Spite is generally a bad motivator in life. That’s especially true when it comes to legislating. But it doesn’t always stop lawmakers from doing just that.
California’s decision to copycat Texas’s abortion bounty law is proof of that. After numerous California officials condemned Texas for passing their law, they turned around and passed their own version focused on guns. It’s a little-noticed provision in that law that has now created a significant embarrassment for the California Attorney General.
When Texas tried to chill legal challenges to its abortion law by shifting the cost of litigation onto plaintiffs and their lawyers even if they win on most of their claims, Rob Bonta (D.) called it unconstitutional. When California did the same thing for its gun law, he used legal maneuvering to try and avoid legal scrutiny of it. Now, as Contributing Writer Jake Fogleman explores, he’s bowing out of defending the provision altogether–potentially not by choice.
California is used to being at the center of America’s fight over guns. Oregon? Not so much. But a ballot initiative and massive legal fight have changed that over the past few weeks.
That fight has left us with dueling rulings. I look at why those divergent cases have to eventually come back together down the line, and what key differences will have to be reconciled.
Plus, GOA’s Sam Paredes joins the podcast to talk about his group’s successful lawsuit against Oregon’s new gun law.
Analysis: Why California’s AG Can’t Defend the State’s Gun Litigation Law [Member Exclusive]
By Jake Fogleman
The problem with using legislation to fight the culture war is that you might tie yourself in knots trying to own the other side.
On Thursday, California Attorney General Rob Bonta (D.) filed a supplemental brief in a lawsuit challenging the state’s fee-shifting provision for gun litigation. The purpose of the brief? To announce that he could no longer defend the law’s legality in good faith and that he was withdrawing from the case.
“At this time, the Attorney General is not in a position to defend the merits of a provision indistinguishable in relevant part from a provision that he has opined is unconstitutional,” the brief reads.
Before the passage of California’s copycat bill, Bonta had signed on to an amicus brief in the lawsuit challenging Texas’s bounty-style abortion ban, and he made public statements that referred to the law as “blatantly unconstitutional” for its attempt to evade federal judicial review. Now, tasked with defending the legal merits of a nearly identical gun law, the cognitive dissonance required proved too much.
As a result, the California Department of Justice will no longer defend the state’s copycat fee-shifting law. Instead, as indicated in the supplemental brief, California Governor Gavin Newsom (D.) has elected to intervene with the help of a private law firm to continue fighting for the law.
“While the Attorney General has determined that he is constrained in his defense of section 1021.11 by prior positions he expressed in litigating against Texas’s S.B. 8, the Governor is not, and the Governor’s defense of the statute would thus allow for full judicial review,” Newsom’s attorneys wrote in his motion to intervene.
While some could interpret Bonta’s bowing out as a principled stand against arguing on behalf of a law he knows is wrong, it’s more likely that he did so because he ran out of options. For months, AG Bonta’s office attempted to shield California’s copycat provision from judicial review by voluntarily declining to enforce it unless the Texas version was upheld in court. By refusing to enforce it, he argued, gun-rights plaintiffs did not have standing to challenge California’s law in court.
However, that tactic was rebuked by U.S. District Judge Roger Benitez earlier this month. Benitez, a judge known for issuing several rulings against the state’s gun laws in recent years, refused to deny standing to a coalition of gun rights groups in this latest case. A trial on the law’s merits is set to occur next week. With procedural maneuvering no longer an option, Bonta’s only remaining choice was to either step away or make contradictory legal arguments when defending against an injunction.
Furthermore, gun-rights plaintiffs used Bonta’s past criticisms of the legality of Texas’s law to discredit his legal defense of California’s copycat law. The California Rifle and Pistol Association (CRPA) took the rare step of pursuing sanctions against Bonta before he agreed to bow out.
“CRPA served a Rule 11 Sanction Motion yesterday on the state attorneys stating that the DOJ knew at the time they filed their opposition brief that the legal arguments had no merit and it looks like that may have been the catalyst for this sudden change of direction,” the group said in a news release responding to the AG’s announcement.
Rule 11 sanctions refer to the Federal Rules of Civil Procedure, which govern the conduct of attorneys in civil suits in U.S. District Courts. It requires attorneys to certify they are offering pleadings they believe are factual. If a judge determines an attorney violated Rule 11, they can issue severe sanctions against them.
Had Bonta stayed on the case to defend SB 1327’s fee-shifting statute on the merits, it’s possible that Judge Benitez would have done exactly that.
The legal mess is the inevitable result of the tit-for-tat strategy undertaken by lawmakers in California and Texas. The prioritization of culture war victories over prudent lawmaking has culminated in a legal case over a law both sides believe to be unconstitutional. The gamesmanship will likely continue until the federal courts pump the breaks on measures that attempt to chill judicial review.
Podcast: GOA’s Sam Paredes on Blocking Oregon’s New Gun-Control Law [Member Early Access]
By Stephen Gutowski
Oregon’s gun-control ballot initiative has put it at the center of the fight over guns in America. As the political battle ended with victory for Measure 114 and the deadline to implement a non-existent permit-to-purchase system closed in, a new front opened in the courts.
Sam Paredes, a Gun Owners of America (GOA) board member and treasurer of the Gun Owners Foundation, was on the frontline of that legal battle. While multiple federal suits were unable to secure a Temporary Restraining Order against the law, GOA was able to convince a state judge the measure violated the Oregon Constitution’s protections for the right to keep and bear arms. That decision has held thus far, despite an attempt by the state to get the Oregon Supreme Court to throw it out.
Paredes joined the show this week to talk about where things stand now, and what’s coming down the line. He said gun sales in Oregon will go on as usual for the time being, and the ban on magazines that hold more than ten rounds won’t go into effect. But the fight isn’t over as the state scrambles to create the permitting process and take the biggest practical issues with Measure 114 off the table.
However, Paredes said GOA is encouraged by the Oregon Supreme Court’s decision not to immediately intervene in the case. He said they may be hesitant to overturn the lower court’s pro-gun ruling in the wake of the United States Supreme Court’s ruling in New York State Rifle and Pistol Association v. Bruen. He argued they may not want to run afoul of Bruen and be overturned themselves.
But the federal judge overseeing challenges to Measure 114 disagreed. She ruled the permit-to-purchase requirement and magazine ban likely don’t violate the Second Amendment even under Bruen‘s text and tradition standard. Paredes said that judge did the analysis wrong. He argued the targeted magazines are in common use and protected, given SCOTUS’s rulings in Heller and Caetano, and the permit-to-purchase law has no historical analogue.
Plus, Contributing Writer Jake Fogleman and I discuss the surprising shift in the U.S. Senate’s balance of power this week.
You can listen to the show on your favorite podcasting app or by clicking here. Video of the show is also available on our YouTube channel. Reload Members get access on Sunday, and the show goes public on Monday.
Come on the Podcast
One of the many perks of a Reload membership is the opportunity to appear on the podcast. We’ve had a lot of people on the show from all kinds of backgrounds. It’s one of my favorite segments since it gives us all a better insight into the community that makes this publication possible. If you want to come on the show, just reply to this email and let me know!
Analysis: As Oregon’s Gun Litigation Diverges, a Collision is Inevitable [Member Exclusive]
By Stephen Gutowski
The legal fight over Oregon’s gun-control ballot initiative is headed in two different directions, but the paths will eventually have to crash back into each other.
In the wake of Measure 114’s adoption last month, gun-rights advocates filed multiple lawsuits against the permit-to-purchase and magazine ban provisions at the state and federal levels. They argued both provisions are unconstitutional under the right to keep and bear arms protections in the United States Constitution and the Oregon Constitution, especially under the standard articulated by the Supreme Court in New York State Rifle and Pistol Association v. Bruen. But they got different results at each level.
Harney County Judge Robert Raschio issued a Temporary Restraining Order (TRO) against the entirety of the law. U.S. District Judge Karin Immergut delayed implementation of the permit-to-purchase requirement for a month at the request of Oregon officials, who admitted they couldn’t create the system before the deadline but declined to issue a TRO against the rest of Measure 114.
The judges’ reasoning were in stark contrast to one another. While they both agreed that requiring a permit to buy a gun that was effectively unobtainable violates the right to keep and bear arms, and the requirement would have to be blocked, at least in the short term, they differed on everything else. It’s possible either judge could change their mind, but they both seem pretty convinced of their initial conclusions. It’s more likely higher courts, likely the United States Supreme Court itself, will have to settle the contradictions in their approach–if not in this specific case, at least more generally.
Judge Immergut found Measure 114’s ban on the sale and use of magazines capable of holding more than ten rounds, with limited exceptions, is not unconstitutional. She argued the Second Amendment does not protect the magazines because they are not “necessary to the use of firearms for lawful purposes such as self-defense” since magazines that hold fewer than ten rounds can be used in their place.
“While magazines in general are necessary to the use of firearms for self-defense, Plaintiffs have not shown, at this stage, that magazines specifically capable of accepting more than ten rounds of ammunition are necessary to the use of firearms for self-defense,” Immergut wrote. “As noted above, the ‘corollary… right to possess the magazines necessary to render… firearms operable’ is ‘not unfettered.’ Instead, the right is limited to magazines that are necessary to render firearms operable for self-defense and other lawful purposes.”
Further, she argued magazines that hold more than ten rounds are not commonly used for self-defense. Instead, she claimed they are frequently used to carry out mass shootings. She determined the magazines weren’t in common use for self-defense (which she narrows “lawful” uses down to) because a review of NRA-cataloged self-defense shootings rarely involved more than ten shots. Conversely, she claimed they were especially dangerous because of their use in mass shootings–not the shot count involved.
Further, since neither multi-shot firearms nor mass shootings were common during the founding era, Immergut concludes the Bruen decision gives her more leeway to look for broad historical analogues to the modern solutions for what she claims are the connection between the two. She quotes the Court as saying, “the Second Amendment is not a ‘regulatory straightjacket’ that protects a right to ‘keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose’ while leaving off the part where it said it’s not a “regulatory blank check.”
While unable to find any founding-era regulation that resembles a magazine capacity limit, Immergut pointed to a mixed bag of various 18th and 19th-century weapon regulations. She argued things like historical bans on carrying clubs or bowie knives or even forming private militias constitute a comparable burden to Measure 114’s magazine ban. So, she argued, the ban survives a Bruen analysis.
“In light of the evidence of the rise in mass shooting incidents and the connection between mass shooting incidents and large-capacity magazines—and absent evidence to the contrary regarding the role of large-capacity magazines for self defense—Defendants are comparably justified in regulating large-capacity magazines to protect the public,” she wrote.
Judge Immergut’s arguments don’t seem to line up well with what the Supreme Court has ruled from Heller through Caetano and Bruen. The Court has been clear that the Second Amendment protects arms commonly used for lawful purposes. It’s difficult to imagine the magazines that come standard with the majority of guns sold over the past century or more, likely numbering in the hundreds of millions, are anything other than that.
Self-defense may be the most essential lawful use, but it’s obviously not the only one. And the Supreme Court has established this extends well beyond firearms themselves to devices like stun guns, which it found were in common use with only a few hundred thousand nationwide.
And Judge Immergut’s historical analysis looks more like an effort to throw every historical gun regulation imaginable at the wall in hopes of something sticking rather than an opinion that’s likely to have staying power and influence rulings beyond her own. That’s especially true with the section that quite literally treats the Second Amendment as lesser than the First, a recurrence of the tendency of lower courts to treat gun rights as “second class” that the Supreme Court explicitly condemned in Bruen.
“Plaintiffs’ briefing and oral argument with respect to irreparable harm focused almost exclusively on their Second Amendment challenge to Measure 114,” she wrote. “Plaintiffs ask this Court to hold that the deprivation of Second Amendment rights alone, even for an instant, constitutes irreparable harm. Although First Amendment violations—even those that occur for ‘minimal periods of time’—are presumed to be irreparable, neither the Supreme Court nor the Ninth Circuit have explicitly extended that holding to the Second Amendment.”
The Supreme Court is unlikely to look fondly on that conclusion. Certainly, Judge Raschio disagreed.
“Deprivation of fundamental Constitutional Rights for any period constitutes irreparable harm,” he ruled.
He also found magazines banned by Measure 114 are commonly-owned.
“The plaintiffs are persuasive that magazines are protected by the Oregon constitution, and firearms containing fixed magazines that can hold ten bullets or more are in common use within Oregon,” he said in his ruling from the bench.
He said the magazine ban represented a clear violation of the state’s right to keep and bear arms protections. And the permit-to-purchase requirement does the same.
“Absent entry of this Temporary Restraining Order, Plaintiffs will be deprived of their right to bear arms pursuant to Or. Const. Art. 1, Sec. 27 by being made unable to lawfully purchase a firearm or bear a magazine holding more than ten rounds of ammunition in the state of Oregon,” Judge Raschio wrote.
Immergut’s argument on the permit-to-purchase requirement is considerably shorter but probably more viable than her opinion on the magazine ban. While the historical analogue test in Bruen makes it difficult to uphold the permitting law without zooming way out as Immergut did for the magazine ban, non-binding Supreme Court dicta does provide some support.
“Measure 114’s permit-to-purchase scheme is a ‘shall-issue’ permit scheme based on objective standards and is therefore presumptively constitutional under the holding of Bruen,” she wrote. “There are currently 43 states with some kind of ‘shall-issue’ licensing regime in place, under which ‘a general desire for self-defense is sufficient to obtain a [permit.]’ Of these licensing regimes, Bruen concluded that ‘nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes.’”
She cited a Bruen concurrence by Justice Kavanaugh and Roberts that emphasized the apparent legality of “shall-issue” gun-carry permitting.
“Writing in concurrence, Justice Kavanaugh further noted that while discretionary regimes like the one at issue in Bruen are constitutionally suspect, ‘objective shall-issue licensing regimes’ do not violate the Second Amendment, even when they ask a prospective gun purchaser to ‘undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements,’” she wrote.
Since the Court placed the right to carry guns on par with the right to own them in Bruen, it does stand to follow the Court may view permitting requirements on both similarly. So, even if there isn’t a direct historical analogue for permit-to-purchase laws or gun-carry licensing, the Court may uphold both. Of course, that only applies in cases where permitting is not controlled through subjective decisions and doesn’t impose unreasonable delays or costs.
Of course, this issue offers the more intriguing legal question, but we have less insight into what each judge thinks about it to this point. Judge Immergut gave us a few paragraphs dotted with disclaimers that she could change her mind based on evidence presented at the next hearing. Judge Roschio didn’t elaborate on the issue much in his TRO. That’s likely to change after each judge issues their ruling on requests for preliminary injunctions next week, and we get a few thousand more words.
It remains unlikely they will land in the same place. So, a higher court will eventually have to reconcile their points of view and declare a winner. Given this fight is taking place in the Ninth Circuit and they have traditionally been most at odds with SCOTUS, it might make it all the way to the highest court of all.
In the meantime, Oregonians aren’t waiting for that outcome. They have crammed into gun stores at record rates, perhaps understanding how long it can take to resolve legal fights like this. Of course, gun-rights advocates have something of an advantage in the end: they only have to win at one level.
That’s it for now.
I’ll talk to you all again soon.
Thanks,
Stephen Gutowski
Founder
The Reload
