A Harney County judge Tuesday granted a temporary restraining order against all provisions of Oregon’s gun control Measure 114.
Harney County Circuit Judge Robert S. Raschio’s order came three hours after a federal judge allowed the measure to take effect as planned with a 30-day delay in the provision that requires a permit to buy a gun.
UPDATE: Oregon Measure 114, now temporarily on hold, sparks two court rulings on one day
The Harney County case was brought by Gun Owners of America, a Virginia-based nonprofit, its legal defense fund Gun Owners Foundation and two Harney County gun owners. Unlike the federal case, their suit in Harney County challenged Measure 114 under Oregon’s constitution, so the federal judge’s ruling has no bearing on Raschio’s order.
“His order is separate and binding,” said Steve Kanter, dean emeritus at Lewis & Clark Law School.
While there has been “relentless news about mass shootings and slaughter of innocents,” Raschio said the Gun Owners of America had shown that putting Measure 114 on hold will maintain the “status quo” until the court can determine in a more in-depth hearing for a preliminary injunction whether the measure meets constitutional muster under Article 1, Sec. 27 of the Oregon Constitution.
That article says, “The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]”
The county judge found that the public interest weighs against the measure’s implementation at this time, and set a hearing for Dec. 13 on a preliminary injunction.
“With implementation, there are serious harms to the public interest as well, which could include individuals being arrested and prosecuted for Class A misdemeanors under what could be found to be an unconstitutional statutory scheme,” Raschio ruled from the bench. “And that potential could happen if Ballot Measure 114 is allowed to go into effect without significant judicial scrutiny. And, certainly no one would argue that individual liberty is not a cornerstone of our country. First the people, then the state.”
Senior Assistant Attorney General Brian Simmonds Marshall urged Raschio to put a hold on his temporary order, but Raschio refused. He said his order will bar Measure 114′s gun control limits from going into effect as of 12:01 a.m. on Thursday.
The measure, which passed by 50.7% of votes, calls for a permit to buy a gun; ban on the sale, transfer and manufacture of magazines holding more than 10 rounds and requires a background check to be completed before any sale or transfer of a gun can occur.
The attorney general’s office will petition for higher court review of the decision, said Kristina Edmunson, a spokesperson for Oregon Attorney General Ellen Rosenblum.
“We are still sorting through everything, but I can tell you we will be shortly filing a mandamus petition asking the Oregon Supreme Court to review it immediately,” Edmunson said.
Raschio found that guns with more than 10 rounds existed when the Oregon Constitution was drafted in 1857 and when the constitution was adopted in 1859. He also found that magazines are not separate or distinct from “arms,” which are protected by the Oregon Constitution.
Attorney Tony L. Aiello Jr., representing the gun owners, had argued that the Girandoni air rifle, which offered a magazine holding 20 shots, “was the emerging leader” in guns that could fire multiple shots when the Second Amendment was ratified. “This firearm is so germane to Oregon’s history that Meriwether Lewis himself carried a Girandoni on the Lewis and Clark expedition of the Oregon territory,” Aiello said.
Earlier Tuesday, U.S. District Judge Karin J. Immergut wrote in her ruling in a separate federal case that the Girondoni air rifle was developed for the Austrian army and were “extremely expensive, fragile and rare and were pulled from military service in 1815.”
Aiello called one witness during the hearing, Ben Callaway, owner of Spent Cartridge gun shop in Burns. He testified that magazines able to hold more than 10 rounds are standard on many popular guns, and when he tried to order a 10-round magazine for a Glock pistol online, he couldn’t find one this week.
Marshall, of the attorney general’s office, had urged the Harney County judge to look at California, which has had a similar ban on large-capacity magazines since 1994. “America’s largest market has operated under these rules for several decades, and I’m sure our market will be similarly served,” he said. California’s ban on large-capacity magazines faces an ongoing legal challenge in federal court in San Diego.
Oregon gun owners still can have larger-capacity magazines in their home, on their own property and use them for target shooting, shooting competitions or other recreational purposes such as hunting, according to state law, Marshall argued.
Aiello countered, “But that is not the reason why Article 1, Section 27 exists....It is for self defense in the home, outside the home, at work if your employer will allow it. That’s the purpose of it. And many Oregonians - hundreds of thousands - are going to be unable to do so on Friday.”
Raschio, ruling from the bench, said he was persuaded that “magazines are protected by the Oregon constitution, and firearms containing fixed magazines that can hold 10 bullets or more are in common use within Oregon.”
Kanter, dean emeritus at Lewis & Clark Law School, said the attorney general’s office petition for a writ of mandamus would ask the Oregon Supreme Court to intervene to try to vacate or throw out the Harney County judge’s temporary order blocking Measure 114.
If the state Supreme Court is convinced this case warrants its intervention, it would issue a preliminary writ of mandamus, ordering the Harney County judge to either throw out his temporary restraining order or explain why he shouldn’t. Then the state Supreme Court would issue a final ruling, Kanter said.
The federal judge’s ruling doesn’t impact the Harney County ruling, as the case before the county judge involved a challenge based on the state constitution, not the federal Second Amendment, Kanter said.
Kanter said the “odds are pretty good,” the state Supreme Court would issue a preliminary writ, yet one thing weighs against the state attorney general’s argument.
“Since this is a new law, the status quo is the law doesn’t exist, and the state Supreme Court might say, ‘it’s been going on for 150 years like it is today, and well, it took voters 150 years to come up with this, why would 10 more days matter,’ ” Kanter said. The attorney general’s office likely would counter that any further wait on restrictions on the sale of large-capacity magazines could lead to more of a “mad rush to buy,” them, as evidenced in recent weeks.
Tung Yin, a law professor at Lewis & Clark Law School, said the state’s attempt to have the state Supreme Court throw out the Harney County circuit judge’s temporary restraining order will be an uphill battle. “I would think it’s unlikely, but not impossible,” he said.
Attorney John Kaempf, who represents the Oregon Firearms Federation and challenged the measure in federal court and lost his motion for a temporary restraining order earlier Tuesday, said, “It is not surprising that a pro-Second Amendment judge in rural Harney County ruled this way, and we are glad that he did. But like the coronavirus legal challenges to the closing of churches and religious schools a few years ago, where an eastern Oregon state court trial judge also granted an injunction, I am concerned Oregon’s appellate courts will again quickly reverse this ruling too.”
Kaempf said he and his clients chose to challenge the measure in federal court, “where we believe we will get judges more receptive to our arguments under the federal civil rights laws, and the United States Constitution, both in the trial court and on appeal.”
The Rev. Mark Knutson, one of the chief petitioners of Measure 114 from the interfaith group Lift Every Voice Oregon, said the group had drafted a press release and was ready to put it out applauding Immergut’s ruling from earlier Tuesday morning allowing the ban on large-capacity magazines to go into effect with a 30-day delay on the permit-to-purchase provision. But then they got word later in the morning about the Harney County judge’s decision.
“We’re huddling again to take a look,” Knutson said. “We’re all waiting to learn what happens next.”
-- Maxine Bernstein
Email mbernstein@oregonian.com; 503-221-8212
Follow on Twitter @maxoregonian
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