Measure 114 After a Year of Litigation
by Jermaine Brown
The summer of 2023 was bookended by federal and state trials on the constitutionality of Measure 114, gun-control legislation enacted by voters in November 2022.
The measure—with some exceptions—prohibits and restricts the use, possession, or sale of “large-capacity magazines,” which the measure defines as magazines that are capable of holding more than 10 rounds of ammunition. BM 114 § 11(1)(d). Measure 114 permits licensed firearm dealers to, among other things, transfer or sell existing large-capacity magazines to persons located outside of Oregon or alter the magazines such that is no longer has a capacity of 10 or more rounds. Id. § 11(3). The measure also requires individuals to obtain a permit before purchasing a firearm which, in turn requires a purchaser to complete a background check, complete a firearm safety course, not pose a danger to themselves, others, or the community, and pay a fee. Id. § 4.
Following Measure 114’s enactment, citizens filed suit in state and federal court, respectively alleging that it violated Article I, §27, of the Oregon Constitution and the Second Amendment to the United States Constitution. While the federal court denied the plaintiffs’ request for a temporary restraining order, the state court enjoined the measure. The respective courts each scheduled trials in May 2023 and September 2023.
The federal trial represented one of the first applications of N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), which lays out the test for evaluating whether a firearms regulation violates the Second Amendment. As Bruen explained, a court should evaluate whether the regulation is consistent with the nation’s historical tradition of firearms regulation. The Bruen Court also reiterated that the Second Amendment protected only the right of law-abiding citizens to keep and bear those arms that are in common use for self-defense.
The district court’s July 2023 decision upholding Measure 114 touches on some interesting questions raised by the analytical approach in Bruen. While Bruen explains that “when the Second Amendment’s plain text covers an individual’s conduct . . . the government must then justify its regulation,” the opinion is not clear about how courts and practitioners should go about determining whether “the Second Amendment’s plain text covers an individual’s conduct” or whether the party challenging the regulation has the burden of doing so. Moreover, that analysis also requires courts to consider whether a weapon is “in common use for self-defense.” For example, is “common use” the number of weapons sold in the United States, the number of weapons owned in the United States, or the number of weapons used in deterring or repelling a threat of harm? And what does “use” mean?
The district court answered the burden question relatively easily, explaining that the most logical reading of Bruen was that it was plaintiff’s burden to show that the regulation impinged on the right to keep and bear arms that are in use for self-defense. The court noted that in Bruen, the Court had stated explained “when the Second Amendment’s plain text covers an individual’s conduct . . . the government must then justify its regulation” and reasoned that the most logical reading of Bruen was that the plaintiffs bore the initial burden of demonstrating that the Second Amendment applied.
The district court’s analysis of the common-use question was more involved. The plaintiffs asserted that the district court needed to consider only the number of LCMs in Americans’ possession—some 160 million. The plaintiffs maintained that if a firearm accessory was owned by more than 200,000 individuals, it was in “common use.” The court declined to accept that argument, noting that Bruen had stated the weapon must be in “common use for self-defense” and noted that 200,000 was 0.0006% of the U.S. population. The court also rejected the notion that a person’s intent for possessing a firearm was not sufficient to show that a firearm was in “common use for self-defense.” In the district court’s view, the proper way to determine whether a weapon is in “common use for self-defense” is to analyze how the weapon has actually been used.
Although the district court upheld Measure 114, its opinion will not be the last word. The plaintiffs have announced that they will appeal to the Ninth Circuit.
Nor will the opinion of the state circuit court be the last word. That court concluded that Measure 114 violates the Oregon Constitution and announced that it would enter a permanent injunction against the statute. The defendants have announced that they will appeal that decision.
The author is an attorney at Markowitz Herbold PC, which served as trial counsel for the state defendants in both the state and federal Measure 114 cases. The opinions expressed here are not the opinions of Markowitz Herbold PC, the State of Oregon, or the Oregon State Bar.