Joseph A. Pickels,
Using Prior Supreme Court Rulings as a Guide, the Legal Challenge to Measure 114 Should Succeed
The Oregon Firearms Federation has filed suit in the federal district court in Pendleton challenging Oregon voters’ recent approval of Measure 114, the controversial ballot initiative concerning firearm sale and usage. The most controversial provision is the ban of large-capacity magazines. A large-capacity magazine is defined under the Measure as those with “more than 10 rounds of ammunition and allows a shooter to keep firing without having to pause to reload.” This definition is misleading, of course, as magazines with the capacity to accept more than ten rounds of ammunition are standard issue for many firearms. But, as a political matter, the overbreadth of the definition may have assisted with his passage.
In any event, the lawsuit asserts that the effect of Measure 114 violates various state and federal constitutional provisions. As applied to the so-called large magazine provision, the challengers are correct.
Both the Oregon and U.S. Constitutions protect the right to bear arms. However, Oregon courts have concluded that the “right to bear arms” is not synonymous with the Second Amendment. Oregon protects the right to possess firearms technologically similar to those commonly available in 1859, when the Oregon Constitution was approved. However, firearms based on more recent technology, such as automatic and semiautomatic firearms, are not automatically protected. This would appear to allow for stringent state prohibitions.
But state law is subservient to federal law, and federal law provides that Second Amendment protections apply to the states. Additionally, the Supreme Court has determined that “the Second Amendment extends to all instruments that constitute bearable arms” so long as the firearm is not unusual or dangerous.
The Supreme Court has created a legal review threshold which gun restrictions must satisfy. The first step is to assesses the provision at issue and the normal and ordinary meaning of the Second Amendment.
In the landmark 2010 firearm case of District of Columbia v. Heller, the Supreme Court concluded that the Second Amendment’s operative clause guaranteed the individual right to possess and carry weapons in case of confrontation. The Heller Court struck down the handgun ban at issue because those firearms are commonly used by law-abiding citizens for lawful purposes, consistent with the Second Amendment.
While the right is not unlimited – and restrictions on unusual or dangerous weapons are reasonable, as are restrictions on certain locations being “gun free” – the Second Amendment protects the possession and use of weapons that are “‘in common use at the time” or are otherwise consistent with the intent and enactment of the Second Amendment.
In other words, to be constitutional, the regulation must be consistent with the text and understanding of the Second Amendment as it was intended in 1791 and not prohibit or restrict the lawful use of normal, standard firearms.
Second Amendment litigation and regulations can be inconsistent and vary on a case-by-case basis. To establish some semblance of consistency, under Heller, the proper legal review is to look to the text, tradition, and history of the Second Amendment. Doing so in the Measure 114 litigation should lead the Court to a finding that Measure 114 is unconstitutional.
That is, for an outcome consistent with federal law, the reviewing judge will need to determine whether Measure 114’s prohibitions go so far as to restrict the application of a protected right under the Second Amendment dating to 1791. Under that approach, the outcome is clear. Indeed, Justice Thomas in Heller concluded that the Second Amendment simply codified an already pre-existing right – it did nothing new, it just enshrined the standard.
Using this analysis when reviewing Measure 114 should be consistent with the findings in Heller. For example, firearms and magazines capable of firing more than ten rounds have existed since before the Founding of the nation. They have widespread use throughout the nineteenth and twentieth centuries, and are commonplace both nationally and internationally.
With no longstanding prohibitions against them, large-capacity magazines are thus entitled to the Second Amendment’s protection. As a result, Measure 114 is unconstitutional because it attempts to revise Second Amendment history and protections, without providing a clear cut constitutional standard. There is no means-end reviewing standard when it comes to firearms. Instead the Court only looks at the text of the Amendment and the provision, and determine whether the provision infringes on the protections guaranteed in the right.
Measure 114 clearly goes too far in its regulation. As a result, the challenges in the Measure 114 litigation likely have a high chance of success.