A Harney County judge Tuesday extended for 10 more days a restraining order that blocks Measure 114′s regulation requiring a permit to buy a gun, as well as its requirement that a background check be completed before a gun is sold or transferred.
Circuit Judge Robert S. Raschio said in a hearing Tuesday he’s convinced there would be “irreparable harm” to Oregonians’ constitutional right to bear arms if he did not extend the restraining order. He attempted to bar the permitting requirement, as well as other provisions of the measure, until the state can report it has a full permitting process in place, but a lawyer for the state objected to the scope of the judge’s temporary order.
Senior Assistant Attorney General Brian Simmonds Marshall said the judge’s order shouldn’t cover the background-check provision.
“The court is enjoining a provision that was not challenged by the plaintiffs,” he said. “We’d like to be heard as soon as available.”
In extending the restraining order, Raschio barred sections one through 10 of Measure 114 and set a hearing on Dec. 23 for the state’s concerns to be aired.
The measure, which passed by 50.7% of votes, calls for a permit to buy a gun and a ban on the sale, transfer and manufacture of magazines holding more than 10 rounds. It also requires a background check to be completed before any sale or transfer of a gun can occur. Under federal law, a gun now can be sold if a background check isn’t completed within three business days.
Oregon State Police have drafted and posted on its website a state application for a permit to buy a gun, Marshall told the court. Under the measure, an applicant must pay a $65 fee, provide fingerprints, complete a firearms-safety training course and pass a background check to obtain a permit to buy a gun.
The only current barrier to acquiring a permit is the lack of law enforcement-certified trainers for an applicant’s in-person demonstration to show they know how to load, unload and “live-fire” a gun, which is required as part of a safety training course to obtain a permit, Marshall said.
“Local law enforcement has not identified sufficient numbers of individuals who they can certify to provide live-fire demonstrations,” Marshall said.
In separate challenges pending in federal court, the state already had agreed to delay any permit-to-purchase requirement until Feb. 8.
Raschio maintained that he has separate and distinct authority to rule on Measure 114, regardless of rulings from U.S. District Judge Karin J. Immergut, who is hearing four separate challenges to the gun-control measure.
Last week, Raschio issued a 10-day temporary restraining order against all provisions of the voter-approved Measure 114, barring it from taking effect as planned last Thursday.
Raschio’s ruling last week came just three hours after Immergut declined to issue a temporary restraining order against Measure 114 in separate cases brought by the Oregon Firearms Federation and Washington-based Second Amendment Foundation. But Immergut did order the delay of the permit-to-purchase gun requirement at least one month until the state had a system in place to support it.
“That judge has no jurisdiction to interpret Oregon law. This is separate and distinct litigation from the federal government,” Raschio said Tuesday.
The challenge now before Raschio was filed by Virginia-based Gun Owners of America and two Harney County gun owners. They argue that Measure 114′s gun-control regulations violate Oregon Constitution’s Article 1, Section 27. That article says, “The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]”
The Harney County judge is continuing to hear testimony Tuesday afternoon on the Gun Owners of America’s motion for a preliminary injunction against the measure’s ban on the sale, transfer and manufacture of magazines that hold more than 10 rounds. Raschio said he will rule by the end of the week on whether to extend his previously-issued temporary restraining order blocking the measure’s magazine capacity restriction, which runs until Friday at 5 p.m.
Attorney Tony Aiello Jr., who represents the Gun Owners of America, argued that magazines that hold more than 10 rounds are standard for guns manufactured today. Those guns, he argued, are “essentially the same firearm, just modified by design and function,” as some of the nation’s earliest guns.
He called two witnesses Tuesday morning, including Benny Callaway, a firearms dealer who owns the Spent Cartridge gun shop in Burns, and John Isaac Botkin, who said he’s the technical and education officer at Tennessee-based manufacturing company T.Rex Arms.
Callaway testified that he’s had a hard time finding a manufacturer that will ship him a magazine limited to 10 rounds due to the state’s voter-approved measure.
Botkin testified that “the easiest way to improve the power of a firearm is to get off multiple shots” and claimed there’s no evidence of regulations to restrict the number of shots a gun fires until the 20th century. Botkin said he made a YouTube video called, “Why Everyone Needs An AR-15,” in which he says the AR-15 “can be a weapon of war and the very best platform for civilian use at the same time.’’
Marshall argued that Botkin shouldn’t be allowed to make any “historical conclusions” on the history of guns, stating he’s not an expert. Marshall said he is ready to call two historians with doctorate degrees who have “grounded opinions” based on their study of the gun trade during the 18th, 19th and 20th centuries.
The judge let Botkin continue.
The state has defended the magazine restriction, saying voters approved it to reduce and prevent “horrific deaths and devastating injuries due to mass shootings, homicides and suicides,” according to court filings.
The state constitution established a right to bear arms, but it’s “not an absolute right,” and state case law has found that the right to bear arms “does not mean that all individuals have an unrestricted right to carry or use personal weapons in all circumstances,” according to the attorney general’s office.
James Yurgealitis, a retired agent of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives who testified for the state, said multiple gun manufacturers – including Ruger, Smith & Wesson and Glock – make guns with magazines that hold a maximum of 10 rounds, noting that 12 other states and the District of Columbia have similar magazine capacity restrictions.
The hearing, held in Harney County Circuit Court, also was live-streamed via a video conference app.
During the hearing, some people listening by video wrote comments on a chat page in response to various witness’ testimony. “Major waffling!” wrote one observer. “Diverting the question! Simple Yes or No,” wrote another. The judge said he would not take into account any of the chat page comments when making his ruling.
This story republished with the permission of The Oregonian/OregonLive.