A state lawyer urged the Oregon Court of Appeals Tuesday to allow voter-approved gun control. Measure 114 to go into effect, arguing that its regulations promote public safety without “unduly” restricting an Oregonian’s right to bear arms for self-defense.

Senior Assistant Attorney General Robert A. Koch said a state judge’s findings blocking the measure as unconstitutional were “far from consistent” and lacked “basis in Oregon law.” .

Attorney Tony L. Aiello Jr., representing gun rights advocates who challenged the measure, argued that Harney County Circuit Judge Robert S. Raschio made the right decision because the measure “unfairly” regulated all Oregonians without first determining whether they were dangerous or unfit to purchase a firearm.

For almost 40 minutes of pleadingsa three-judge panel of the appeals court asked what standard it should use to decide whether the measure complies with the state constitution.

Measure 114 passed in November 2022 with 50.7% of the state’s vote. It limits gun magazine capacity to 10 rounds or less, requires a permit to purchase a firearm, and closes the so-called “Charleston loophole” by requiring carrying out, not just launching , a criminal background check to purchase or transfer a firearm.

The week before the law comes into force, December 8, 2022, two Harney County gun owners filed a lawsuit challenging the permit requirement and magazine limit. They were joined by Virginia-based Gun Owners of America Inc., a major lobbying group behind multiple gun control challenges across the country, and the Gun Owners Foundation, which supports legal actions to defend the Second Amendment.

Raschio issued an emergency injunction blocking the measure from taking effect and subsequently held a trial on the merits of the suit. Last November, it found that its two main provisions requiring a license to purchase a firearm and banning high-capacity magazines violated the state constitution’s clause protect the right to bear arms.

Raschio said the state failed to demonstrate that any of these provisions would promote public safety, despite arguments from state lawyers that the new regulations were intended to reduce mass shootings. mass, suicides and homicides.

Koch told the appeals panel that it should not show deference to Raschio’s findings but decide for itself whether the language of Measure 114 is constitutional under state law.

“He can consider any facts he deems relevant to the legal issues before him,” he said. “Each of the three provisions (of the measure) is reasonable and apparently constitutional.”

Koch spent much of his time arguing that banning high-capacity magazines promotes public safety by preventing a barrage of gunfire like that of the October 1, 2017 massacre in Las Vegas, the largest mass shooting in U.S. history, when a gunman opened fire on a music festival since his hotel suite.

“A single shooter fired more than 1,000 bullets into a crowd of spectators in the space of 11 minutes. In 60 seconds, he fired 298 bullets, ultimately killing 58 people and injuring more than 800,” he said. “These are very distinct technologies, and military-style weapons, like modern high-capacity magazines, do not qualify for constitutional protection. »

“Virtually all” firearms will accept and operate with a magazine holding 10 rounds or fewer, Koch said.

Appellate Judge Josephine H. Mooney noted that some weapons used during the Civil War were capable of firing more than one bullet at a time.

Koch responded that the size of a gun historically limited the number of rounds it could fire. In the 1850s, he said Colt pepper guns and revolvers were most commonly used for self-defense and could hold between four and eight cartridges. In Oregon, the most common weapon used for self-defense then, he said, was a single-shot flintlock rifle.

Modern high-capacity magazines have generally been developed for military purposes and not for self-defense, he said.

Aiello said it was not the role of the appeals court to make new findings of fact.

He argued that Measure 114 is different from other laws in that it does not “target dangerous practices” or actions historically considered dangerous, such as shooting a firearm in a public place or carrying a concealed weapon .

“The law must meet the objective it purports to promote, in this case, public safety,” he said.

Raschio concluded that wasn’t the case — and the appeals court should do the same, he said.

Appeals Judge Kristina Hellman asked: “If we accepted your position, so anyway, the person seeking to enforce a law made by the people would have to prove that the law does what the people hoped it would do?

Aiello responded that that was not the position of gun rights advocates.

But Hellman asked: Isn’t the purpose of gun permits and background checks to “make sure that people who shouldn’t have guns don’t have guns?” don’t have any?

Aiello said the government can only restrict the use of firearms to certain people designated as dangerous or involved in dangerous practices, such as convicted felons or people who are mentally ill and institutionalized.

He argued that Measure 114 “is for all Oregonians” because it would require everyone to apply for a license and complete safety training before purchasing a gun.

“There is no case law from the Supreme Court or otherwise that gives people the authority to designate all Oregonians as inherently dangerous people,” Aiello said. “Basically, you’re presumed unfit until you prove otherwise to the government.”

Mooney then asked: Isn’t background check – done before a gun license is issued – used to determine who should not have a gun.

Aiello said people who buy guns are already subject to background checks under federal law and Measure 114 adds another one that must be done before a gun sale. The proposed background for the measure is identical, except it requires FBI verification via fingerprints, he said.

“This is a second background check. Prophylaxis upon prophylaxis. It’s useless,” he said.

Under current federal law, gun dealers can sell firearms without a background check if the check takes more than three business days. That’s how the shooter in a 2015 mass shooting in Charleston, South Carolina, bought his gun and killed nine people at a church.

Hellman asked why Aiello opposed closing the so-called Charleston loophole, which requires a background check before a gun is sold.

Aiello said the measure does not set a deadline for completing the check and offers no procedure for challenging a delay.

Koch reminded the court that the constitutional challenge rests on the text of the measure, not how it is implemented. In addition to the case record, he said the court could consider the measure’s preamble and voter pamphlet in making its decision.

He concluded by pointing out that more bullets in a magazine allow you to fire more rounds and cause more destruction.

“The defining characteristic of a high-capacity magazine is the ability to fire more than 10 rounds without having to stop to reload during mass shooting events. That means more shootings, more injuries, more deaths,” Koch said.

“Restricting them reduces the number of shootings, the number of injuries and deaths. We saw it in the Gabby Giffords shooting, the Poway synagogue shooting, and at Sandy Hook, where 11 first graders were able to hide or run to safety because the shooter had to do a break to recharge,” he said. “This pause can save lives, and it was reasonable that Oregon voters chose to demand one here.”

In April 2019, worshipers at the Chabad synagogue in Poway, a suburb of San Diego, confronted and chased a gunman after he emptied the 31-round magazine of an AR-15 rifle and before he cannot recharge it in the sanctuary. One person was killed and two others injured in the shooting.

During the 2021 Sandy Hook Elementary School shooting in Newton, Connecticut, nine first graders in a classroom were able to run out a door and two hid in a bathroom while the shooter was reloading. These students survived. The 20-year-old gunman shot and killed 26 people – 20 children aged 6 and 7 and six adult staff members.

Former Arizona U.S. Rep. Gabby Giffords was shot in the head in a January 2011 attack that left six people dead.

Hellman, Mooney and Judge Darleen Ortega said they would take the case under advisement. They have not indicated when they will govern.

— Maxine Bernstein covers federal court and criminal justice. Contact her at 503-221-8212, [email protected], follow her on @maxoregonianor on LinkedIn.

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