The state attorney general Friday petitioned the Oregon Supreme Court to either throw out rulings by a Harney County judge that block gun control Measure 114 from taking effect or direct him to explain why they should stand.
Assistant Attorney General Robert A. Koch argued in court filings that intervention by the state’s high court is necessary to allow “the will of the people of Oregon” to proceed.
In November, the measure narrowly passed with 50.7% of the vote. The measure calls for a permit to buy a gun and a criminal background check to be completed before a gun can be sold or transferred. It also restricts the sale, manufacture and use of magazines holding more than 10 rounds of ammunition.
Absent the state Supreme Court’s intervention, voters’ efforts to combat an “epidemic of gun violence” will be thwarted because the gun control measure’s regulations could be on hold for months or years until a final court ruling is made on the constitutionality of its restrictions.
As of now, Harney County Circuit Judge Robert S. Raschio’s orders halt Measure 114′s regulations “indefinitely,” Koch wrote.
Koch argued that the trial court doesn’t have the authority to make policy on a public safety matter and override the initiative process.
“Keeping people safe is a fundamental duty, mission, and purpose of government,” Koch wrote. “By ignoring binding precedent, the trial court disregarded the will of the people and forestalled the state’s efforts to protect Oregonians from gun violence.”
Raschio in the last two months halted all parts of the gun control measure, citing state constitutional law. The case filed in Harney County Circuit Court was brought by Virginia-based Gun Owners of America, its legal defense fund Gun Owners Foundation and two Harney County gun owners.
Raschio’s orders came in separate rulings. He found Gun Owners of America had shown that putting Measure 114 on hold will maintain the “status quo” until the court can determine whether the measure meets constitutional muster under Article 1, Section 27 of the Oregon Constitution, which establishes a right to bear arms.
He ruled that the public interest weighed against the implementation of the measure, noting that individual liberty is a “cornerstone of our country. First the people, then the state.” He also ruled that magazines that hold more than 10 rounds aren’t distinct from “arms” and therefore, protected by the Oregon Constitution.
Koch countered in the latest court filing that Raschio made “fundamental legal” errors and acted beyond his discretion. Article 1, Section 27 protects the right to bear arms commonly used by Oregonians for self-defense in 1859 and earlier -- and doesn’t relate to magazines that hold more than 10 rounds, Koch argued.
“Even if they did due to their use with firearms that qualify as ‘arms’ ..., the law’s restrictions pass constitutional muster as a reasonable promotion of public safety given the central role that (large-capacity magazines) play in deadly mass shootings,” he wrote.
Further, people who already own a magazine that exceeds a 10-round capacity can still keep them in their home or use them outside for limited recreational purposes, such as for target shooting or hunting, under Measure 114.
“Plaintiffs remain free to use all of their existing firearms with a compliant magazine, inside or outside of the home, regardless of Measure 114,” Koch wrote.
The state constitution doesn’t provide for “an unfettered right to possess or use constitutionally protected arms in any way they please,” he wrote.
Koch called the gun owners’ challenge to the permit-to-purchase requirement “wholly speculative” in that the process isn’t even in place yet. The state doesn’t expect to have the permitting system up and running until at least March 8 as it awaits adequate gun safety training courses to be made available for applicants statewide.
To obtain a gun permit, an applicant must pay a $65 fee, submit an application and fingerprints to local police or a sheriff’s office, undergo a background check by state police and complete a safety course, according to the measure.
Four other lawsuits filed in federal court elicited a different ruling from U.S. District Judge Karin J. Immergut, who delayed only the permit-to-purchase gun regulation but allowed the measure’s other regulations to take effect. Raschio’s orders, though, were binding, in that they resulted from a separate challenge to the state’s constitution, not the U.S. Constitution’s Second Amendment.
At a minimum, Koch argued, the state Supreme Court should put a hold on Raschio’s orders that prevent a criminal background check to be completed before a gun can be sold and the measure’s restrictions on large-capacity magazines.
He cited several tragedies, including the August shooting in a Safeway in Bend, in which a 20-year-old man armed with four 30-round magazines, all purchased legally, killed two people after he sprayed more than 100 bullets as he walked through the store’s aisles.
“The shooter originally planned to target Mountainview High School that September, from which he had graduated, before posting in a blog that he was ‘done waiting’; he opted instead to target the Safeway, at which he had previously worked. His stated goal was to cause ‘a significant event’ in which he killed dozens,” Koch wrote.
The state argued 19 of 21 mass shootings with 10 or more fatalities since 1999 have involved guns with magazines that hold more than 10 rounds.
“The longer that the trial court’s injunctive orders remain in effect — for the months or years in which the case is pending in that court — the greater the possibility of another comparable tragedy happening here in Oregon,” Koch wrote. “These dangers are real, and Measure 114 reasonably seeks to safeguard against them.”
The state Supreme Court will either accept or deny the petition. If it is accepted, the court will then decide whether to throw out Raschio’s orders or direct Raschio to explain why the high court should maintain them. The plaintiffs would be able to file their own briefs in support of Raschio’s rulings. It’s rare for the state’s high court to hold oral arguments at this stage but not out of the question.
Last month, the state Supreme Court rejected a previous effort by the attorney general’s office to intervene and block what was then a temporary restraining order issued by Raschio. That came before the Harney County judge was to hold a further hearing on a preliminary injunction -- a typically longer hold and which he granted.
Now, the state attorney general’s office contends it has a stronger argument, as Raschio’s rulings could be in place for months, if not years, said Michael Kron, special counsel to Attorney General Ellen Rosenblum.
-- Maxine Bernstein
Email mbernstein@oregonian.com; 503-221-8212
Follow on Twitter @maxoregonian
Our journalism needs your support. Please become a subscriber today at OregonLive.com/subscribe