In a sometimes blistering 44-page ruling, a Circuit Court judge in Oregon ruled Tuesday that Measure 114—a gun control measure that was barely passed by voters in 2022—is unconstitutional under the Oregon State Constitution and is therefore permanently enjoined.
The detailed ruling by Presiding Circuit Court Judge Robert S. Raschio of the 24th Judicial District covering Grant and Harney counties is almost certain to be appealed. The long-awaited ruling is in direct contradiction to an earlier decision by U.S. District Judge Karin Immergut that the measure is legal under the federal constitution. Her ruling is under appeal to the U.S. Ninth Circuit Court of Appeals in San Francisco.
Measure 114 requires a permit to purchase a firearm, which Raschio rejected as a public safety policy.
According to Oregon Public Radio, Democrat state Attorney General Ellen Rosenblum is fighting back. She sent OPR a statement via email in which she asserted, “The Harney County judge’s ruling is wrong. Worse, it needlessly puts Oregonians’ lives at risk. The state will file an appeal and we believe we will prevail.”
But that sort of rhetoric did not wash with Judge Raschio, who wrote, “The court finds no evidence in the record that public safety is promoted by the permit-to-purchase policy. The defendant showed there is a harm from gun violence in terms of injuries and deaths, but as stated above provided no evidence the program would help reduce those harms.”
“Ballot Measure 114 Permit-to-Purchase Scheme is Facially Unconstitutional.”—Judge Robert Raschio
In his ruling, Judge Raschio stated, “Oregon citizens have a right to self-defense against an imminent threat of harm, which is unduly burdened by Ballot Measure 114. Three salient facts were agreed upon by the parties at trial: A) Ballot Measure 114 delays the purchase of firearms for a minimum of 30 days; B) the permit-to-purchase program derives its language source in the concealed handgun license statutes; and C) the Federal Bureau of Investigations (FBI) refuses to conduct criminal background checks. The court finds these agreed to facts are fatal to the constitutionality of the permit-to-purchase scheme.”
Kevin Starrett, head of the Oregon Firearms Federation, which has its own federal challenge to the law under appeal (there are four altogether, involving literally every gun rights organization in the country at one level or another), told Ammoland News, “I think the whole landscape could change a lot, maybe within the next couple of weeks. I don’t like to predict what’s going to happen…What’s next for me is to talk to all the attorneys on these multiple (federal) cases.”
He is skeptical about the state Court of Appeals upholding Raschio’s ruling, asserting that the judges at that level are not friendly to gun owners. Likewise, the state Supreme Court may not be friendly to gun owners, either he indicated.
Starrett gave Judge Raschio’s ruling high marks, calling it “pretty well done.” He congratulated the judge for taking “a brave stand in the face of a full frontal assault on gun rights by Oregon’s establishment leftists.”
In an alert to his members, Starrett observed, “While this good news buys us time, there is no doubt that the state is already working on an appeal to the ruling, which will cost Oregon taxpayers even more millions.”
Starrett said if the ruling is reversed and Measure 114 is allowed to take effect, “the potential is catastrophic.” Small firearms retailers would face business closures because he contends the measure will make it impossible to legally purchase a gun anywhere in the Beaver State.
Alan Gottlieb, executive vice president of the Second Amendment Foundation, which is involved in two of the four federal challenges to Measure 114, said he will be looking over the Raschio decision carefully, as will all of the attorneys—and there are lots of them—involved in the federal cases.
Coincidentally, SAF is challenging two gun control laws in neighboring Washington, along with an initiative passed in 2018, which also has had a negative impact on potential gun buyers, especially young adults. One of the Washington laws bans ammunition magazines that hold more than ten cartridges.
Another tenet of Measure 114 is that it also bans magazines capable of holding 10 or more rounds, or which can be “readily” modified to hold more cartridges. Both sides brought forth experts, and Judge Raschio at trial did not seem impressed with some of the state’s witnesses.
Testifying for the plaintiffs were Sheriffs Cody Bowen from Union County and Dan Jenkins from Harney County. Both told the court their deputies often have lengthy response times to crimes, and as noted by OPR, both lawmen indicated their deputies “have often relied on armed civilians to provide cover for them during incidents and that residents and deputies use their firearms to protect themselves, their families and their livestock from predators including bears, wolves and coyotes.”
“Ballot Measure 114 Large Capacity Magazine Ban is Facially Unconstitutional.”—Judge Raschio
When the judge looked at the magazine ban portion of the measure, he noted, “The court finds that all semi-automatic handguns and rifles, the most popular forms of firearms for self-defense in country today, are banned under Baliot Measure 114, Section 11.
“The court finds that the large capacity magazine ban effectively bans all firearm magazines fixed or attached which is unconstitutional under any application of said law,” he subsequently adds.
“Most of the deputies and troopers have their weapons with them when they are off-duty and have their vehicles and weapons with them at their home to improve response time to emergencies,” the judge notes two pages later. “Those weapon possessions are illegal under Ballot Measure 114.”
And finally, when he looked at testimony from state witnesses about mass shootings, Judge Raschio observed, “The mass shooting events have a significant impact on the psyche of America when they happen. People tend to believe these events are prolific and happening all the time with massive levels of death and injury. The court finds this belief, though sensationalized by the media, is not validated by the evidence.”
As Judge Raschio nears the end of his ruling, he tends to take off the judicial gloves, especially about the magazine limit.
“The advocates for Ballot Measure 114 argue in the preamble and in the voters guide that a restraint on the amount of ammunition as the key to preventing mass shootings,” the judge writes. “Nothing in the preamble, the voters’ guide nor the defendants’ evidence provide a rationale for why the rounds should be limited to ten as opposed to any other arbitrary number that could have been picked nor did they show the limitation of ten rounds has any demonstrable effect on negative outcomes to mass shooting events.
“The proponents claim the delay in reloading can help with individuals getting away from the shooter,” he adds. “Ignoring that the larger the magazine, the higher chance of it jamming according to the testimony, the court finds the time to reload a ten-round magazine into a semi-automatic firearm is negligible at best.”
He then observes, “The court finds that 10-round magazine bans are no panacea to prevent a mass shooter based upon the evidence in this case. A motivated mass shooter could carry well over 100 rounds in 10 separate magazines and readily release a detachable magazine from a firearm and reload in two seconds offering none of the supposed protection promoted in the preamble or voter’s guide for Ballot Measure 114 by banning large capacity magazines. The court can find no scientific or analytical reasoning on this record that a ten-round limitation will increase public safety in any meaningful way.”
Raschio also criticized evidence offered about mass shootings, which overwhelmingly did not happen in Oregon.
“There have been 155 mass shooting events from 1976 to 2018 under the definition of mass shooting which consists of over four deaths in the incident and the incident was not attributable to another crime or domestic violence,” the judge notes. “The total physical harm from those mass shootings was 1078 deaths and 1694 non-fatal casualties or 25.6 deaths and 40.3 injuries on average per year from mass shootings since 1976. Only two of those mass shooting events occurred in Oregon.”
And he saved some criticism for the way the news media sensationalizes such incidents.
“The court finds the total fatal and non-fatal casualties from those 155 mass shootings over the last 42 years is 2,772 people,” Raschio states. “The historic number of causalities from mass shooting events is staggeringly low in comparison the media’s sensationalized coverage of the events.”
So far, observers in the firearms community say Raschio did his homework, and spent a considerable amount of time writing this decision in order to “cover all the bases.”
While Oregon’s Starrett is looking over the horizon at the potential for reversal by the Appeals Court, he remarked, “For now, obviously it’s a Thanksgiving present.”
About Dave Workman
Dave Workman is a senior editor at TheGunMag.com and Liberty Park Press, author of multiple books on the Right to Keep & Bear Arms, and formerly an NRA-certified firearms instructor.
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