A state attorney asked the Oregon Court of Appeals on Tuesday to allow voter-approved gun control Measure 114 to take effect, arguing that its regulations promote public safety without “unreasonably” restricting an Oregonian’s right to bear arms for self-defense.

Senior Deputy Attorney General Robert A. Koch said a state judge’s findings blocking the measure as unconstitutional were “way off the mark” and had “no basis in Oregon law.”

Attorney Tony L. Aiello Jr., who represents gun rights advocates who challenged the measure, argued that Harney County Circuit Judge Robert S. Raschio made the right decision because the measure “unfairly” regulates all Oregonians without first determining that they are dangerous or inappropriate. buy a gun

During almost 40 minutes of oral argumentsa three-judge panel of the appeals court asked what standard it should use to decide whether the measure complies with the state constitution.

Measure 114 passed in November 2022 with 50.7% of the state’s votes. Limits gun magazine capacity to 10 rounds or fewer, requires a permit to purchase a gun, and closes the so-called “Charleston Loophole” by requiring the completion, not just initiation, of a criminal background check to purchase or transfer a gun.

One week before the law takes effect on December 8, 2022, two Harney County gun owners filed a lawsuit challenging the permit requirement and magazine limit. They were joined by Virginia-based Gun Owners of America Inc., a major lobbying group behind multiple gun control challenges across the country, and the Gun Owners Foundation, which supports legal action in defense of – the second amendment.

Raschio issued an emergency injunction blocking the measure from taking effect and later filed a lawsuit on the merits. Last November, he found that its two major provisions requiring a permit to purchase a gun and banning high-capacity magazines violated the state constitution clause. protecting the right to bear arms.

Raschio said the state has not shown that any of the provisions would promote public safety, despite arguments by state attorneys that the new regulations are intended to reduce mass shootings, suicides and homicides.

Koch told the appeals panel that it should not pay attention to Raschio’s findings, but instead decide for itself whether Measure 114’s language is constitutional under state law.

“He can consider whatever facts he thinks are relevant to the legal issues before him,” he said. “Each of the three provisions (of the measure) are reasonable and naturally constitutional.”

Koch spent a lot of time arguing that banning high-capacity magazines promotes public safety by preventing a barrage of gunfire like the October 1, 2017 massacre in Las Vegas, the worst mass shooting in US history, when a gunman opened fire on a music festival from his hotel suite.

“A single shooter fired over 1,000 rounds into a crowd of concertgoers within 11 minutes. In a span of 60 seconds, he fired 298 rounds, ultimately killing 58 and injuring over 800,” he said. “These are very distinct technologies, and military-style weaponry, such as a modern high-capacity magazine, does not qualify for constitutional protection.”

“Virtually every” firearm will accept and function with a magazine that holds 10 rounds or less, Koch said.

Appeals Judge Josephine H. Mooney noted that some guns used in the Civil War were capable of firing more than one round at a time.

Koch responded that the size of a gun historically limited the number of rounds it could fire. In the 1850s, he said, pepper guns and Colt revolvers were most commonly used for self-defense and could hold between four and eight rounds. In Oregon, the most common weapon then used for self-defense, he said, was a single-shot flintlock shotgun.

Modern high-capacity magazines generally evolved for military purposes and not for self-defense, he said.

Aiello said it is not the appellate court’s role to make new findings of fact.

He argued that Measure 114 is different from other laws in that it does not “target dangerous practices” or actions historically considered dangerous, such as firing a gun in a public place or carrying a concealed weapon.

“The law must fulfill the purpose it purports to promote, in this case, public safety,” he said.

Raschio found no — and the appeals court should do the same, he said.

Appeals Judge Kristina Hellman asked: “If I accept your position, then in any case the person who wishes to support a law passed by the people should prove that the law does what the people hope it will do?’

Aiello responded that this is not the position of gun rights advocates.

But Hellman asked: Isn’t the purpose of the permit to buy a gun and run a background check “to make sure that people who shouldn’t have firearms don’t have them?”

Aiello said the government can only restrict guns from certain people designated as dangerous or those involved in dangerous practices, such as convicted felons or people with mental illness who have been institutionalized.

He argued that Measure 114 “is for all Oregonians” because it would require all people to apply for a permit and complete safety training before purchasing a gun.

“There is no Supreme Court or other case law that gives people the authority to designate all Oregonians as inherently dangerous,” Aiello said. “Basically, you’re considered unfit until you prove otherwise to the government.”

Mooney then asked: Background checks — completed before issuing a gun permit — are not used to find out who shouldn’t have a gun.

Aiello said people who buy guns already face background checks under federal law, and Measure 114 adds one more that must be completed before guns can be sold. The proposed context of the measure is identical except that it requires an FBI fingerprint check, he said.

“This is a second background check. Prophylaxis after prophylaxis. It’s pointless,” he said.

Under current federal law, firearms dealers can sell guns without a background check if the background check takes more than three business days. That’s how the gunman in a mass shooting in Charleston, South Carolina, in 2015 bought his gun and killed nine people at a church.

Hellman asked why Aiello opposes closing the so-called Charleston loophole, which requires completion of a background check before selling a gun.

Aiello said the measure does not set a time limit for completing the review and provides no procedure to appeal a delay.

Koch reminded the court that the constitutional challenge is based on the text of the measure, not how it is applied. Aside from the case file, he said the court may consider the measure’s preamble and voter pamphlet in making its decision.

He concluded by pointing out that more bullets in a magazine allow more shots to be fired and cause more destruction.

“The defining feature of a high-capacity magazine is the ability to fire more than 10 rounds without having to pause to reload in mass shooting events. That means more shots fired, more injuries, more deaths,” Koch said.

“Restricting them reduces shootings, injuries and deaths. We saw that at the Gabby Giffords shooting, at the Poway synagogue and at Sandy Hook, where 11 first graders were able to hide or run to safety because the shooter had to stop to reload,” he said. “That break can save lives, and it was reasonable that Oregon voters chose to require one here.”

Congregants at the Chabad of Poway synagogue in suburban San Diego in April 2019 confronted and chased a gunman after he emptied a magazine of 31 rounds from an AR-15 rifle and before he could reload it in the sanctuary. One person was killed and two others were injured in the shooting.

During the 2021 shooting at Sandy Hook Elementary School in Newton, Connecticut, nine first-graders in a classroom managed to escape through a door and two hid in a bathroom as the gunman reload. Those students survived. The 20-year-old shot and killed 26 people — 20 6- and 7-year-old children and six adult staff members.

Former Arizona U.S. Rep. Gabby Giffords was shot in the head and wounded in a January 2011 attack that left six people dead.

Hellman, Mooney and Judge Darleen Ortega said they would consider the case. They have not indicated when they will rule.

— Maxine Bernstein covers federal courts and criminal justice. Contact her at 503-221-8212, [email protected], follow her on X @maxoregonianor on LinkedIn.

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