanish acknowledged that he holds over $1 million in stock in the company, Ammo Inc., and has worked more than 18 years for companies that sell large-capacity magazines.

After Hanish testified that he supported the sale of 100-round magazines to civilians, Senior Assistant Attorney General Brian S. Marshall presented Hanish with photos of 14 stacked Surefire magazines, either 60- or 100- round magazines, in the hotel room of the gunman in the Oct. 1, 2017, Las Vegas massacre, the deadliest mass shooting in the United States. A 64-year-old Nevada man opened fire from a room at the Mandalay Bay Resort and Casino, spraying more than 1,000 bullets on people attending a music festival across the street, killing 60 and wounding more than 400 people.

Hanish worked as a sales executive for Surefire from 2016 through 2018. He said it didn't appear that the rounds photographed by police had been used.

"Do you think that Surefire magazines were used in the deadliest mass shooting in U.S. history ?" Marshall asked.

"From these pictures, yes," Hanish said.

Attorney Scott Ferron, representing the gun safety alliance, pulled up Surefire's website, which advertises high-capacity magazines for sale, among other gun accessories.

Under a photo of a helmeted man holding a high-powered rifle, the site says: "Surefire high-capacity magazines are designed to help our warfighters win. They deliver twice the violence of action and half the required reload providing a crucial edge in any firefight."

Ferron asked Hanish if he approved of Surefire's marketing of high-capacity magazines to civilians and if he considered it reasonable.

In self-defense, "it does afford them the advantage," Hanish said.

"Yes, it's a dual-use product," he said, adding that he doesn't currently work at the company.

Hanish's wife Ashley Hlebinsky testified after her husband. While a lawyer for the plaintiffs described her as a firearms historian in his opening statement before she was called to testify about the earliest guns in the United States, she later acknowledged during cross-examination she doesn't have a doctorate degree nor is formally a historian.

Hlebinsky said she previously was a curator in charge of the Cody Firearms Museum, where she managed a collection of around 7,000 firearms from the 1200s through modern day. She also testified that she co-founded and is now a senior fellow for the University of Wyoming College of Law's new Firearms Research Center.

During cross-examination, Pekelis, the lawyer for the gun safety alliance, pointed out that the center strives to be the "premier law school for practitioners who serve legal needs of all those who produce, employee, own and regulate firearms.’’ The center has received most of its money from private donors and firearms companies, recently auctioned off guns, rifles and firearm accessories to raise money for the center and often criticizes gun control legislation around the country on its Twitter page.

Hlebinsky testified that the $12,000 raised from the auction will be used for suicide prevention.

Also under questioning from Pekelis, she acknowledged she did do consulting work in 2017 for Daniel Defense, the maker of the AR-15 rifle used in the May 2022 Uvalde, Texas, elementary school shooting that killed 19 students and two teachers and injured another 17. Hlebinsky said her work was to help Daniel Defense build a firearms museum. She also acknowledged she's a lifetime NRA member, has appeared multiple times on Gun Freedom Radio and was a guest speaker at a recent Celebrate Second Amendment rally at the Arizona State Capitol.

-- Maxine Bernstein

Email [email protected]; 503-221-8212

Follow on Twitter @maxoregonian

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