Lawyers clash on whether mass shootings are ‘unprecedented societal concern’ in wrap-up of Oregon Measure 114 trial

Gun Rights

The text of gun control Measure 114 violates Oregonians’ Second Amendment right to acquire a firearm for self-defense and gun dealers’ rights to due process, a lawyer for multiple gun rights groups argued in court Friday.

If the question before the court is whether it’s “typical for someone to need 10 or 11 rounds for self-defense,” Attorney Matthew Rowen said his clients would lose, referencing their challenge of the measure’s ban on the sale or transfer of large-capacity magazines.

“It’s not typical for someone to need more than 10 rounds. We never disputed that,” he said in his closing argument Friday. “It makes zero difference… You don’t ask if someone really needs to speak…or if someone really needs not to be subjected to a warrantless search…or not be subjected to cruel and unusual punishment….That’s not the question. The question is: Are these devices that facilitate self-defense?”

Attorneys representing the state and a gun safety group countered that the measure’s regulations are “common sense” restrictions reflective of the nation’s historical response to dangerous weapons.

They urged a federal judge to honor “the people’s will.”

“This nation’s historic traditions of arms regulations teaches us and this court that the Second Amendment is not a regulatory straightjacket,” Senior Assistant Attorney General Harry B. Wilson said in his closing argument. “It allows states to protect the health and safety of their constituents.”

The arguments came at the end of five and half days of trial in Portland centered on whether the new gun regulations hold constitutional muster in the wake of last summer’s landmark U.S. Supreme Court ruling in New York that set a new standard for interpreting the Second Amendment right to bear arms.

The trial represented a consolidation of four cases filed by plaintiffs challenging the measure, which include the Oregon Firearms Federation, three county sheriffs, two gun store owners from Keizer and Pendleton, the Bellevue, Washington-based Second Amendment Foundation, and the Oregon State Shooting Association, the state’s affiliate of the National Rifle Association.

U.S. District Judge Karin J. Immergut is expected to issue a written opinion, which is anticipated to be the first comprehensive ruling on Oregon’s new law based on a full record of testimony, exhibits and argument. However she rules, her decision also is likely to be appealed and potentially end up before the nation’s high court as part of the rapidly-evolving case law on the hotly-contested issue.

Immergut said she will work to issue her decision “as quickly as I can,” but wants to “reflect seriously on all the exhibits.”

In December, Immergut declined the challengers’ motion for a temporary restraining order, finding that the measure’s burden on the core Second Amendment right of self-defense was “minimal.”

In that opinion, she wrote: “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.”

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

The judge made it clear before trial that she would only evaluate the measure as it is written, not as it might be put into practice by the state. In November, voters approved the measure by a 50.7% vote, but it’s been stalled since it was set to take effect in early December due to a state judge’s ruling in a separate challenge.

In June, the U.S. Supreme Court set a new legal standard for evaluating Second Amendment claims. In a 6-3 ruling in New York State Rifle & Pistol Association, Inc. v. Bruen, the nation’s high court struck down a law that placed strict limits on carrying guns outside the home. The court’s majority directed lower courts to use a new “text-and-history” standard when evaluating challenges to firearms 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.”

Wilson and Attorney Zachary J. Pekelis, who represents the nonprofit Oregon Alliance for Gun Safety, each defended the measure, highlighting the “unimaginable carnage” from mass shootings at schools, businesses and grocery stores in the last two years. Oregon became the 14th state to adopt a law restricting large-capacity magazines, seeking to reduce mass shootings.

“It doesn’t take a Ph.D. to know that these mass shootings happen nowhere else in the world like they do in the United States today,” Pekelis argued. “Mass gun murder has become so common as to be almost routine.” Yet, he said, the trial evidence showed that mass shootings are a modern phenomenon – unheard of before 1949 but have exploded in the last two decades, largely due to large-capacity magazines.

He listed off the 26 people killed in the Sandy Hook Elementary school shooting in Newton, Conn., in 2012, the 17 dead at the Marjory Stoneman Douglas High School shooting in Parkland, Fla., and 21 murdered in the Robb Elementary School shooting in Uvalde, Texas in 2022.

But Pekelis also urged the judge to look beyond the numbers and consider the human toll of the losses. Jenna Longenecker, a Portland native, testified about the ongoing pain and grief she suffered from the sudden loss of her mom, killed in the 2012 Clackamas Town Center shooting, followed four years later by the death of her father, who died by suicide with a gun.

Louis Klaveras, a research professor at Columbia University’s Teachers College in New York, testified that since 2010, 91% of high-fatality mass shootings, which leave six or more people dead, have involved large-capacity magazines.

“The people of Oregon have said enough is enough,” Pekelis said. “The people’s will should be honored and respected and upheld.’’

Rowen, representing the measure’s opponents, countered that while mass shootings are terrible, murder and violence aren’t a new thing but “a horrible fact of American life.”

While the incidence of mass shootings have risen, Rowen argued, “that’s not the sort of unprecedented societal concerns the court had in mind,” in the Bruen opinion.

He argued that magazines that hold more than 10 rounds of ammunition are commonly used for self-defense, with an estimated 160 million people owning them over the last 30 years for self-defense, sports shooting and hunting. The measure’s defenders contested that count by the National Shooting Sports Foundation, but stipulated for trial that they’re owned by millions of Americans.

Rowen acknowledged there’s a history and tradition of banning dangerous and unusual arms, but “if something is owned by millions and millions and millions of Americans, it’s obviously not unusual.”

Lawyers for the state and the nonprofit called several veteran historians who have spent their careers studying gun history and regulations from the 18th and 19th centuries. They testified about American laws enacted over the past 250 years that regulated everything from trap guns and bowie knives to gunpowder and machine guns.

Wilson argued that magazines of ammunition aren’t “arms” protected by the Second Amendment. Further, he said, the measure’s challengers failed to elicit any evidence that magazines with a 10-plus capacity are “necessary to use firearms for self-defense.” All 10 of the highest-selling pistols in 2022 are able to function with magazines that hold 10 or fewer rounds, and most major firearm manufacturers offer models that now come with such magazines, Wilson said.

“They are dangerous. They are unusual, and they are not protected by the Second Amendment,” Wilson said.

Economist Lucy Allen testified that an average of 2.2 shots were fired by armed civilians in self-defense from January 2011 through May 2017, and that it’s extremely rare to see more than 10 shots fired in such encounters. She said she relied on the NRA’s database of “armed citizen” accounts and newspaper records.

On the separate permit-to-permit provision in the measure, Rowen argued it gives local sheriffs and police chiefs too much discretion to determine a person’s mental well-being and deny a permit based on a subjective standard. Law enforcement can deny a permit if they find the applicant is “reasonably likely to be a danger to self or others or to the community.”

In contrast to the state’s red-flag laws, Measure 114 puts the “onus on the applicant to go to court” to fight a denial of a permit based on a local sheriff’s or chief’s determination of the applicant’s mental health, he said. For a red-flag or extreme risk protection order, Rowen argued, “the onus is on law enforcement to take the right away.”

Lawyers for the state and gun safety alliance countered that the mental health language was taken almost verbatim from Oregon’s concealed handgun licensing law, which is among those listed as among the 43 state constitutional “shall issue” gun licensing regimes cited in Supreme Court Justice Brett Kavanaugh’s concurring opinion in the New York case.

Concurring opinions aren’t binding law, Rowen retorted.

The challengers also argue that the permit provision now, as written, won’t and can’t work because the FBI doesn’t currently authorize the state police to submit fingerprints to run a national background check through an FBI data system.

“The FBI cannot perform the background checks that Measure 114 says they shall conduct,” Rowen argued.

Proponents of the measure said it’s possible the FBI will grant that access with a legislative fix.

Rowen argued the state would need to make that legislative change or adopt a different measure.

“They need to because the one that (voters) adopted is unconstitutional,” he told the judge.

It’s unclear if the judge will even consider the FBI background problem as she said her ruling is restricted to the text of the measure, not how it will be applied in Oregon.

In December, she ruled that the permit-to-purchase provision is in line with the “shall-issue” permit scheme supported by the U.S. Supreme Court’s ruling in June. If an applicant meets the criteria for the permit, the permit agent — which is likely to be a county sheriff’s office or local police agency — “shall issue” the permit, Immergut wrote then.

Lawyers defending Measure 114 sought to contrast their experts – multiple historians with doctorate degrees who have authored peer-reviewed journals and books – with the seven witnesses called by the measure’s challengers, including a firearms salesman, rural sheriff who opposes Measure 114, and a museum curator-turned-consultant.

Pekelis alleged that none of the witnesses for the gun rights groups “brought an unbiased, independent perspective.” For example, he referenced plaintiffs’ witness Ashley Hlebinsky, who is co-director of the University of Wyoming College of Law’s new Firearms Research Center, which is funded predominantly by firearms companies and strives to be the premier training ground for lawyers represeniting “all those who produce, employee, own and regulate firearms,” according to its website. She’s also received numerous awards from the National Shooting Sports Foundation, a plaintiff in the case.

Mark Oliva, a spokesperson for the National Shootings Sports Foundation, said those challenging Measure 114 in court called fewer witnesses because they felt “a full blown trial was “unnecessary” for the judge to decide the “purely legal questions in the case.”

Prior stories from trial:

Both her parents died from gunfire. She became the last witness in Measure 114 trial

From bowie knives to muskets and machine guns, historians testify in Measure 114 trial about America’s gun history, regulation

Measure 114 trial: Deadliest mass shootings often have 1 thing in common — large-capacity magazines, witnesses say

Oregon’s gun control Measure 114 gets federal court test

— Maxine Bernstein

Email mbernstein@oregonian.com; 503-221-8212

Follow on Twitter @maxoregonian

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