Measure 114 Ruling

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Harney County Circuit Court
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NOV 21 2023
Verified Correct Copy of Original 11/21/2023.
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Oregon Judicial Department
TWENTYFOURTH JUDICIAL DISTRICT
Robert S. Raschio, Presiding Judge
November 21, 2023
Tyler Smith & Associates, P.C. Oregon Department of Justice

Attn: Tony L Aieilo, Jr Attn: AAG Brian Marshall
181 N. Grant Street, Suite 212 1162 Court St. NE
Canby, OR 97013 Salem, OR 97301
Markwitz Herbold PC
Attn: Harry Wilson
Special Assistant Attorneys General
145 SW Broadway, Suite 1900
Portland, OR 97201
Re: Joseph Arnold and Cliff Asmussen, Plaintiffs v. Tina Kotek, Governor of
the State of Oreqon, Ellen Rosenblum, Attorney General of the State of
Oreqon, Casey Coddinq, Superintendent of the Oreqon State Police,
Defendants, Harney County Circuit Court case #22CV41008: Opinion
Letter Grantjng a Permanent Injunction Pursuant to ORS 28.020.
Parties:
The Harney County Circuit Court is issuing a Permanent Injunction under

Oregon Revised Statute 28.020 declaring 2022 Ballot Measure 114
'unconstitutional thereby permanently enjoining its implementation.
The court finds the plaintiffs have shown their rights to bear arms under
Article l, § 27 of the Oregon Constitution would be unconstitutionally
Harney Co. Courthouse, 4-50 N. Buena Vista #16, Burns, 0R 97720; PHONE (541)573-5207 FAX (541)573-5715
Grant Co. Courthouse, 201 S. Humbolt St, P.O. Box 159, Canyon City, OR 97820; PH (541)575-1438 FAX (541)575-2165
www.courts.oregon.gov
Samantha Dowell, Trial Court Administrator
2Permanent injunction in Arnold and Asmussen, Plaintiffs v. Tina Kotek, et al, Defendants.
impaired if Ballot Measure 114 is allowed to be implemented. Dovle v. City

of Medford, 356 Or. 336 (2014). Based upon a facial constitutional

evaluation of Ballot Measure 114, the measure unduly burdens the
plaintiffs' right to bear arms. State v. Christian, 354 Or. 22 (2013).
l. Standard of Review
The Oregon Constitution "has content independent of that of the federal

constitution." State v. Soriano, 68 Or. App. 642, 645 (1984)? Therefore,
any irreparable harm of Ballot Measure 114 must be analyzed separately
under Oregon law and is not dependent on a federal constitutional
determination. The pleading before this court focused solely on the
Oregon Constitution and the state constitutional analysis is dispositive.
According to Hon. Jack L. Landau, retired Oregon Supreme Court Justice,

the Oregon Supreme Court's analysis under Article l, § 27 developed from
a historical analysis:
"ln some cases, the court adopted a historical or originalist

approach, as in State v. Kessler. That case involved the meaning
of Article l, § 27, which guarantees the right to bear arms. The
court observed that federal court decisions construing the
Second Amendment guarantee of a right to bear arms 'are not
particularly helpful.' Turning to the meaning of the state
constitutional guarantee, the court declared that its task was 'to
respect the principles given the status of constitutional
guarantees and limitations by the drafters The court set out a
history of the provision, from its roots in the English Bill of Rights
of 1689 to colonial American fears of standing armies and
concerns for personal safety to the state constitution of Indiana,
from which the Oregon guarantee was borrowed. In the end, the
court concluded that the 'arms' that the state constitution
guarantees a right to possess consist of those that would have
been used by nineteenth-century settlers for personal defense
and military purposes."
1
This court will not reach the second amendment analysis since there has been a clear and convincing
showrng that Ballot Measure 114 is unconstitutional under Oregon Constitution Article l, § 27 under
Oregon jurisprudence.
3-Permanent injunction in Arnold and Asmussen, Plaintiffs v. Tina Kotek, et al, Defendants.
JACK LANDAU, An Introduction to Oreqon Constitutional Interpretation, 55

Willamette L. Rev. 261, 26566, Spring 2019.
State v. Hirsch similarly cited a range of modern treatises and articles on
the historical origins of the constitutional right to bear arms, including
writings of the framers of the Second Amendment of which Article l, § 27 of
the Oregon Constitution is a descendant. See, e.q., State v. Hirsch, 338
Or. 622 ("[W]e must discern the intent of the drafters of Article l, § 27, and
the people who adopted it.").
The Supreme Court has held total bans on types of weapons and firearms
used for self and state defense violate Article l, § 27. Hirsch at 4041
quotinq State v. Delqado, 298 Or. 395 at 403-404 ("The problem here is
that ORS 166.510(1) absolutely proscribes the mere possession or carrying
of such arms [switchblades]. This the constitution does not permit").
Building off and clarifying of past precedence, the Supreme Court created
the current constitutional interpretation of Article l, § 27 found in State v.
Christian, 354 Or. 22 (2013). The court laid out a fivepart test for any
statute that would restrain a firearm activity. First, the Oregon Constitution
prevents the legislature from infringing on citizen rights to bear arms in self
defense. ld_. at 30. Second, the term "arms" includes firearms and certain
hand carried weapons used for self-defense at the founding of Oregon. Id
2
Third, the legislative restraint is valid and reasonable if it is addressing
dangerous practices which allows for regulating the carrying and use of a
firearm. Id at 32 citinq State v. Robinson, 217 Or. 612, 618.3 Fourth,
restrictions must be reasonable in scope and for the purpose of promoting
public safety. fl. at 33-34. Fifth, the reasonable restrictions cannot unduly
frustrate the right to bear arms. Christian at 38 ("...the legislature may
specifically regulate the manner of possession and the use of protected
2
The Oregon Supreme Court, in its early interpretations of the Oregon Constitution ask the lower courts
to consider "what did those conservative pioneer citizens have in mind." Jones v. Hoss, 132 Or 175,
178-179 (1930).
3
A list of such legal restrictions is contained In Board of Countv Commissioners of Columbia Countv v
Rosenblum, 324 Or App. 221, footnote 11, which supports the use, possession, dangerous group
delineation on firearms restraints.
Further, dangerous groups contain individuals who "demonstrated an identifiable threat to public safety"
or are "serious lawbreakers" can be prevented from bearing arms. Christian, 354 Or at 3233 citing State
v. Hirsch/Friend, 338 Or 622, 679 and 67576 (2005).
4-Permanent Injunction in Arnoid and Asmussen, Plaintiffs v. Tina Kotek, et al, Defendants.
weapons to promote public safety as long as the exercise of that authority

does not unduly frustrate the right to bear arms guaranteed by Article l, §
27.").
The Supreme Court limited the judicial inquiry to a facial challenge of the
constitutionality of a statute in all applications. Christian at 40.
Considering of the above factors, the Oregon Supreme Court held the
legislature has "wide latitude to enact specific regulations restricting the
possession and use of weapons to promote public safety." Christian, 354
Or. at 33. The court upheld the City of Portland ordinance disallowing
loaded firearms in the city limits, unless under the control of a concealed
handgun licensee, because the restrained "conduct" of having a loaded
firearm "creates an unreasonable and unjustified risk or harm to members
of the public." |_d_. at 35.
ll. Historical Context for Oregon's Right to Bear Arms
"The people shall have the right to bear arms for the defence [sic] of
themselves, and the State, but the Military shall be kept in strict
subordination to the civil power." Oregon Constitution Article l, § 27.
At the time of adoption of the Oregon Constitution in 1857, the Oregon

territory legally existed since 1848. The first European settlement was Fort
George established in 1812, later named Astoria after being secured by the
Astor party from the United States. The first American colony was
established in 1834. The "great migration" from United States to the
Oregon country began in 1843. The period was marked by western
emigration and persistent violent conflicts with the Indian Tribes. As
described by Professor Brian DeLay of University of California, Berkley, in
his testimony, the emigrants were in a state of war with the Indian
population and used whatever firearms were available to them in defense
of themselves and their burgeoning community while pushing the native
tribes of their ancestral lands.
Professor Mark Axel Tveskov of Southern Oregon University testified that

during the Oregon territorial era, firearms were restrained by the supply
chain to the region, which was very distant from the supply sources on the
east coast of the United States, but in no other way by regulation by
government.
5-Permanent Injunction in Arnold and Asmussen, Plaintiffs v. Tina Kotek, et al, Defendants.
Professor Delay described the technological improvements over the

muskets of the revolution to the firearms of 1857 as consisting of five
general developments: fulminates; percussion cap ignitions; breach
loading; multi-shot technology; and metallic cartridges. The development
of fulminates allowed quick ignition of gun powder and improved propulsion
of projectiles leading to percussion caps which dramatically increased
reloading speeds. Multi-shot technology will be described below. Breach
loading allowed cartridges to be inserted into the barrel through the
buttstock which increased reloading speed. Metallic cartridges are the
modern bullet with the projectile and powder inside a single device which
allowed for breach loading from the stock. The user of the firearm no
longer needed to set the firearm on its stock, load the barrel with black
powder, place a ball down the barrel, tamp it in place, pick up the firearm,
place an ignition cap with fulminate and then shoot the weapon. The court
finds each of these developments were focused on improving efficiency in
firing speeds and ability to deploy more rounds when using the weapons at
a high rate of firing speed. As Dr. Delay stated in his testimony, there was
an "allure toward multi-shot technology."
The court finds the best firearm technology of 1857 and before was in the
Oregon territory pre-statehood. There is evidence in the historical and
archeological record of Colt revolvers and "buck and ball" technology.
Buck and ball were a paper cartridge consisting of a single ball and two
buck shots fired simultaneously like modern shotgun ammunition.
There were pepperboxes in the region, then the most popular multi-shot
firearm. Pepperboxes are multi-barrel handguns on a coaxially revolving
mechanism making them multishot firearms. The loading of the firearms
was difficult, the barrels had to be waxed or grease to hold the gun on
one's person and avoid self-injury. The gun typically had no more than six
barrels as more barrels proved too heavy for practical use. However, there
were some models with over ten barrels with smaller caliber ammunition.
As described by Professor DeLay, multi-shot firearms had made significant

advancements from the 18308 with the development of the Colt revolver
until statehood. Gunmakers had been pursuing multi-shot technology for
centuries prior to the revolver, but Colt achieved an outcome that laid the
foundation for all further multishot advancements. Additionally, the
development of the metallic cartridges in the 18508 was a large
6Permanent Injunction in Arnold and Asmussen, Plaintiffs v. Tina Kotek, et al, Defendants.
advancement multi-shot rifle technology leading to the Henry rifle of 1860

that could hold 1O rounds. In 1857, there were tubular magazines that
could hold 1O rounds. According to Dr. Delay, the citizen population in the
18605 was the best armed in the world.
Colt revolvers looked very similar to the revolvers of today. Loading would
require a loading of black powder, ball being seated on the powder,
percussion caps placed on the back of each First-generation revolvers
had to be partially disassembled, each bore greased or waxed, percussion
caps placed on the back nipples, powder being poured, and a ball tamped
into the chambers. Each chamber of the magazine would need to be
loaded with each of those five steps. Reloading a six-shot revolver in the
1830's would take 3O steps and take a minute and half to complete for an
experienced owner. The first weapons need the shooter to move the
chamber to the next round. As it was developed, a hinged loading lever
and capping window were added around 1839, improving reloading
speeds.
Firearms development happened quickly from 1830 until 1857. Shotguns

were in high use for personal protection. The militia generally had single
shot rifles and muskets. Some of the most highly soughtafter rifles were
breach-loaded Sharps rifles in the 18505, which were the "first solution" to
multi-shot rifles because of reduced reloading times and capacity to hold
more than one round at a time.
Ashley Hlebinsky, who was a museum curator integral in the development

of the Buffalo Bill Center of the West which contains 7000 unique historical
firearms dating back to the 15008 and who has extensive training on
firearms development at the Smithsonian American History Museum,
testified multishot technology had been researched and tested since at
least the 15003. The multi-shot technology was really revolutionized by
Colt in the 18305 with the onset of the industrial revolution. The court finds,
generally, gun makers were striving for repeater technology and there was
a proliferation of the technology in 1857 when Colt's patent ended.
The court finds, and all the experts agree, there was no clear distinction
between private and military use at the time of statehood. See also State
v. Kessler, 289 Or. 359, 368 (1980). Professor DeLay did testify most
private gun manufacturers were angling for military contracts but would sell
any firearm to private citizens who could afford one. Private citizens used
those firearms for selfdefense and defense of the state in the form of
Verified Correct Copy of Ori'ginal 11/21/2023.
militia activities. As early as 1803, Meriwether Lewis bought his large

capacity magazine weapon on the Lewis and Clark expedition to impress
upon the lndian Tribes American firearm superiority. As Professor Delay
explained there were examples of 10round firearm magazines prior to
1857, but issues with the technology that were not solved by statehood.
The Henry rifle, which was developed and completed by the Winchester
Repeating Arms company in 1860, was a breakthrough in firearms
technology allowing for over 10-round capacity in a tubular magazine with a
lever action repeating technology. See Also State v. Delgado, 298 Or. at
403 (Oregon's Constitutional Delegates "must have been aware that
technological changes were occurring in weaponry as in tools generally.
The format and efficiency of weaponry was proceeding apace. This was the
period of development of the Gatling gun, breach loading rifles, metallic
cartridges and repeating rifles"). Black powder, with the repeating firing,
would foul barrels requiring regular cleaning for the weapon to fired, and
produced significant smoke from repeating firing of cartridges, made the
rapidfire technology impracticable in most utilizations.
The court finds the metal cartridge, percussion cap ignition and repeating
technology, along with development of detachable magazines in 18703,
firearm automation and smokeless powder in the 18803, were the
foundation for the semi-automatic firearm. See Also Kessler at 369.
Further, the court finds, and each expert on firearm historical development
agreed, almost all emigrants to the Oregon Territory had firearms.
Firearms were a necessity of life for self-defense, service in the militia and
subsistence through hunting. Most had muskets, but many had rifles,
pistols, including revolvers and pepperboxes, and shotguns.
Along with firearm development, government developed in Oregon. There

were multiple attempts to have a constitutional convention in Oregon prior
to 1857. Ultimately, Territorial Governor George L. Curry encouraged the
creation of a state because it would likely mean drawing in more settlers by
creating protected routes of travel from the "Indian difficulties upon our
frontiers". CHARLES HENRY CAREY, editor, The Oreqon Constitution and
Proceedings and Debates of the Constitutional Convention of 1857, 1926,
pg. 20-21. After three prior electoral defeats, Curry's speech turned the
tide on the concept of a constitutional convention leading to the electorate
passing the initiative 7,617 for to 1,679 against, a "sweeping victory...more

remarkable in view of the previous repeated rejections". ld_. at 21-22.

Professor Tveskov testified that at the time of the constitutional convention,
the Rogue Valley Indian War was concluding to which at least two
delegates had a collateral relationship. Jesse Applegate had military
assistance to strike a road in that region during the fighting and LaFayette
Grover had engaged in diplomatic talks to end the conflict. The professor
testified the delegates, and citizens generally of Oregon, wanted the best
firearms they could have for defense of themselves and their communities.
Further, most emigrants could take a half day ride to town and purchase
any firearm that might be available for sale at the local mercantile, though
supplies were unpredictable since Oregon was so remote.
The convention opened at the courthouse in Salem, Oregon on August 17,

1857, concluding on September 18, 1857.
During the convention, a committee on the bill of rights was added to the
list of standing committees and framed the bill of rights "very closely [to] the
phraseology of similar provision in the Indiana constitution of 1851". ld at
28. Article l, § 27 was adopted without any noted debate by the delegates.
CLAUDIA BROWN and ANDREW GRADE, A Legislative History of
Oregon, 37 Willamette L. Rev. 469 (2001). The court infers from that silent
record that no concerns were raised over the types of firearms allowed for
self or state defense.
The voters of Oregon, special election on November 9, 1857, adopted

in a
the constitution by a vote of 7,195 for and 3,217 against. Id at 27.
Each historical expert agreed, and the court finds, that delegates to the
Oregon constitutional convention, and those voting for the constitution,
would have been generally aware of firearms development and multishot
technology. Professor Tveskov described textual evidence of Oregonians
knowing and thinking about all the technological advancements to firearms
and wanting the finest firearms technology available. Additionally, the
court finds the highest level of firearm development had been introduced in
Oregon at the statehood.
The best evidence for a constitutional provision's intended meaning is to

examine the wording of the provision. State v. Mills, 354 Or. 350, 356
(2013).
The court finds the historical record produced in this case well developed
and provides clear and convincing evidence of the intent of the framers and
people adopting the Oregon Constitution in the election of 1857. See
Hirsch, 338 Or. at 643.
"A constitution is dependent upon ratification by the people. lts language
should therefore be considered in the sense most obvious to the common
understanding of the people at the time of its adoption." LANDUA at 266.
Our constitution was derived from the voters in November of 1857 and
requires deference as much as anything derived from voters now.
A constitutional provision must be considered under that lens.
"In construing theorganic law, the presumption and legal
intendment are that every word, clause and sentence therein
have been inserted for some useful purpose. School District
No. 1, Multnomah County v. Binqham, 204 Or. 601, 611 (1955).
When so engaged, the object is to give effect to the intent of the

people adopting it. But this intent is to be found in the
instrument itself. It is to be presumed that the language which
has been employed is sufficiently precise to convey the intent of
the framers of the instrument."
Monaqhan v. Sch. Dist. No. 1, Clackamas County, 211 Or. 360, 36667
(1957).
The question for the court to answer is what did the voters of 1857
understand Article l, § 27 to mean? The answer lies with voters heavily
reliant on firearms for their basic subsistence and protection; voters
engaged in forceable removal of the indigenous tribes of Oregon, which the
settlers described as war and which they engaged in militia-type service;
voters who wanted the very best weapons they could procure for those
purposes and a clear lack of governmental restraint on the types of
weapons available to the public, both private and military grades. The
court finds the voter of 1857 did not seek to restrain access to the best
firearms with the highest functionality possible they could procure.
That answer is bolstered the first case on selfdefense with a firearm
landing in the Oregon Supreme Court in 1861. The opinion was written
under the pen of Justice Rueben Boise4, establishing the legal rule, with a
foundation in English common law, for the use of deadly force in self
defense. The rule continues in similar form in the law today. Justice Boise
wrote:
"If [the defendant] believing he was in actual and imminent

danger of death, or great bodily harm, should kill [the
decedent], think he would be justified. By the common law,
l
one acting from appearances in such a case, and believing the

apparent danger imminent, would be justified, though it
afterwards turned out that there was no real danger, and the
gun of assailant was only loaded with powder...the court should
have instructed the jury, that, if they believed, from the
evidence in the case, that there was reasonable ground for [the
defendant] to believe his life in danger, or that was in danger of
great bodily harm from the deceased, and that such danger
was imminent, and he did so believe, and acted on such a
belief killed the deceased, he was excusable; and there it was
not necessary that he should wait until an assault was actually
committed."
Goodall v. State, 1 Or. 333, 336-337 (1861).
4 Rueben Boise Is an important figure in early Oregon history. Territorial prosecutor starting in 1852, his
first case as a prosecutor was to advocate for a formerly enslaved petitioner against his former enslaver
to achieve freedom for the petitioner's children held in bondage by the enslaver contributing to Oregon's
character as a free state See R. GREGORY NOKES, Breaking Chains: Slavery on the Trail, 2013, pg
72-93 He was successful in the litigation.
As a territorial judge, he presented the preamble for an unanimously passed bill to resubmit the question
of state government to a popular vote in 1856. CAREY at pg. 17 Many attacks were laid at the proposal
by the editor of Oregonian, Thomas J. Dryer, who later was a delegate to the Constitutional Convention of
1857. Among those attacks that immigration was being stunted by the lndian Wars and the federal
government was unlikely to pay the lndian war claims accrumg from them, leading to a large war debt for
the newly created state. CAREY at pg 18. Boise was undeterred and ultimately his faction was
successful
Boise was a delegate to the constitutional convention and appointed as head of the committees on the
legislative department and seat of government and public buildings. CASEY at pg. 29. He was among
the "leaders of the pOIICIes of the convention." ld
He was elected as one of the first four Justices of the Oregon Supreme Court in 1859, serving in the role
of Chief Justice three times (18641866, 1870-1872 and 18761880).
Parenthetically, in Goodall, the defendant shot twice from a pistol with

repeater technology after the decedent drew his pistol and threated
violence.
The historical record supports the court finding that self-defense using a
firearm was justified when threatened with imminent threat of deadly force
and the firearms available were pistols, shotguns, rifles and muskets. The
pistols were multishot capable, and the pistols and rifles had repeating
technology. See Christian, 354 Or. at 30.
lll. Ballot Measure 114 Severability Clause
As stated on the record, the court finds Sections through 1O are

1
severable from Section 11 of Ballot Measure 114. Sections 1 through 10

relate to a permit-topurchase scheme and its application to multiple
statutory sections of current Oregon law. While some sections further
tweak current statutes to add additional restraints on the purchase of
firearms, the overall emphasis is on the permit-to-purchase application to
those statutes. Section 11 relates to a large capacity magazine ban and
has limited reference to the permitto-purchase scheme. The court
believes it appropriate to analyze those two statutory schemes separately
pursuant to Section 12 of Ballot Measure 114.
This court does not hold a line-item veto allowing it to redline the language
of Ballot Measure 114 to make it read in a constitutional way. Such an act
ofjudicial power would be a true arrogation of authority reserved for the
legislative branch. Sections 110 each and all contain the language
"permit-to-purchase" or "permit" both in titling of the sections and the
language within the body of the text. The court cannot practicably rewrite
those statutory changes to make them constitutional.
For example, Section 4 outlines the permit-to-purchase process, section 5,

the appeal process, and the remaining sections apply the permitting
process to various sale of firearm provisions. As this court noted in its
opinion letter of January 3, 2023, the "language the defendants urge the
court to use to sever is inexorably linked with the permit-to-purchase
program. To find otherwise requires the court to ignore the operative
language linking each provision on background checks to the permit-to-
purchase program. The court would be separating sentences at commas
and considering the phrase 'permit holder' surplusage. lt is not

surplusage." The court does not have the authority to strike language word
by word, comma by comma. Clear to the court, each section is so
essentially and inseparably connected with and dependent upon the
unconstitutional permitto-purchase scheme, the court finds it is apparent
the remaining parts would not have been enacted without the
unconstitutional part. ORS 174.040(2). Further, removing the permit-to
purchase or permit language would leave the remaining parts, standing
alone, incomplete and incapable of being executed in accordance with the
legislative intent, except as to Section 11. ORS 174.040(3).
As to Section 11, the court will not strike or add language to remedy the
clear typographical errors or bring the language of the section in
conformance with the language of other states' statutes to create an
application for the adoptive statute doctrine. ln fact, to do so is inapposite
to that legal doctrine. ln fact, the legislature has given clear direction on
this type of issue. ORS 174.010 limits the court in "the construction of a
statute, the office of the judge is simply to ascertain and declare what is, in
terms or in substance, contained therein, not to insert what has been
omitted, or to omit what has been inserted; and where there are several
provisions or particulars such construction is, if possible, to be adopted as
will give effect to all." Ballot Measure 114 would have the court exercise
authority in clear violation of the separation of powers doctrine as described
in ORS 174.010. The court will determine whether the section, on its face,
is constitutional.
lV. Ballot Measure 114 Permit-to-Purchase Scheme is Facially

Unconstitutional
Oregon citizens have a right to selfdefense against an imminent threat of

harm, which is unduly burdened by Ballot Measure 114.
Three salient facts were agreed upon by the parties at trial: A) Ballot
Measure 114 delays the purchase of firearms for a minimum of 3O days; B)
the permit-to-purchase program derives its language source in the
concealed handgun license statutes (ORS 166.291, et. al); and C) the
Federal Bureau of Investigations (FBI) refuses to conduct criminal
background checks. The court finds these agreed to facts are fatal to the
constitutionality of the permit-to-purchase scheme.
13-Permanent Injunction in Arnold and Asmussen, Plaintiffs v Tina Kotek, et al, Defendants.
A. The right under Article l, § 27 is the ability to respond to the imminent

threat of harm which is unduly burdened by the 30-day delay.
"As a general proposition, individuals in Oregon have a right to possess

firearms for the defense of self and property under Article l, § 27, of the
Oregon Constitution." Willis v. Winters, 350 Or. 299, footnote 1 (2011).
axiomatic that we should construe and interpret statutes 'in such a

"It is
manner as to avoid any serious constitutional problems." Easton v. Hurita,
290 Or. 689, 694 (1981) cited by Bernstein Bros. v. Dep't of Revenue, 294
Or. 614, 621 (1983). This court has attempted to follow the axiom, but
simply cannot avoid the serious constitutional problems with Ballot
Measure 114. This court finds the permitto-purchase facially
unconstitutional unable to applied in a constitutional way under any factual
circumstances.
Oregon has an array of statutes allowing and limiting selfdefense and the
types of use of force available to citizens in response to a threat of harm
from another.5 Imminent use or use of unlawful physical force is required
5
ORS 161.209 Use of physical force in defense of a person. Except as provided in ORS 161.215
and 161.219, a person is justified in usrng physical force upon another person for selfdefense or to
defend a third person from what the person reasonably believes to be the use or imminent use of unlawful
physical force, and the person may use a degree of force which the person reasonably believes to be
necessary for the purpose
ORS 161.215 Limitations on use of physical force in defense of a person.
(1) Notwithstanding ORS 161.209, a person is notjustrfled in using physrcal force upon another
person if
(a) Vlfith intent to cause physical Injury or death to another person, the person provokes the use of
unlawful physical force by that person.
(b) The person Is the initial aggressor, except that the use of physical force upon another person
under such Circumstances Is Justifiable if the person withdraws from the encounter and effectively
communicates to the other person the intent to do so, but the latter nevertheless continues or threatens to
continue the use of unlawful physical force.
(c) The physical force involved is the product of a combat by agreement not specifically authorized by
law.
(d) The person would not have used physical force but for the discovery of the other person's actual
or perceived gender, gender identity, gender expression or sexual orientation
(2) As used in this section, "gender identity" has the meaning given that term in ORS 166.155
to trigger the statutory defense. For use of deadly force, a citizen is only
allowed to use such force if there is use or threatened use of physical force
against the citizen while the perpetrator is committing a felony. See ORS
161.219 and ORS 161.225. The legislature recognizes citizens are placed
in imminent threat of violence inside their homes have the right to use
deadly force to protect themselves from that threat. The court must give
deference to the controlling statutes on selfdefense. State v. Sandoval,
324 Or. 506, 51112 (2007).
The Oregon Supreme Court, in Sandoval, held:
ORS 161.219 Limitations on use of deadly physical force in defense of a

person. Notwithstanding the prOVISIons of ORS 161.209, a person is notjustifled in using deadly physical
force upon another person unless the person reasonably believes that the other person is.
(1) Committing or attempting to commit a felony involvmg the use or threatened imminent use of
physical force against a person; or
(2) Committing or attempting to commit a burglary in a dwelling; or
(3) Using or about to use unlawful deadly phySIcal force against a person.
ORS 161.225 Use of physical force in defense of premises.
(1) A person in lawful posseSSIon or control of premises is Justified In using physical force upon
another person when and to the extent that the person reasonably believes it necessary to prevent or
terminate what the person reasonably believes to be the commission or attempted commission of a
criminal trespass by the other person in or upon the premises.
(2) A person may use deadly physical force under the circumstances set forth in subsection (1) of this
section only.
(a) ln defense ofa person as prOVIded In ORS 161.219, or
(b) When the person reasonably believes it necessary to prevent the commission of arson or a felony
by force and violence by the trespasser.
(3) As used in subsection (1) and subsection (2)(a) of this section, "premises" Includes any building as
defined in ORS 164.205 and any real property. As used in subsection (2)(b) of this section, "premises"
includes any bUIlding.
ORS 161.229 Use of physical force in defense of property. A person is justified in usmg physical
force, other than deadly physical force, upon another person when and to the extent that the person
reasonably believes it to be necessary to prevent or terminate the commission or attempted commissmn
by the other person of theft or criminal mischief of property
15Permanent injunction in Arnold and Asmussen, Plaintiffs V. Tina Kotek, et al, Defendants.
"[T]he statute...sets out a specific set of circumstances that

justify a person's use of deadly force (that the person reasonably

believes that another person is using or about to use deadly force
against him or her) and does not interpose any additional
requirement (including a requirement that there be no means of
escape). That impression is not altered by the requirement in
ORS 161.209 that the use of deadly force be present or
'imminent,' or by the same statute's reference to 'the degree of
force which the person reasonably believes to be necessary.' We
conclude, in short, that the legislature's intent is clear on the face
of ORS 161.219: The legislature did not intend to require a
person to retreat before using deadly force to defend against the
imminent use of deadly physical force by another."
Id at 51314.
Oregonians have no duty to retreat from their homes when under imminent
threat of harm prior to using deadly physical force. l_d_. at 514. Given
Oregonians statutory and constitutional rights use of deadly physical force
under the appropriate circumstances, Ballot Measure 114's permit-to-
purchase scheme is an unconstitutional restraint.
ln fact, the scales, at least in rural communities, regarding Ballot Measure

114 weigh negatively on public safety. The court finds that the testimony of
Harney County Sheriff Dan Jenkins, who leads five deputies, and Union
County Sheriff Cody Bowen, who leads fifteen deputies, demonstrated
definitively citizens cannot rely on law enforcement to respond quickly to their
needs if they are subject to a break in or threat of deadly physical harm.
Victims can be left without a law enforcement response for hours. A citizen's
need to protect themselves, their loved ones and their property is immediate
as there is no one else will be there to do it for them. 6
6
As the Oregon Court of Appeals wrote' "the [Oregon] Supreme Court traced the historical context of
Article l, § 27, of the Oregon Constitution and in domg so, examined the adoption of the Second
Amendment. The court noted that the framers of the United States Constitution considered those who
committed crimes to be outSIde of the right to bear arms: "'[T]he general view of the framers of the
Second Amendment that a certain criminal elementnotably, 'outlaws' using weapons or otherwise
committing Injurious crimes against person and propertyoccupied a lesser status In the community than
the responsible, lawabiding citizenry, particularly respecting the bearing of arms State v. Parras, 326
Or. App 246, 255, 531 P.3d 711, 716 (2023). Ballot Measure 114 imposes that large burden on law
abiding citizens.
16-Permanent Injunction in Arnold and Asmussen, Plaintiffs V. Tina Kotek, et al, Defendants.
The court further finds the 30day absolute prohibition on the initial purchase
of a firearm is not permitted under the Oregon Constitution. The Oregon
Supreme Court held as such in Christian when it found the Portland
ordinance was "not a total ban on possessing or carrying a firearm for self-
defense in public like those bans that this court held violated Article l, § 27
in previous cases." Christian at 40. The court finds there are no reasonably
likely circumstances in which the application of [Ballot Measure 114 sections
1 through 11] would pass constitutional muster." Id at 42 quotinq State v.
Sutherland, 329 Or. 359, 365 (1999).
B. Ballot Measure 114 mimics the concealed handgun license scheme

reducing the right to bear arms to an unduly burdensome
administrative due process right.
Possessing a concealed weapon is a privilege in Oregon. Without a

concealed handgun license ("CHL"), a weapon must be openly carried to
alert other citizens said citizen is carrying a firearm. Open carry of a
firearm is right of all citizens who are not otherwise precluded from
possessing a firearm. As the Oregon Supreme Court describes:
"The Court of Appeals stated: 'As a logical matter, if the general
prohibition against possessing a concealed firearm without a
license is constitutional, then it follows that ORS 166.250(2)(b),
which allows greater freedom to possess firearms, cannot be
unconstitutional.' We agree."
State v. Perry, 336 Or. 49, 58 (2003).

The court agrees with defendants' argument that the permit-to-purchase
statutory framework is an analog of the CHL statutory framework. The legal
interpretation of the CHL framework likely to be applied to Ballot Measure
114. The language of each is ejusdem generis, requiring that the language
of Ballot Measure 114 be given the same legal meaning as the CHL
statute. "Words that are legal terms of art are exceptions to that rule [of
plain, ordinary meaning be ascribed to a word]; we give those words their
established legal meaning, often beginning our analysis with Black's Law
Dictionary. Muliro, 359 Or. at 746, 380 P.3d 270; State v. Dickerson, 356
Or. 822, 829, 345 P.3d 447 (2015) (interpreting statutes by giving "legal
terms * * * their established legal meanings')." Gordon v. Rosenblum, 361

Or. 352, 361 (2017).
The courts conducting a legal review of decisions to deny a concealed

firearms license have done so under a rational basis test. Perm at 59
(2003) ("Our discussion of ORS 166.250 demonstrates that the legislature
intended to create licensing requirements, with exceptions, for the
possession of concealed weapons. Drawing a distinction between business
owners and employees for purposes of one of the exceptions to the license
requirement is not irrational.").7
The standard ofjudicial review for regulations under Article l, § 27 is
intermediate scrutiny. See Christian. This court recognizes the
intermediate scrutiny standard was applied by Oregon Supreme Court in
weighing the ordinance against the Second Amendment right to possess a
firearm under the United States Constitution. However, the use of
intermediate scrutiny by the supreme court highlights the importance of the
right to bear arms under Oregon law. This court finds that the use of a
rational basis structure to deny a primary right does not meet the Supreme
Court's requirements of intermediate scrutiny. The court also finds that the
use of the same language in both Ballot Measure 114 and the concealed
weapons statutes undermines the importance of the right by directing
courts to reduce the standard of review to a rational basis test for a
constitutional right.
For example, ORS 166.291 outlines an extensive list of requirements to

'
receive a CHL. ORS 166.293 allows an officer to deny a CHL if:
Notwithstanding ORS 166.291 (1), and subject to review as

provided in subsection (5) of this section, a sheriff may deny a
7
Other types of cases allowing the low bar of rational basis analysis on constitutional issues include, but
are not limited to, searches of probationers without the need for a warrant based upon probable cause.
State v. Gulley, 324 Or. 57 (1996), revocations of the privilege of probation State v. Martin, 370 Or. 653
(2022), reviewing convictions in Post-Conviction Relief Watkins v. Acklev, 370 Or. 604 (2022), Revocation
of professional licensure Sachdev v. Oreqon Medical Board, 312 Or. App. 392, Denial of entry into
government burldings State v. Koenig, 238 Or. App. 297 (2010), Placement In segregated housing in a
prison Barrett v Belleque, 344 Or 91, Rights after convrction for a parole hearing Rivas v. Board of
Parole and PostPrison Supervision, 272 Or App 248 (2015).
None of these types of matters, or the others operating with a rational basis standard, are restraints, in
the first instance, on a constitutional right.
concealed handgun license if the sheriff has reasonable

grounds to believe that the applicant has been or is reasonably

likely to be a danger to self or others, or to the community at
large, as a result of the applicant's mental or psychological
state or as demonstrated by the applicant's past pattern of
behavior involving unlawful violence or threats of unlawful
violence."
Compare that language to Ballot Measure 114 Section 4(1)(b)(C) where a

person may obtain a permit-topurchase so long as the person "does not
present reasonable grounds for a permit agent to conclude that the
applicant has been or is reasonably likely to be a danger to self or others,
or to the community at large, as a result of the applicant's mental or
psychological state or as demonstrated by the applicant's past pattern of
behavior involving unlawful violence or threats of violence." The conduct
described would have to be separate from objective standards such as
convictions from crimes, mental health or domestic violence courtordered
restraints on firearm possession or prohibitions based upon release
agreements. See Ballot Measure 114 Section 4(1)(b) (AB) and Section
4(2) see also Concealed Handqun License for Stanley v. Myers, 276 Or.
App. 321, 331 (2016).
ORS 166.293(5) is a judicial review process nearly identical to the Ballot
Measure 114(5)(5) judicial review process. The judicial review standard for
a denial of a CHL under the "reasonable grounds" is characterized by the
court as:
"It is notclear that the proceeding under ORS 166.293

appropriately can be characterized as an 'equitable action or
proceeding'. Rather, it is a special statutory proceeding to
review a decision by an elected county official, more in the
nature of an administrative review proceeding under the
Administrative Procedures Act...the issue for the reviewing
court is the correctness of that determination..."
Concealed Handgun License for Stanley v. Myers, 276 Or. App. 321, 328
(2016).8
8
The opinion was penned by now Chief Judge of Court of Appeals Erin Lagesen on a panel with now
Oregon Supreme Court Chief Justice Meagan Flynn and Justice Rebecca Duncan
The court finds a due process administrative review hearing undermines

the right to bear arms by allowing the consideration of all types of
information that would not be allowed in court proceeding where the rules
of evidence would apply. Stanley at 331. This process meets the rational
basis rule allowing a review of a decision by an elected official under the
principles of due process, a very low bar of review with hardly any
procedural protection for an applicant. ld at 339. The review process
does not meet an intermediate scrutiny standard. The burden falls on the
government:
"[l]s to prove that the regulation at issue survives a 'heightened'
level of scrutiny. See, e.q., Binderup v. Attorney Gen. United
States of Am., 836 F.3d 336, 347, 356 (3d Cir. 2016),
gfl, 137 S. Ct. 2323, 198 L.Ed.2d 752 (2017) (once the
challengers have carried their burden to show that their
offenses were not serious and have distinguished their
circumstances from persons historically excluded from the right
to bear arms, the government must 'meet some form of
heightened scrutiny'in Binderup, intermediate scrutiny);
accord Kanter v. Barr, 919 F.3d 437, 442 (7th Cir. 2019) ('We
have consistently described step two as 'akin to intermediate
scrutiny' and have required the government to show that the
challenged statute is substantially related to an important
governmental objective."
State v. Shelnutt, 309 Or. App. 474, 47778, review denied, 368 Or. 206
(2021).
Rational basis reviews of government actions do not meet the heightened
standards required under Intermediate Scrutiny.
The court finds much like concealed handgun hearings, there is no
evidence competency rule in Ballot Measure 114 Section 5(5). While a
citizen denied a permit-to-purchase has the due process right to be heard
and present evidence, the core determination of the court would remain
"did the permitting agent have reasonable grounds to deny the permit?"
Reducing the right to bear arms by a lawful citizen with unsubstantiated,
uncharged, hearsay-based alleged conduct because it was written in a
police report or testified to by scorned lover on uncharged conduct that she
had earlier denied, is unduly burdensome to the primary right to bear arms.
See Stanley at 331.
intermediate Scrutiny is a recognition that the right to bear arms is a

protected right. The state must have an important government objective
and competent evidence to allow a restrain on the right. The court finds the
"reasonable grounds" review under Ballot Measure 114 using a rational
basis test to deny a permit-to-purchase, does not meet the constitutional
standard required under Christian. 9 The court further finds that Ballot
Measure 114 is unduly burdensome by flipping the burden of proof,
requiring citizens to prove they are not dangerous, rather than the state
meeting the intermediate scrutiny standard proving a citizen is too
dangerous to own a firearm.
C. The lack of Federal Bureau of Investigations background checks

means permits cannot be issued without full judicial review unduly
burdening the right to bear arms.
The parties have stipulated that the Federal Bureau of Investigations

("FBI") will not conduct background checks on applicants who apply for a
permittopurchase a firearm. The defendants invite the court to assume
that the permits will be issued anyhow. The defendants provide no
evidence on why that the assumption would be true.
A plain reading of Ballot Measure 114 Section 4(1)(e) clearly contradicts

that assumption:
"The Federal Bureau of Investigation shall return the fingerprint

cards used to conduct the criminal background check and may
not keep any record of the fingerprints. Upon completion of the
criminal background check and determination of whether the
permit applicant is qualified or disqualified from purchasing or
otherwise acquiring a firearm the department shall report the
9
The first description of intermediate scrutiny by the Oregon Supreme Court was "[tjhe Supreme Court
when faced with gender discrimination challenges imposes what has come to be known as an
"intermediate tier" scrutiny somewhere between a "rational basis" equal protection test and a "strict
scrutiny" test." Matter of Comp. of Vlfilliams, 294 Or. 33, 4O (1982)
results, including the outcome of the fingerprint-based criminal

background check, to the permit agent."
Ballot Measure 114 further direct that during the FBI background check,
state police must investigate the applicant further, but they must rely on the
FBI to complete the check prior to issuing a permit. The parties stipulate
the state cannot order the FBI to conduct a background check. Further,
there is no opt out language in Ballot Measure 114 to not complete these
background checks. The FBI has stated that language of 'the permitting
agent or their designee' prohibits the FBI from assisting Oregon because
Public Law 92-544 is clear only law enforcement can receive the FBI
background check, not designees."
1°
On November 10, 2023, each of the defendants filed an amended admISSIon Including a set of emails
between defendants' attorneys and the United State Department of Justice. The salient paragraph of
those emails for this court's findings is from Joshua K. Handel], Senior Counsel Office of the Deputy
Attorney General, U.S. Department of Justice on October 26, 2023'
"As discussed on our call, FBI is willing to extend a grace period during which the State of
Oregon will be permitted access to FBI criminal history record information (CHRI) while
the Department of Justice continues to review whether Oregon's law complies with
federal requirements
That allowance is contingent on Oregon's assurance that it will not designate any private
party to act as a Permit Agent or otherwnse receive CHRI during the grace period Cf.
Measure 114, sec 3(4) ("'Permit Agent' means a county sheriff or police chief with
Jurisdiction over the residence of the person making an application for a permitto
purchase, or their designees." (Emphasis added)). In the event a county sheriff or police
chief opts to designate another person to serve as Permit Agent, such a designee must
be a subordinate officer to the county sheriff or police chief who is employed in the same
office"
Even if this grace period could be executed with each of the state's 36 sheriffs under the terms outlined
by the FBI, the rights of Oregonians would hang on the determination of the FBI whether to continue
conducting background checks for the state under Ballot Measure 114 At any moment, the FBI could
declare, and Oregonians would be without legal recourse, that the FBI can no longer provide background
checks.
Even haVIng background checks does not save the constitutionality of the Ballot Measure 114 and this
new wrinkle does not change the court's analysis. The defendants negotiated the above paragraph With
the federal government starting November 23, 2022, until November 3, 2023 A right of Oregonians
under their Oregon Constitution should not be subject to an administrative determination of a federal
agency which took a year to grant a grace period and could in a moment end it.
No further hearing is necessary on this late-filed wrinkle, as the outcome of a hearing does not change
the analysis of the court that the required thirty-day delay of Ballot Measure 114 does not meet the
imminency requirement of Article l, § 27 The delay of 30 days is unconstitutional If the FBI eliminates
background checks, there would be a further delay protracting the unconstitutionality. The grace period
is not particularly germane to the court's overall analysis of the constitutionality of the measure.
The court finds the fact that background checks cannot be completed is
fatal to the permitto-purchase provisions. ORS 174.040(3). The court
agrees with the plaintiff that the FBI background check is required by the
Ballot Measure 114 and "no Oregonian will be able to be issued a permit-
to-purchase by any permit agent in the state and will be forced to seek
relief under Section 5 of the Measure at the 30-day mark." Plaintiff's trial
memorandum, pg. 29." Requiring every applicant to go through judicial
review, without any other reason than the state cannot meet the
requirements of the law, is unduly burdensome on their right to bear arms
as it requires all Oregonians to prove they are safe to possess a firearm,
flipping the current protections of the right to bear to arms on its head.
Supra.
lt is worth noting that getting a permittopurchase does not create "any

right of the permit holder to receive a firearm." Ballot Measure 114, section
4(6)(a).
The court finds the lack of FBI background checks further devolves
the right and does not meet the test under Christian for the reasons
outlined above. During the 30-day delay, along with a subsequent
required judicial review, the permittopurchase scheme facially
prevents the applicant from defending themselves or "for the defense
of community as a whole", the guaranteed right under Article l, § 27.
Hirsch, 338 Or. at 633.
D. Permit-to-purchase policy is unreasonable and unduly

burdensome on the right to bear arms.
The court finds Sections through 11 of Ballot Measure 114 are facially
1
unconstitutional under Christian analysis as follows:
First, the Oregon Constitution prevents the legislature from infringing on

citizens" rights to bear arms in selfdefense and the 30-day delay in
11
Further, the Eastern Oregon Counties Association has misread Ballot Measure 114. They stated in
their Amicus brief that many counties are unable to fund and/or staff the permittopurchase program so
citizens will have to travel great distance to other counties to get a permit. The citizen would not be
allowed to do so, as they must apply with a permit agent in the "jurisdiction over the residence of the
person". Ballot Measure 114 Section 4(1)(a)
obtaining a firearm through the permitting process does infringe on citizens

ability to protect themselves from an imminent threat of harm.
Second, the term "arms" includes firearms and certain hand carried
weapons used for self-defense in 1857. Sections 1 through 11 effect all
firearm purchases, thus imposing on all legal arms used for selfdefense.
Third, the legislative restraint is valid and reasonable if it restrains

dangerous practices by regulating the carrying and use of a firearm. Ballot
Measure 114 creates a barrier to all firearm purchases by assuming the
very act of owning firearm is a dangerous practice. The defendants failed
to provide any convincing evidence of a threat to public safety requiring a
permitting process. The defendants did not link the harms of suicide and
homicide to the immediate sale of firearms failing to demonstrate that a 30-
day delay would change those tragic outcomes. Even if they had, they did
not provide sufficient evidence to find these harms require a complete
restraint on firearm purchases for at least 30 days.
Fourth, the "carry or use" exercise of policing powers is only allowed for
reasonable restriction on ownership of weapons that promote public safety.
The court finds no evidence in the record that public safety is promoted by
the permitto-purchase policy. The defendant showed there is a harm from
gun violence in terms of injuries and deaths, but as stated above provided
no evidence the program would help reduce those harms. The court finds
the number of deaths from homicides and suicides weighed against the
right to self-defense with a firearm weigh against the permittopurchase
policy. The court finds from the evidence that Oregon has a relatively low
rate of firearms deaths compared to gun ownership which consists of
38.3% of citizens in Oregon. The defendants want the court to assume
there must be value in the program based upon a preamble and voters'
guide. The court finds the preamble and voters' guide were designed to
persuade the voter to approve the measure. The defendants endeavored
to prove the preamble and voters' guide statements true, and to prove, if
true, those statements justified the burden on firearm possess. The court
finds that the defendants did not meet that burden. As a result, the court
will not give weight to either the preamble or the voters' guide as a result.
ORS 174.020(1)(b) ("A court may limit its consideration of legislative history
to the information that the parties provide to the court. A court shall give the
weight to the legislative history that the court considers to be
appropriate").
Fifth, the reasonable restrictions cannot unduly frustrate the right to bear
arms. The court reiterates its finding that the significant delay imposed by
Ballot Measure 114, the enactment of a "rational basis" policy on a right
that requires the deference of intermediate scrutiny, the inability of the
defendants to institute the policy as written with no FBl background checks
and failing to demonstrate the Ballot Measure 114 permit-to-purchase
policy promotes public safety, all of which unduly frustrate the right to bear
arms.
V. Ballot Measure 114 Large Capacity Magazine Ban is Facially

Unconstitutional
"Our purpose is not to freeze the meaning of the state constitution to the
time of its adoption, but is 'to instead to identify, in light of the meaning
understood by the framers, relevant underlying principles that may inform
our application of the constitutional text to modern circumstance'" Couey v.
Atkins, 357 Or. 460, 490 (2015) quotinq State v. Davis, 350 Or. 440, 446
(2011). ln terms of firearms, the courts are to seek to "'apply faithfully the
principles embodied in the Oregon Constitution to modern circumstances
as those circumstances arise." State v. Hirsch, 338 Or. 622, 631 overruled
on separate qrounds by State v. Christian, ibid.
Magazines, along with the rest of a firearm's components, are protected

arms under Article l, § 27. There is no historical basis for limiting the size
and capacity of firearms, including their magazines.
The court finds that a magazine is a necessary component of a firearm

under Oregon law. ORS 166.210(4) defines "Firearm" to mean "a weapon,
by whatever name known, which is designed to expel a projectile by the
action of powder". The projectile and the powder are contained within the
magazine in the form of ammunition. ORS 166.210(5) defines "Handgun"
to mean "any pistol or revolver using a fixed cartridge containing a
propellant charge, primer and projectile, and designed to be aimed or fired
otherwise than from the shoulder." The definition is a classification of a
firearm and defines a pistol or a "revolver using a fixed cartridge", which
assumes the pistol has a detachable cartridge, or magazine, to function as
a firearm. The firearm, as testified to during trial by Mr. Springer, consists
of the firing mechanism and magazine containing the projectile and
25Permanent Injunction in Arnold and Asmussen, Plaintiffs V. Tina Kotek, et al, Defendants.
powder. The statutes support that functional reality through the codification
of the above definitions. Without a magazine, the remaining components of

a gun are not a firearm. State v. Bovce, 61 Or. App. 662, 665 (1983) ("In a
public place, [a citizen] may possess both a firearm and ammunition, so
long as the ammunition is not in the chamber, cylinder, clip or magazine").
The court in Boyce found that the ammunition is separate from the
magazine, not that the magazine is separate from the firearm.
Defendant's Trial Memorandum, pg. 9.
As stated above, the conservative pioneers who voted for the Oregon
Constitution in 1857 wanted the best shotguns, rifles, handguns, including
revolvers and pepperboxes, and muskets they could afford. There was a
deep desire to have repeating features. Supra. Arms consisted of those
weapons used by settlers for both personal and military defense excepting
cannons and other heavy ordnances not kept by militiamen or private
citizens. Hirsch at 641 citing State v. Kessler, 289 Or. 359, 368 (1980).
The Constitutional delegates and voters of 1857 would be impressed by the
advancement in today's firearms technology, but they would understand
our current stock of firearms as direct descendants of those they
possessed, including multi-shot and repeater technologies.
As the Oregon Supreme Court concluded regarding weapons development

at the founding of the state:
"The only difference is the presence of the springoperated

mechanism that opens the knife. We are unconvinced by the
state's argument that the switchblade is so 'substantially
different from its historical antecedent' (the jackknife) that it
could not have been within the contemplation of the
constitutional drafters. They must have been aware that
technological changes were occurring in weaponry as in tools
generally. The format and efficiency of weaponry was
proceeding apace. This was the period of development of the
Gatling gun, breach loading rifles, metallic cartridges and
repeating rifles. The addition of a spring to open the blade of a
jackknife is hardly a more astonishing innovation than those
just mentioned."
State v. Delqado, 298 Or. 395, 403 (1984).

As described above, the court finds that firearm technology at founding of

the state is the foundation for the current firearm technology 12 Large
capacity magazines predated the automation and mass production of
metals of the industrial revolution, though they were substantially advanced
with the onset of the era. Large capacity magazines existed in the early
18003. The technology was sought as early as the 15008. Breachloaded
rifles were prized. Colt revolvers and pepperboxes were types of firearms
with large magazines used for selfdefense at statehood and would have
been understood to be firearms being developed for militia usage and self
defense. See Christian, 354 Or. at 30 guotinq State v. Kessler, 289 Or. at
368 (1980).13,14
12
"ln State v. Kessler 289 Or. at 369, the court held. 'Firearms and other hand-carried weapons
remained the weapons of personal defense, but the arrival of steam power, mechanization, and chemical
discoveries completely changed the weapons of military warfare The development of powerful explosives
In the midnineteenth century, combined with the development of massproduced metal parts, made
possnble the automatic weapons, explosive, and chemicals of modern warfare P. Cleator, Weapons of
War153177 (1967)." Oregon State Shooting Ass'n v. Multnomah Cntv., 122 Or. App. 540, 54546
(1993). This same evidence was evinced during the trial. Smokeless powder development In the 18805
was the key to well-functioning semiautomatic weapons, but the drive for larger capaCIty magazmes was
well under way at statehood The record In this case shows that the Volcanic was one of, but certainly
not the only, repeating rifles of the 18508 l_d_. at 550 (The parties presented a battle of the experts to
prove that the weapons were or were not of the "sort" used in midnineteenth century). The Oregon
State Shooting Assomatlon case had a very different record of the historical facts than In this case. The
court of appeals relied on the historical record made in that case to make its determination on twentyfive
firearms listed. The record in this case leads the court to very different factual conclusions. For
example, the finding by the court of appeals was that the "first commercially available successful lever
action repeating rifle" appeared In 1862. fl at 549 On this record, Professor Delay testified it appeared
in 1860 M3 Hlebinsky testified to several other models of multishot firearms prestatehood including, but
not limited to, the Lorenzoni and Girandoni rifles, not found in that record. All of the historians testified to
pepperboxes and Colt revolvers had multishot technology in this case The patent for Colt ended in
1857 leading to a proliferation of multishot firearms. The historical record showed the proliferation of
multi-shot firearms at the time of statehood, and that the technology was not new to the voters in 1857
A3 Professor Delay stated there was a significant "allure of multi-shot technology". The notion of "Wide
use" i3 extremely hard for the court weigh that factor, because as the experts in this case testified sales
records were not kept or archived in a way at the time of statehood. The historical and archeological
record does confirm that multishot and repeating technology was available and commonly used in 1859,
not in rifles per 3e, but certainly in handguns The parsing between handguns, shotguns, rifles, and
muskets does not seem to serve any legal purpose on the question of firearm development. The
gunsmiths at the time were actively trying to apply the multishot, repeating technology to all forms of
firearms of that era, and succeeding before the advent of the CiVil War two years after statehood.
13
Kessler found that the term "arms" in Article l, § 27 are weapons used by militia and for self-defense
maintained by the indiVIdual. Kessler at 370. Kessler also announced that "regulation is valid if the aim of
public safety does not frustrate the guarantees of the state constitution." ld
14
The Defendants have not shown that large capacity magazmes are "advanced weapons of modern
warfare", Kessler at 369. The historical record diverges from that conclusion as the technology existed
prior to statehood. While the technology for a specific number of 10round magazines was very limited at
statehood, that also is not the legal analysis The legal analysis is. was the technology for multishot
magazmes in existence and a focus of technology advancement at statehood?
A. Statutory Analysis of Section 11, the Large Capacity Magazine Ban
The court will highlight areas causing the facial unconstitutionality of the
statute. The statutory issues are not based upon overbreadth, but on the
only clear application of the law if allowed to go into effect.
Defendants argue that Ballot Measure 114, Section 11 has language

borrowed from other states pointing to the language from the federal
assault rifle ban of 1994 to 2004, New York, Massachusetts, and Rhode
lsland.15
"When one state borrows a statute from another state, the interpretation of
the borrowed statute by the courts of the earlier enacting state ordinarily is
persuasive." State ex rel. W. Seed Prod. Corp. v. Campbell, 250 Or. 262,
27071 (1968). The defendants argue the court should find that the same
implementation strategies in those states would occur under Ballot
Measure 114. The main gist of the testimony of defense witness James
Yurgealitis was that in each of the states listed, there were magazines
15
Former 18 U S C. § 921(31) (emphasis added): "The term 'large capacity ammunition feeding device'
(A) means a magazine, belt, drum, feed strip, or similar device manufactured after the date of enactment
of the Violent Crime Control and Law Enforcement Act of 1994 that has a capaCIty of, or that can be
readily restored or converted to accept, more than 10 rounds of ammunition; but (B) does not
include an attached tubular device deSIgned to accept, and capable of operating only With, .22 caliber
rimfire ammunition.
N Y Penal Law § 265.00(23) (emphasis added): "'Large capacity ammunition feeding device' means a
magazine, belt, drum, feed strip, or Similar deVIce, that has a capacity of, or that can be readily restored
or converted to accept, more than ten rounds of ammunition, prOVIded, however, that such term does
not include an attached tubular device designed to accept, and capable of operating only With, 22 caliber
"
rimfire ammunition or a feeding device that is a curio or relic..
Mass. Gen. Laws Ann. Ch. 140, § 121 (empha3is added)' "'Large capacity feeding device,' (i) a fixed or
detachable magazine, box, drum, feed strip or similar device capable of accepting, or that can be readily
converted to accept, more than ten rounds of ammunition or more than five shotgun shells; or (ii)
a large capaCIty ammunition feeding device as defined in the federal Public Safety and Recreational
Firearms Use Protection Act, 18 U S C section 921(a)(31) as appearing in such section on September
13, 1994. The term "large capaCIty feeding deVIce" shall not include an attached tubular device designed
"
to accept, and capable of operating only with, .22 caliber ammunition
R.l Gen Laws § 1147.12, (emphasis added): "'Large capacity feeding device' means a magazine, box,
drum, tube, belt, feed strip, or other ammunition feeding deVIce which is capable of holding, or can
readily be extended to hold, more than ten (10) rounds of ammunition to be fed continuously and
directly therefrom into a semiautomatic firearm. The term shall not include an attached tubular device
"
which is capable of holding only 22 caliber rimfire ammunition
purporting to limit the magazines to ten rounds that could be purchased

that did not have fixed plates or that could be easily modifiable with tools to
hold more than ten rounds. Defendants want to the court to draw the
inference that the plaintiff's testimony from Scott Springer demonstrating
that those types of magazines can be modified to carry significantly more
rounds in manner of seconds with a $15.00 drill bit from Home Depot was
not relevant because it took a tool to modify the magazine to defeat the
manufacture limitations."
However, the court finds the language of Ballot Measure 114 Section 11
deviates substantially from the language of the statutes cited in footnote 15.
The pertinent definitions are:
Ballot Measure 114, SECTION 11 (1) As used in this section:
(b) "Detachable magazine" means an ammunition feeding
device that can be loaded or unloaded while detached from a
firearm and readily inserted in a firearm;
(c) "Fixed magazine" means an ammunition feeding device
contained in or permanently attached to a firearm in such a
manner that the device cannot be removed without disassembly
of the firearm action;
(d) "Largecapacity magazine" means a fixed or detachable
magazine, belt, drum, feed strip, helical feeding device, or
similar device, including any such device joined or coupled with
another in any manner, or a kit with such parts, that has an
overall capacity of, or that can be readily restored, changed, or
converted to accept, more than 1O rounds of ammunition and
allows a shooter to keep firing without having to pause to
reload, but does not include any of the following:
(A) An ammunition feeding device that has been permanently
altered so that it is not capable, now or in the future, of
accepting more than 10 rounds of ammunition;
16Mr. Springer in Ex 19 modified a tenround limited magazme to carry 17 rounds In seconds ln Ex. 20,
he demonstrated a qUIck removal of a retaining place and spacer deSIgned to limit capacity on a
magazine, modifying it to hold substantially more rounds. ln EX. 21, he removed a tenround limitation
dimple in a magazine in 35 seconds allowing for a 17-round capacity. All with those alterations were
done $15.00 drill bit
He also testified that the plastic tenround limitation in Glock magazines can be removed by boiling the
magazine in water for 30 seconds, increasing capacity to 17 rounds. His testimony was creditable and
provides the court necessary eVIdence to conclude as it does regarding the ready changeability of most, if
not all, magazmes with purported limitations on magazine capacities
(B) An attached tubular device designed to accept, and capable

of operating only with 0.22 caliber rimfire ammunition; or

(C) A tubular ammunition feeding device that is contained in a
lever-action firearm.
The distinctions are clear. The modifications restrictions of Ballot Measure

114 of the "overall capacity of, or that can be readily restored, changed, or
converted" is not the same as "readily converted to accept", "capable of
holding, or can readily be extended to hold", "readily restored or converted
to accept" nor "readily restored or converted to accept" in the other
statutes. The word "changed" does not exist in any of the other states'
statutory definitions and, pursuant to statutory construction, changed must
have a different meaning than converted. The court finds Mr. Springer
showed demonstrably that the 10round limited magazines on the market
could be readily changed in under a minute's time to hold substantially
more ammunition.
Further the court finds that the term "readily capable" has been defined by
the caselaw in Oregon as applied to the felon in possession of a firearm
under ORS 166.250(1)(c)(C). Gordon v. Rosenblum at 361. The legal
standard is that a pistol which lacks a firing mechanism that could be
replaced in three to four minutes by a gunsmith at a cost of $6 as "readily
capable of use as a weapon". State v. Gortmaker, 60 Or. App. 723 (2008)
cited by State v. Brinev, 345 Or. 505 (2008). This same concept
analytically links with the idea of changing a magazines capacity to be
readily capable of holding ammunition. The prior holdings by Oregon
courts are more persuasive than an adopted language analysis in
determining what the phrase means. The court finds that these two cases
define "readily capable" and that Mr. Springer's testimony demonstrated
that almost all detachable and most fixed magazines are readily capable of
holding more than ten rounds of ammunition, thus banned under Ballot
Measure 114.
Additionally, none of the other statutes contain the language "including any
such device joined or coupled with another in any manner". This language
was demonstrated to be important in Mr. Springer's testimony because
most semi-automatic pistols can be joined together at the magazines to
increase the rounds capable of being fired from ten to twenty. The court
finds the restraint on coupling is a far more restrictive concept than the
other statutes proffered since any detachable baseplate would allow for two
tenround magazines to be put together or coupled. This means since

nearly all magazines have removable baseplates, they are banned under
Ballot Measure 114.
Section contains language that possessors of large capacity magazines

11
are required to permanently alter an ammunition feeding device to be not
capable, now or in the future, of accepting more than ten rounds of
ammunition. Also, firearms dealers must dispose of their stock of large
capacity magazines unless they can "permanently alters any large-capacity
magazine in the gun dealer's inventory or custody so that it is not capable,
upon alteration or in the future, of accepting more than 10 rounds of
ammunition or permanently alter the magazine so it is no longer a (sic)"17
Ballot Measure 114 Section 11(2)(a)(C). This language is not contained in
any offered statutory language from other states. The court finds the
concept of permanently altering large capacity magazines is a
demonstrated impossibility based upon the testimonies of Mr. Springer and
other plaintiffs' witnesses and Mr. Yurgealitis, the defendants' witness.
There is no practical way to permanently alter large capacity magazines.
All alterations can be quickly reversed well within six minutes.
Gortmaker.
The proffered statutes are not red apples to red apples comparisons to
Ballot Measure 114, section 11. Since they are not identical copies, the
court does not interpret them as having the same legislative effect. State v.
Eggers, 326 Or. App. 337, 348349 (2023). The court is directed that
"when the Oregon version of a statute contains different wording from the
uniform act, we presume that the difference is significant. State ex rel Juv.
Dept. v. Ashley, 312 Or. 169, 179 (1991) ('We generally give meaning to
the difference between an Oregon statute and the statute or model code
from which it was borrowed.')". State v. Hubbell, 371 Or. 340, 355 (2023).
17
The defendants want the court to ignore this typographical error or add language to correct. This the
court cannot do "lf the legislature has chosen language that creates unexpected and unintended results,
the legislature can amend the statute to express Its actual intent lt is not the function of a court to insert
language" that should have been added and Ignore language that should have been omitted ORS
174.010 Cole v. Farmers lns Co, 108 Or. App. 277, 280 (1991) cited by Wrlqht v. State Farm Mut
Auto Ins. Co., 223 Or App. 357, 367 (2008)
The court finds most firearms, except those specifically excluded by the
definition in Ballot Measure 114, are banned under by Ballot Measure 114,
because there is no effective way of limiting magazines to ten rounds or
less by permanently alter them and the magazines are readily capable of
alteration or changed to carry more than ten rounds within seconds.
These findings include fixed magazines on shotguns, a clear weapon of

choice during the prestatehood period for selfdefense. The vast majority,
if not all, standard shotguns sold on the market today have bolts that are
removeable and replaceable with tubular magazine extensions. This
capacity cannot be permanently altered because the bolts are necessary to
disassemble the weapon for cleaning. Additionally, the evidence of Mr.
Springer showed the advent of mini shells allows fixed magazines to
contain more than ten rounds when they would have held less than ten
rounds with regular sized shells. The language of Section 11 is an
equivalent ban of shotguns because there is no practical way to
permanently alter the fixed magazine to not accept ten rounds. The
language does not adjust for modifications in ammunition that allows a
firearm to hold more ammunition.
The court finds almost all rifles with fixed magazines can, like shotguns,
have magazine extensions added readily to increase the capacity of the
rifle well over ten rounds, because of the same cleaning necessity and
easy adaptability.
The court finds that all semi-automatic handguns and rifles, the most
popular forms of firearms for self-defense in country today, are banned
under Ballot Measure 114, Section 11. The action, skeleton of the firearm,
needs a magazine to be a gun. See State v. Goltz, 169 Or. App. 619
(2000). Each gun has a fixed magazine under the definition section
because the gun has ammunition feeding device that lifts one bullet into the
chamber at a time. There is no way to permanently alter that function to
not accept magazines containing over ten rounds, and they are readily
capable of accepting magazines of over ten rounds. According to the
testimony, that each of magazines adapted by manufactures currently to
hold only ten rounds are actually 10 + 1 rounds under the definitions of
Ballot Measure 114, meaning they would be banned. This is because the
semi-automatic firearms can take detachable magazines holds ten rounds
and the fixed magazine holds one round. The court finds that if the firearm
has a functionality to allow a detachable magazine to be attached to the

fixed magazine, it is illegal under Ballot Measure 114, Section 11 (1).
The court finds most detachable magazines sold on the market that have
removable baseplates primarily for the ability to clean the magazines
extending their useability. The other state statutes do not prevent those
'
magazines from being sold on the market. Ballot Measure 114 does. Ben
Callaway, Mr. Springer and Mr. Yurgealitis testified that removeable
baseplate magazine on the market are all modifiable to hold more than ten
rounds because of the baseplate allows for extensions to added, other
magazines to be coupled, and can readily be changed to accept more than
ten rounds. There is no functional application that will permanently alter
those magazines which cannot be readily changed as described in footnote
16.
Under Oreqon State Shooting Ass'n v. Multnomah Cntv., 122 Or. App. 540,
54849 (1993), the Court of Appeals rejected the notion of modification to
firearms to make them legal after the fact as a justification for legality:
"While it is argued by the defendants the firearms can be

modified to meet the requirements of...the law does not support
the proposition. The dissent concludes that, because the
'semi-automatic firearms may be illegally modified to become
automatic weapons * * * is not a reason to deprive them of
section 27 protection under the tests adopted by the Supreme
Court.' 122 Or. App. at 556, 858 P.2d at 1325. That is
backwards. The weapons have been modified, ostensibly so
that they will not be classified as military weapons, which, under
the Supreme Court's tests are not entitled to the constitutional
protection. Those 'modifications' cannot be used to bootstrap
these weapons into personal defense weapons so that they
come within the constitutional protection."
The court finds the statutorily distinct language of Ballot Measure 114,
Section 11 regarding "change" and "permanently alter" unduly burdens the
right to bear arms under Article l, § 27. The court concludes the definition
of "large capacity magazine" with the definitions of "fixed" and "detachable"
magazines effectively bans most of firearms currently within the possession
of Oregon citizens and limits the market to only those firearms excepted
f
BIS-Permanent Injunction in Arnold and Asmussen, Plaintiffs v. Tina Kotek, et al, Defendants.
from the ban under Section 11. 18 The court finds that the large capacity
magazine ban effectively bans all firearm magazines fixed or attached

which is unconstitutional under any application of said law. Christian at
35-36.
B. The court finds the large capacity magazine ban does not enhance
public safety to a degree necessary to burden the right to bear arms.
Limitations on the types of weapons usable for SelfDefense are normally

an undue burden on the Oregon citizens. Christian at 40.
The court heard from two sworn officers who were elected Sheriffs in their
counties. Both Harney County Sheriff Dan Jenkins and Union County
Sheriff Cody Bowen testified that for their own protection and that of their
deputies, they issue large capacity magazines. Sheriff Bowen issues Smith
18
The allowed magazrnes are contained in Ballot Measure 114 Section 11(1)(d)
(A) An ammunition feeding device that has been permanently altered so that It is not capable, now or in
the future, of accepting more than 10 rounds of ammunition,
(B) An attached tubular device designed to accept, and capable of operating only with 0.22 caliber rImfrre
ammunition; or
(C) A tubular ammunition feeding device that is contained in a leveraction firearm
As shown above, the language "permanently altered so that it not capable, now or in the future" is not
factually possrble under any circumstance. Subsection (C) deviates from the magazine language of
detached or fixed creating legal uncertainty as to what can be possessed seeming to freeze firearms at
the VWnchester Henry Rifle stage of 1860.
The defendants argued, and presented evidence, suggesting that semi-automatic technology is not
constitutionally protected based upon the smokeless powder, detachable magazines, and automation
after statehood. They argue, In essence, that the state could seize the most popular and effective
weapons of self-defense based upon a historical record coupled wrth the law as they read it as excluding
automation. Section 11(1)(d) supports their assertions by attempting to freeze out automation through
exceptions. Applying the logic of the defendants, any firearm that uses smokeless powder, detachable
magazines or automation within a firearm loading mechanism would not be protected under the
Constitution. The defendants would freeze constitutionally protected firearms at the time of statehood, or
put another way, allowrng only for black powder antiques or replicas thereof.
However, the court finds that firearms development has continued in linear way since 1830 and semi
automation is another phase of repeater technology, smokeless powder the next phase of black powder,
and detachable magazrnes as the next phase of fixed magazines. Each are successor technologies built
on their ancestor technologies "The appropriate Inquiry...is whether a kind of weapon, as modified by its
modern desrgn and function, is of the sort commonly used by individuals for personal defense during
either the revolutionary and post-revolutionary era, or In 1859 when Oregon's constitution was adopted."
State v. Delqado, 298 Or at 40001
and Wesson QMM firearms with a magazine capacity of 17 + 1. Seventeen

rounds in the detachable magazine and one round in the fixed magazine.
Additionally, they are issued two additional 17-round magazines. Sheriff
Jenkins, who provides law enforcement protection for 10,000 square miles
with six sworn officers, where it can take an hour and half to respond to an
emergency, issues Glock model 22, 40-caliber pistols with 15 + 1 and two
additional detachable magazines of 15 rounds. He also issued AR 15,
223' caliber with 25 to 3O capacity magazines with a couple of ten + 1
magazines.
Defendant Cody Codding, superintendent of the Oregon State Police,

testified that the Oregon State Police Troopers are issued Smith and
Wesson 9MM firearms with a magazine capacity of 17 + 1. Additionally,
OSP issues two additional 17 round magazines and duty weapons
consisting of shotguns and Smith and Wesson AR 15 rifles with multiple 20
and 3O round magazines.
Most of the deputies and troopers have their weapons with them when they
are off-duty and have their vehicles and weapons with them at their home
to improve response time to emergencies. Those weapon possessions are
illegal under Ballot Measure 114.
Section 11(4)(c) states there is an exemption from enforcement of the large

capacity magazine restriction for "[a]ny government officer, agent or
employee, member of the Armed Forces of the United States or peace
officer, as that term is defined in ORS 133.005, that is authorized to
acquire, possess or use a large-capacity magazine provided that any
acquisition, possession or use is related directly to activities within the
scope of that person's official duties."
The court finds police officers would not be able to possess their duty
weapons when at home because they would not be acting within the scope
of their official duties. Sheriffs Bowen and Jenkins testified that they
maintain the same magazines they issue to their deputies for their own
personal protection when they are not on duty, because they face threats to
their safety at home. Further, deputies are not always on call and within
the scope of their official duties due to labor laws requiring that they be
released from work obligations at the end of shifts. However, if called out
to an emergent situation, they need to leave from their home to the scene.
Stopping at the Sheriff's office to obtain their weapons creates substantial
delays and threatens to the safety of caller. Both were very clear they are
providing law enforcement protections for vast geographic spaces and such
a delay only compounds the significant response delay the residents
already face in being protected by law enforcement when threatened with
harm.
The court agrees with the National Police Association Amicus Curiae filed
on January 31, 2023, at page 8:
"Because police officers are defending themselves against

the same criminals as citizens, their experience is highly
relevant to the appropriate scope of selfdefense. Over the
years, police departments across the nation have abandoned
service revolvers in favor of modern semiautomatic weapons
with larger magazines. This is true even though police are
often working together as a group, with even less need for
higher capacity magazines than individual citizens attempting
to defend themselves."
The testimony of Defendant Codding, Sheriffs Jenkins and Bowen convince

the court to find Ballot Measure 114, Section 11 has negative public safety
consequences on policing, increasing a safety risk to the public and the
police's own ability to protect themselves from emergent harm.
Citizens use large capacity magazine firearms to defend themselves.
Defense witness, James Yurgealitis, maintains a high caliber handgun with

a nineround magazine for his selfdefense because he does not have
others sleeping in other rooms in the house, so use of a high caliber round
is not a concern if that high caliber bullet pierce walls because there is no
risk of killing an innocent on the other side of that wall and he has decades
of training that allow him to use those weapons effectively. Nine rounds for
a highly trained former law enforcement officer, with a heavy and
dangerous caliber of round, only enhances the argument that less trained
citizens need more rounds to make up for the deficits in stopping power of
an aggressor from a lower caliber round firearm.
Both plaintiffs, Joseph Arnold, 52, and Cliff Asmussen, 76, own large
capacity magazines for their own selfdefense. Mr. Arnold is an Oregon
state employee managing the Harney County state highway department.
Mr. Asmussen is a retired logger and car dealer. They are each concealed
handgun licensees with appropriate training as required by ORS 166.291,

they own many firearms, have had guns in their lives since their early
childhood, been trained at a young age to properly handle and safely use
firearms, and have purchased hundreds of firearms apiece. Each enjoy the
use and possession of large capacity magazines for personal protection.
The notion of being charged with a crime of possessing a large capacity
magazine offends Mr. Asmussen since he does not think he has done
something wrong that separates him from other "normal citizens". Mr.
Arnold takes his large capacity magazine firearms with him when he is in
public for personal protection. Neither have fired the firearms in self-
defense, but they feel protected and are prepared to protect themselves
and their community if necessary.
Sheriff Bowen described an incident when citizens brought their weapons

to back up deputies in a high intensity situation with a criminal. Their
backup was essential to the safety of the community. As he put it: "l
depend on an armed citizenry".
These witnesses each demonstrate the idea that self-defense is first about
having the ability to defend oneself and being able to burnish a weapon
when necessary. The defendants' evidence from Mr. Jorge Baez, the
statistician, who reviewed a very limited sample size within the National
Rifle Association ("NRA") data base, supported this conclusion when he
testified that most acts of self-defense with a firearm involve no shooting at
all. The display of force terminates the aggressor's behavior. Mr. Baez
also concluded that the average number of 2.2 rounds are fired in acts of
self-defense and acts where over ten rounds fired in selfdefense occurred
in the database for .3% of all incidents. He testified there is no way to
gauge how many shootings were prevented by the show of force that
included events with large capacity magazine firearms.
The number of .3% of all acts of self-defense using ten rounds or more is
significant statistically when weighed against the statistical significance of
the actual impact of mass shootings in the United States.
Interms of overall types of events occurring in society causing death and

causalities, mass shootings rank very low in frequency. However, as Mr.
Joe Paterno's testimony highlighted, these terrible mass shooting events
create extremely emotional, sensationalized moments in our society that
are highly sensationalized. As Mr. Paterno pointed out, after the Uvalde
School Shooting horror, the number of people who signed up to help with
Ballot Measure 114 campaign spiked. The mass shooting events have a
significant impact on the psyche of America when they happen. People
tend to believe these events are prolific and happening all the time with
massive levels of death and injury. The court finds this belief, though
sensationalized by the media, is not validated by the evidence.
The advocates for Ballot Measure 114 argue the preamble and in the
in
voters' guide that a restraint on the amount of ammunition as the key to
preventing mass shootings. Nothing in the preamble, the voters' guide nor
the defendants' evidence provide a rationale for why the rounds should be
limited to ten as opposed to any other arbitrary number that could have
been picked nor did they show the limitation often rounds has any
demonstrable effect on negative outcomes to mass shooting events.
The proponents claim the delay in reloading can help with individuals
getting away from the shooter. Ignoring that the larger the magazine, the
higher chance of it jamming according to the testimony, the court finds the
time to reload a tenround magazine into a semi-automatic firearm is
negligible at best.
Derik LaBlanc, the first witness for the plaintiffs and a firearms instructor,
stated he could reload his firearm in 2.10 seconds and an elderly individual
with proper training can reload in four to five seconds. Shane Otley, a
Harney County Rancher, relies more heavily on large capacity magazines
as he gets older and his reaction time and proficiency declines for
reloading.
Mr. Springer, a competitive shooter, can reload in .7 of a second.
Sheriff Bowen and Sheriff Jenkins can reload in two seconds.

Mr. Yurgealitis can reload in one to two seconds. He testified that an
untrained individual could reload in five to six seconds.
Exhibits 174 through 184 where different examples of 10-round magazines

purchased by Mr. Yurgealitis. The court could easily carry every one of
those exhibits, at the same time, in a single jacket pocket for easy retrieval.
Many more of those magazines could be carried in other pockets and
storage items attached to a normally sized adult.
38Permanent injunction in Arnoid and Asmussen, Plaintiffs V. Tina Kotek, et al, Defendants.
Mr. Baez testified that there was an increase in casualties when large
capacity magazines were used. The increase was ten deaths versus six
deaths without large capacity magazine use and 16 injuries versus three.
However, out of the 179 incidents he reviewed, he could not describe how
many shooters used large capacity magazines or not, leading him to make
approximate guesses as to how often they were used. Fundamentally,
there is no clarity in the literature about how often large capacity magazines
were used because it was not a point of data entry until a policy maker
decided it should be point of data since 2004. The court cannot find that
the restriction on large capacity magazines would affect these outcomes in
with any scientific certainty as differentiated from an individual forced by
statute to carry more magazines for reloading.
The court finds that 10round magazine bans are no panacea to prevent a
mass shooter based upon the evidence in this case. A motivated mass
shooter could carry well over 100 rounds in 1O separate magazines and
readily release a detachable magazine from a firearm and reload in two
seconds offering none of the supposed protection promoted in the
preamble or voter's guide for Ballot Measure 114 by banning large capacity
magazines. The court can find no scientific or analytical reasoning on this
record that a tenround limitation will increase public safety in any
meaningful way.
C. The Large Capacity Magazine ban is unduly burdensome
The court finds no proof offered demonstrated Large Capacity Magazine

bans would reduce the number of causalities in the future. Any such
conclusion would be mere speculation by the court which it will not engage
in. ~
The defendants attempted to assert that the Section 11 ban would have a
significant impact on mass shootings, but they failed to lay a proper
scientific foundation. As the Oregon Supreme Court requires:
"The function of the court is to ensure that the persuasive

appeal [of scientific evidence] is legitimate. The value of
proffered expert scientific testimony critically depends on the
scientific validity of the general propositions utilized by the
expert...[S]cientific assertions...should be supported by the

appropriate scientific validation. This approach 'ensure[s] that

expert testimony does not enjoy the persuasive appeal of
science without subjecting its propositions to the verification
processes of science."
Jenninqs v. Baxter Healthcare Corporation, 331 Or. 285, 304-305 (2000)

quotinq State v. O'Kev, 321 Or. 285 (1995).
The defendants introduced Dr. Michael Seigel, an epidemiologist from Tufts

University, to testify to his policy conclusions. His testimony was based
upon four academic studies of 179 events he considered mass shootings
without any consideration of the many variables that could impact those
conclusions. Defendants failed to lay a scientific process for the court to be
able to follow the analysis that led to the doctor's conclusions. As a result,
the testimony was not allowed. For example, there was not even an
agreed upon definition in those four studies for a definition of a mass
shooting. lf the science cannot agree on a definition, how can a court
derive any conclusions from the data. The data conclusions were also
derived against the backdrop of eight types of gun laws." There was no
attempt to extract a single policy option from the eight to identify its effect
on mass shootings. The remaining concerns of the court were laid out on
the record.
Essentially, the defendants wanted to come to court, say this person is an

expert, and have the expert assert their legal conclusions as scientific
evidence without the proper showing to the court of the scientific validation
for the process or the way the process was used to come to that
conclusion. The defendants failed to establish a factual, scientifically
reliable record to allow Dr. Seigel's conclusions under OEC 702. State fl
v. Romero, 191 Or. App. 164 (2003) review denied 337 Or. 248 (2004)
(litigant's claim of that a scientific theory is valid is a hypothesis that
requires empirical proof).
19
Large Capacrty Magazrne bans, the articles considered assault weapons bans, permit-to-
ln addition to
purchase laws, Mental health and domestic violence protections, universal background checks, may
issue permits, and other vrolent misdemeanor laws. The conclusions in the studies only had validity
when compared against these statutes' sans all these statutes. Oregon has mental health and domestic
violence protections, universal background checks, and other vrolent misdemeanor laws and the
defendants could not provide the court a delineation of how to evaluate the evidence without those laws
being consrdered generally. In other words, the conclusions offered where not discretely on large
capacity magazine bans but on an array of firearm restraints
Additionally, the court did not find Dr. Seigel's testimony credible. The
doctor, in his initial testimony, was using statistics to further the agenda of
the defendants, hyper-charging the impact of firearms in Oregon. For
example, comparing 2001 to 2021, firearm related homicide deaths were
47 in 2001 as comparted to 146 in 2021. Dr. Seigel describes that as a
310% increase in mortality. The use of a comparison between 99 more
deaths and 310% increase appears the court to be policy advocacy, not
scientifically useful conclusions. While technically true, the statistical trick
turning 99 into 310% was designed to enflame rather than educate. The
court finds that Dr. Seigel is an advocate for gun control measures, who
used data in a partisan manner to drive home his personal point of view
rather than provide this court with a scientific way to evaluate policy
decisions for their effectiveness in solving gun-related deaths. Such an
analysis would have allowed the court to evaluate the policy's effectiveness
on public safety against its burden on the right to bear arms, but none was
offered.
Dr. Seigel's testimony offered one area of concurrence between the

parties. There have been 155 mass shooting events from 1976 to 2018
under the definition of mass shooting which consists of over four deaths in
the incident and the incident was not attributable to another crime or
domestic violence. The total physical harm from those mass shootings
was 1078 deaths and 1694 nonfatal casualties or 25.6 deaths and 40.3
injuries on average per year from mass shootings since 1976. Only two of
those mass shooting events occurred in Oregon.
The court finds the total fatal and non-fatal casualties from those 155 mass
shootings over the last 42 years is 2,772 people. The historic number of
causalities from mass shooting events is staggeringly low in comparison
the media's sensationalized coverage of the events.
By comparison, Harney County has a current population of 7,495 people

and Oregon's population is 4,240,137 as of 2022.
Mass shooting events are tragic and often involved the most vulnerable
sections of the population. However, the court finds that number of people
killed and injured is statically insignificant compared to the number of lawful
gun owners. As noted, Oregon has 38.3% of citizens who own firearms
and of those, 49.8% are estimated to own magazines that hold 11 plus
rounds meaning Oregon has 1.6 million lawful gun owners, 808,000 of
whom have large capacity magazines in their possession. The court finds
the large capacity magazine ban directed at 155 to 179 criminals who used
firearms that committed heinous crimes, sometimes with large capacity
magazines, in the last 42 years, causing 808,000 lawful citizens in the state
to become into presumed criminals with an affirmative defense, not
reasonable and unduly burdensome under Article l, § 27 pursuant to
Christian.
An affirmative defense places the burden on the accused to prove their

right to possess the large capacity magazine by a preponderance of the
evidence. See Oregon State Bar Books, Criminal Law in Oreqon, section
19.1-2. Proof may consist of testimony subject to creditability
determination by the fact finder. However, generally, proof is better
bolstered by documentation. Mr. Springer noted in his testimony that none
of the current large capacity magazine manufacturers place numbers on
the magazine that can then be associated with a registry meaning the
magazines are not serialized. The court finds that presumptively, that fact
alone will require a defendant, currently a lawful citizen, to give up their
right against selfincrimination and testify that they had a large capacity
magazine in their possession, but they owned it before Ballot Measure 114
went into effect. lf they are not believed by a jury, they could go to jail for
up to 364 days and be fined $6,250.00.
ln other words, the possession of a large capacity is presumed illegal until

the accused owner of the large capacity magazine proves otherwise in a
court of law after the state had established a prima facia case of guilty and
survives a motion for judgment of acquittal?"
2°The court expressed significant concerns with the racial and socroeconomic realities of this portion of
the law including the indigent defense crisis and availability of lawyers along with the personal costs of
being arrested and tried.
There are significant constitutional problems unexplored with the issues that were not properly plead.
There Is real legal concern about the police being the initiators of prosecutions, a power generally left to a
decision based upon
duly elected district attorney Also, the police are allowed to make that prosecutonal
unchecked discretion during roadside related to Section 11(5)(d) where an indivrdual can avoid
to law
prosecution if they "permanently and voluntarily relinquished the large-capacity magazine
enforcement or to a buyback or turnin program approved by law enforcement, prior to commencement of
or a formal The decide who and for how long the person
prosecution by arrest, citation charge". police
can have to handover the magazine before they Initiate the prosecution by arrest or citation.
For those, and the other reasons outlined, the Large Capacity Magazine
ban is unduly burdensome on gun rights when compared to the actual

harm caused by those items.
D. The Large Capacity Magazine ban is not authorized under Christian.
The court is mindful the impact of mass shootings. The court finds that
comparing that impact to the potential loss of liberty to currently lawful gun
owners, this ban is unduly burdensome under Article l, § 27. The limited
number of mass shootings in the country weighed against the massive
criminalization of lawful firearm possession in Oregon does not allow for the
burden caused the imposition of the large capacity magazine ban
contained in Ballot Measure 114, Section 11.
The statutorily distinct language of Ballot Measure 114, Section 11

regarding "change" and "permanently alter" clearly unduly burdens the right
to bear arms under Article l, § 27.
The conclusion the court made after the temporary injunction remains just
as true after a full evidentiary hearing. The court cannot sustain a restraint
on a constitutional right based upon a mere speculation the restriction
could promote public safety. Certainly, a court cannot use a mere
speculation in determining guilt in a criminal case, damages in a negligence
case, future harm in a parole matter, or the many other legal matters where
disallowing that outcome. See State v. Hedqpeth, 365 Or. 724, 733 (2019);
Smith v. Providence Health & Servs Oreqon, 361 Or. 456, 475-76 (2017);

Smith v. Bd. of Parole & Post-Prison Supervision, 343 Or. 410, 419 (2007);
Lea v. Gino's Pizza lnn, lnc., 271 Or. 682, 688 (1975) ("Prosser on Torts
(2nd ed), s 42, p. 200 expresses what is required is evidence from which
reasonable men may conclude that, upon the whole, it is more likely that
there was negligence than that there was not. Where the conclusion is a
matter of mere speculation or conjecture, or where the probabilities are at
best evenly balanced between negligence and its absence, it becomes the
duty of the court to direct the jury that the burden of proof has not been
sustained"). Any finding by the court that Ballot Measure 114, Section 11
permit-topurchase program increases public safety would be merely
speculative and were unsupported by the facts at trial.
The court finds the defendants did not present evidence demonstrating a
positive public safety result for the large capacity ban beyond a speculative,
de minimis impact on mass shooting fatalities which occur very rarely. The
court further finds that the conduct of owning a large capacity magazine
does not create an unreasonable and unjustified risk or harm to members
of the public. Christian at 35.
Nearly all the people who own large capacity magazines are reasonable
gunowners who are not identifiable risks to their community nor cast an
unjustifiable risk or threat of harm to other citizens. Lei.
Ballot Measure 114, Section 11 is facially unconstitutional by a finding of

clear and convincing evidence as demonstrated above. The court's legal
and factual conclusion is that Ballot Measure 114 does not increase public
safety but diminishes it while creating nearly a million presumed
misdemeanants. A result that is not reasonable under Article l, § 27 as
defined by Oregon Supreme Court pursuant Christian.
Vl. CONCLUSION
Declaratoryjudgment is preventive justice, designed to relieve parties of

uncertainty by adjudicating their rights and duties before wrongs have
actually been committed. Hale v. State, 259 Or. App. 379, review
denied 354 Or. 840 (2013). This court is preventing the undue burden of
Ballot Measure 114 from being imposed on current, and prospective, gun
owners who have a right to lawfully possess firearms for the purposes of
defending themselves and the state against imminent threats of harm.
Pursuant to ORS 28.010, et. al., the court, using its equitable power,
DECLARES and ADJUDGES Ballot Measure 114 facially unconstitutional
in all of its applications under Oregon Constitution, Article l, § 27. The
court makes this declaration to settle and to afford relief from uncertainty
and insecurity with respect to the right to bear arms in Oregon. ORS
28.120. Ballot Measure 114 is permanently enjoined from implementation.
The court orders costs upon a filing under ORCP 69 that are just and
equitable for the plaintiffs. ORS 28.100.
Plaintiffs shall prepare the judgment in conformance with this letter, the
statutes and the caselaw and submit the judgment to the defendants no
later than December 1, 2023. Defendants shall review thejudgment as to
form and file any objections by December 8, 2023, at noon.
Without any objection as to form, the court will enter the judgment on
December 8, 2023.
So Declared and Adjudged,
<71;
Robert S. Raschio
24th Judicial District (Grant/Harney)
Presiding Circuit Court Judge

Measure 114 Ruling

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oF

November 21, 2023

Tyler Smith & Associates, P.C. Oregon Department of Justice

The Harney County Circuit Court is issuing a Permanent Injunction under

impaired if Ballot Measure 114 is allowed to be implemented. Dovle v. City

of Medford, 356 Or. 336 (2014). Based upon a facial constitutional

The Oregon Constitution "has content independent of that of the federal

According to Hon. Jack L. Landau, retired Oregon Supreme Court Justice,

"ln some cases, the court adopted a historical or originalist

JACK LANDAU, An Introduction to Oreqon Constitutional Interpretation, 55

weapons to promote public safety as long as the exercise of that authority

ll. Historical Context for Oregon's Right to Bear Arms

At the time of adoption of the Oregon Constitution in 1857, the Oregon

Professor Mark Axel Tveskov of Southern Oregon University testified that

Professor Delay described the technological improvements over the

As described by Professor DeLay, multi-shot firearms had made significant

advancement multi-shot rifle technology leading to the Henry rifle of 1860

Firearms development happened quickly from 1830 until 1857. Shotguns

Ashley Hlebinsky, who was a museum curator integral in the development

militia activities. As early as 1803, Meriwether Lewis bought his large

Along with firearm development, government developed in Oregon. There

passing the initiative 7,617 for to 1,679 against, a "sweeping victory...more

remarkable in view of the previous repeated rejections". ld_. at 21-22.

The convention opened at the courthouse in Salem, Oregon on August 17,

The voters of Oregon, special election on November 9, 1857, adopted

The best evidence for a constitutional provision's intended meaning is to

When so engaged, the object is to give effect to the intent of the

"If [the defendant] believing he was in actual and imminent

one acting from appearances in such a case, and believing the

Goodall v. State, 1 Or. 333, 336-337 (1861).

Parenthetically, in Goodall, the defendant shot twice from a pistol with

lll. Ballot Measure 114 Severability Clause

As stated on the record, the court finds Sections through 1O are

severable from Section 11 of Ballot Measure 114. Sections 1 through 10

For example, Section 4 outlines the permit-to-purchase process, section 5,

and considering the phrase 'permit holder' surplusage. lt is not

lV. Ballot Measure 114 Permit-to-Purchase Scheme is Facially

Oregon citizens have a right to selfdefense against an imminent threat of

A. The right under Article l, § 27 is the ability to respond to the imminent

"As a general proposition, individuals in Oregon have a right to possess

axiomatic that we should construe and interpret statutes 'in such a

The Oregon Supreme Court, in Sandoval, held:

ORS 161.219 Limitations on use of deadly physical force in defense of a

(2) Committing or attempting to commit a burglary in a dwelling; or

ORS 161.225 Use of physical force in defense of premises.

(a) ln defense ofa person as prOVIded In ORS 161.219, or

"[T]he statute...sets out a specific set of circumstances that

justify a person's use of deadly force (that the person reasonably

ln fact, the scales, at least in rural communities, regarding Ballot Measure

Sutherland, 329 Or. 359, 365 (1999).

B. Ballot Measure 114 mimics the concealed handgun license scheme

Possessing a concealed weapon is a privilege in Oregon. Without a

State v. Perry, 336 Or. 49, 58 (2003).

terms * * * their established legal meanings')." Gordon v. Rosenblum, 361

The courts conducting a legal review of decisions to deny a concealed

For example, ORS 166.291 outlines an extensive list of requirements to

Notwithstanding ORS 166.291 (1), and subject to review as

concealed handgun license if the sheriff has reasonable

grounds to believe that the applicant has been or is reasonably

Compare that language to Ballot Measure 114 Section 4(1)(b)(C) where a

"It is notclear that the proceeding under ORS 166.293

The court finds a due process administrative review hearing undermines

See Stanley at 331.

intermediate Scrutiny is a recognition that the right to bear arms is a

Oregon citizens have a right to selfdefense against an imminent threat of

lt is worth noting that getting a permittopurchase does not create "any

"The only difference is the presence of the springoperated

tenround magazines to be put together or coupled. This means since

Limitations on the types of weapons usable for SelfDefense are normally

(C) A tubular ammunition feeding device that is contained in a leveraction firearm