Oregon Firearms Federation, with Sherman County sheriff, file first lawsuit challenging Oregon’s gun control Measure 114

The Oregon Firearms Federation late Friday filed a federal suit against Gov. Kate Brown and the state’s attorney general, urging a judge to bar the recent voter-approved gun control Measure 114 from taking effect next month.

The federation, joined by the Sherman County sheriff and a Marion County gun store owner, contend the ban on magazines that hold more than 10 rounds violates their Second Amendment right to bear arms and right to due process.

“Banning magazines over 10 rounds is no more likely to reduce criminal abuse of guns than banning high horsepower engines is likely to reduce criminal abuse of automobiles,” attorney John Kaempf wrote in the suit.

“To the contrary, the only thing the ban contained in 114 ensures is that a criminal unlawfully carrying a firearm with a magazine over 10 rounds will have a potentially devastating advantage over his law-abiding victim.”

The lawsuit , filed in U.S. District Court in Pendleton, is the first court challenge to the measure, which was highly anticipated by both proponents and critics. The measure is set to take effect Dec. 8.

The measure will ban the sale, transfer and purchase of large-capacity magazines, require a permit to buy a gun and will close the so-called Charleston loophole by requiring a criminal background check be completed before a gun sale or transfer can occur.

It passed narrowly following a grassroots campaign by the interfaith group Lift Every Voice Oregon. The proponents had argued that the ban on magazines holding more than 10 rounds will help reduce mass shootings as shooters would have to pause to reload before firing dozens of shots.

Joining the firearms federation as a plaintiff in the lawsuit are Sherman County Sheriff Brad Lohrey, one of at least three sheriffs who have said they won’t enforce the new magazine ban, and, Adam Johnson, who owns Coat of Arms Custom Firearms, a store in Keizer, and lives in Marion County. Kaempf said he filed the suit in Pendleton since many members of the firearms federation “live in or near Pendleton.”

Kaempf said the suit was filed before measure takes effect “to prevent the irreparable injury to my clients.” They’re asking for a court-ordered injunction that would bar the measure from becoming law and a court ruling that Measure 114 is unconstitutional.

The legal landscape has dramatically changed since Measure 114 was drafted, and court challenges to similar bans on large-capacity magazines are pending in neighboring California and Washington states.

The federation’s lawsuit cites the significant ruling by the U.S. Supreme Court in a New York gun case in June, which set a new standard for evaluating Second Amendment claims. In a 6-3 ruling on June 23, the nation’s high court struck down a New York law that placed strict limits on carrying guns outside the home.

The Supreme Court’s majority directed courts to use a new “text-and-history” standard when evaluating challenges to firearms regulations – meaning one “rooted in the Second Amendment’s text, as informed by history.”

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 whether the regulation “is consistent with this Nation’s historical tradition of firearm regulation.”

It threw out a prior two-prong standard that courts had used for years: First, does the regulation infringe on someone’s Second Amendment right of self-defense, and if so, does the regulation further an important government interest.

The federation’s suit also argues that magazines that hold more than 10 rounds shouldn’t be considered “large capacity.”

“There is nothing unusual or novel about this technology. Many of the nation’s best-selling handguns and rifles come standard with magazines that can hold more than 10 rounds—and firearms equipped with such magazines are safely possessed by law-abiding citizens in the vast majority of States,” the suit says. “The reason for the popularity of these magazines is that in a confrontation with a violent attacker, having enough ammunition can be the difference between life and death.”

The suit contends that the magazines holding more than 10 rounds are protected under the Second Amendment, as they’re “in common use” for self-defense.

A similar challenge is pending before a federal district judge in San Diego, who has been directed by the nation’s high court to take a new look at whether California’s ban on large-capacity magazines passes constitutional muster, giving parties to the case until next spring to file further legal briefs.

The recent legal brief filed by California’s attorney general in response may give a preview of how Oregon’s attorney general will defend the measure against the federation’s suit.

In that case, California’s attorney general argues that the Supreme Court’s ruling in the New York case did not “decide anything about the kinds of weapons that people may possess,’’ and also made clear the Second Amendment is not a “regulatory straightjacket.”

“Nor does it protect a right to ‘keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” the attorney general’s brief said.

California’s latest brief filed Thursday in that case argues that nothing in the plain text of the Second Amendment covers the carrying of large-capacity magazines, that the magazines are not “Arms” because they’re not essential for the operation of a gun and would not have been considered “Arms” in 1791 or 1868. And , even if they were, they’re not entitled to Second Amendment protection because they’re not commonly used for self-defense.

Under Oregon’s Measure 114, licensed dealers who already own larger-capacity magazines have 180 days from the day the measure takes effect, to sell them to an out-of-state gun dealer or other person out of state or to destroy them.

After the 180 days, gun dealers can sell or transfer only newly manufactured high-capacity magazines marked with a special stamp denoting they’re for military or law enforcement use – two exceptions under the law.

People who already own the magazines can keep them in a private home, on private property, use them at a shooting range or in a shooting competition, or for recreational purposes such as hunting as allowed by state law. A violation would be a class A misdemeanor.

The firearm federation’s lawsuit largely takes aim at the new ban on large-capacity magazines but Kaempf said the plaintiffs are challenging the entire measure.

Liz McKanna, of the legislative committee for the pro-Measure 114 Lift Every Voice Campaign, and the measure’s chief petitioners have said they anticipate a legislative workgroup to be formed to clear up details that still need to be addressed, and would hope the governor or legislature could delay the implementation of certain provisions of the measure if the state police and local sheriffs can’t put a permitting process in place fast enough.

— Maxine Bernstein

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

Follow on Twitter @maxoregonian  

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