Oregon’s New Gun-Control Law is Unconstitutional

by
posted on February 8, 2023
Oregon welcome sign
Illustration: Gary Locke

The restoration of Americans’ constitutional right to keep and bear arms has been one of the great political success stories of the last 30 years. Occasionally, however, we still see regressions, and, in November, voters in the state of Oregon delivered one of the most-egregious examples of a backwards step that the United States has seen in decades. It was a disaster for our freedom.

By just 50.6% to 49.4%, Oregon’s electorate approved Measure 114, which not only prohibits the future sale and transfer of magazines that hold more than 10 rounds, but also requires Oregonians to obtain a government-issued permit before they can even purchase a firearm in their own state. To acquire those permits—which expire after just five years—applicants will be obliged to undergo a background check, to submit a photo ID and a copy of their fingerprints, to pay $65 and to attend a state-approved training course. At a stroke, the provision turns Oregon from a state that was largely in compliance with the Second Amendment into a state more akin to California or New York. What a difference a single percentage point makes.

As one might expect, lawsuits have swiftly flowed in. Thanks to the U.S. Supreme Court’s comprehensive decision earlier this year, in New York State Rifle & Pistol Association v. Bruen, these suits will require the state of Oregon to clear a high bar. “When the Second Amendment’s plain text covers an individual’s conduct,” the majority in Bruen pronounced, “the Constitution presumptively protects that conduct.” As such, it concluded, “the government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”

What Oregon has done clearly sits outside of that “historical tradition.” In most places, throughout most of U.S. history, eligible American citizens have not been required to procure a permit before exercising their core Second Amendment rights. At the margins, some regulation of the time, place and manner in which the right to keep and bear arms is exercised may pass constitutional muster. But Measure 114’s central rule—that law-abiding citizens cannot so much as obtain a lawfully available firearm without clearance from the state—can obviously not be said to be among them. In effect, Oregon has instituted a system of prior restraint on a liberty protected in the U.S. Bill of Rights, a system that is applied to no other federally enumerated right. This will not do.

Neither will the prohibition of standard-size magazines. The standard outlined in D.C. v. Heller (2008)—and subsequently given sharper teeth by Bruen—is that American citizens are protected in their right to own firearms that are “in common use.” Undoubtedly, this applies to magazines that can hold more than 10 rounds, which are not unusual or uncommon in any meaningful sense, and which come standard with a whole host of popular and broadly owned firearms. 

Many of the activists who favored Measure 114 asked why Oregonians “needed” magazines that could hold more than 10 rounds. But they clearly understand why, because, as implemented, Measure 114 exempts law-enforcement officers and active-duty military members from its restrictions. Really, this isn’t especially complicated: If you understand why a police officer might need more than 10 rounds, then you understand why an everyday citizen who has a gun for self-defense might need more than 10 rounds. There is a reason that the Second Amendment protects a “right of the people.”

If left unchecked, Oregon’s Measure 114 will become a model for gun-control activists around the country. To avoid a repetition, defenders of the Second Amendment must first demand that the courts strike down any provisions that violate the Constitution, and then get ready to fight the next incursion at the ballot box—before it ever gets that far. 

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