Why Oregon Ballot Measure 114 is Unconstitutional

posted on November 16, 2022
Doug Kerr courtesy Flickr

By the thinnest of margins, on November 8, Oregon voters appear to have passed an initiative that will require a permit to purchase any firearm, along with completing safety training. The license will be good for five years. Ballot Measure 114 also bans “large capacity magazines.”

At this point, you are asking, “Didn’t the Bruen decision prohibit such laws?” The answer is to look back in history. Brown v. Board of Education (1954) prohibited government segregation of public schools; however, for many years afterwards, states looked for “clever” ways around that decision. Each time, attorneys on the side of equal rights sued to stop them. The same will be true for Bruen; attorneys representing the Second Amendment (and the Oregon Constitution’s similar Art. I, sec. 27 clause) will have plenty of opportunity to earn their pay defeating these unconstitutional laws.

Bruen required states to justify gun regulations based on either the widespread presence of such laws or analogous laws in or immediately before 1791, when the states ratified the Second Amendment, or 1868, when the Fourteenth Amendment provided that the Second Amendment applied to the states. The burden is on the states to demonstrate that such laws existed. Given this requirement, Ballot Measure 114 has some serious constitutional problems:

First of all, there were generally no firearms purchase or possession licenses before 1791. There were outright bans on Native American and slave ownership. The one exception was a North Carolina law from 1840 that required a license to carry a gun. The North Carolina Supreme Court, in State v. Newson (1844), ruled that license was constitutional because Newsom was a free black, thus not a citizen. Every citizen enjoyed a right to carry arms without a license. By this reasoning, Oregon would be free to pass gun license laws for non-citizens.

Next, to obtain a license to purchase, you will have to pay Oregon a license fee. What other rights require payment of a license fee? Do you pay for a license to speak, print pamphlets, or be free from unwarranted searches?

In 1868, there were gun-license laws. These were part of the Black Codes passed after the Civil War to keep all those freed slaves subservient. The Fourteenth Amendment was explicitly written to overturn those parts of the Black Codes.

Oregon’s safety tests also have problems. Do you need to take a test on libel and slander laws and a grammar test before you can exercise your right to speak or write? Gun-control proponents have argued that safety training is justified because colonial militias had training requirements. The thing is, gun ownership was never conditioned on militia membership. Both gun ownership and militia were conditioned on citizenship. If Oregon wants to treat this as an analogous law, they can require citizens to own a military firearm and be part of the state militia (defined by Oregon Revised Statutes sec. 396.105).

The so-called “high-capacity” magazine ban is also unconstitutional. Reading California’s defense of its similar ban shows a serious logical flaw. They assert that magazines that hold over 10 rounds are rarely used. Most pistols come with magazines that hold 10 rounds or more. Obviously, they are in common use and therefore have constitutional protections.

For all these reasons and more, the NRA Institute for Legislative Action has labeled this the "most-extreme gun-control initiative." 


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