OREGON FIREARMS FEDERATION, INC., an Oregon public benefit corporation; BRAD LOHREY, Sherman County Sheriff; CODY BOWEN, Union County Sheriff; BRIAN WOLFE, Malheur County Sheriff; HAROLD RICHARD HADEN, JR., an individual; and ADAM JOHNSON, an individual v. KATHERINE “KATE” BROWN, in her official capacity as Governor of the State of Oregon; and ELLEN ROSENBLUM, in her official capacity as Attorney General of the State of Oregon
Case No. 2:22-cv-01815-IM
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
IMMERGUT, District Judge.
OPINION AND ORDER
Brian Simmonds Marshall, Oregon Department of Justice, 100 SW Market Street, Portland, OR 97201. Harry B. Wilson, Markowitz Herbold PC, 1455 SW Broadway, Suite 1900, Portland, OR 97201. Attorneys for Defendant.
IMMERGUT, District Judge.
Before this Court is Plaintiffs’ Emergency Motion for a Temporary Restraining Order (“TRO“) and Preliminary Injunction, ECF 5, pursuant to
A TRO—like a preliminary injunction—is “an extraordinary and drastic remedy that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (internal citation omitted). As the party seeking a TRO and preliminary injunction, it is Plaintiffs’ burden to show that this extraordinary remedy is warranted at this time. See DISH Network Corp. v. F.C.C., 653 F.3d 771, 776 (9th Cir. 2011).
Measure 114, which was passed by a majority of Oregon voters, changes existing Oregon law in two ways: by requiring prospective gun owners to obtain a permit before purchasing a firearm, and by prohibiting the purchase and use of magazines that can accept more than ten rounds of ammunition, subject to various exceptions. The purpose of these changes, as stated in the measure‘s preamble and as argued by Dеfendants, is to prevent “horrific deaths and devastating injuries due to mass shootings, homicides[,] and suicides.” ECF 15 at 1. But Plaintiffs argue that these measures do little to protect public safety and instead violate their Second, Fifth, and Fourteenth Amendment rights. ECF 5 at 2, 24.
Plaintiffs bring their challenge to Measure 114 in the wake of the United States Supreme Court‘s recent clarification of the Second Amendment‘s protections and limits. In New York State Rifle & Pistol Ass‘n., Inc. v. Bruen, decided five months before the passage of Measure 114, the Supreme Court held that when conduct is covered by the plain text of the Second Amendment, any government action must be “consistent with the Nation‘s historical tradition of firearm regulation.” 142 S. Ct. 2111, 2126 (2022). But Bruen also made clear that “the right secured by the Second Amendment is not unlimited,” and that governments may still impose certain restrictions on the purchase, possession, and use of firearms. Id. at 2128; see also id. at 2162 (Kavanaugh, J., concurring) (“[T]he Second Amendment allows a ‘variety’ of gun regulations,” including the “presumptively lawful regulatory measures” such as laws prohibiting the keeping and carrying of “dangerous and unusual weapons.“).
Plaintiffs filed their TRO on November 23, 2022 and asked this Court to block all of Measure 114, including the large-capacity magazine restrictions and the permit requirements, from taking effect. ECF 5 at 2. On December 4, 2022, Defendants submitted a letter to this Court stating that “challenges require postponing implementation” of Measure 114‘s permit-to-purchase provision. ECF 34 at 1. Defendants have asked this Court to postpone
Against this backdrop, and based on the record before this Court at this early stage in the litigation, this Court finds that Plaintiffs have failed to meet their burden showing that they are entitled to the extraordinary relief thеy seek. Plaintiffs have failed to demonstrate that they will suffer immediate and irreparable harm if this Court does not block Measure 114 from taking effect on December 8, 2022. Plaintiffs have not produced sufficient evidence at this stage to demonstrate a likelihood of success on the merits of their challenge to Measure 114‘s restrictions on large-capacity magazines. Plaintiffs have also failed to demonstrate a likelihood of success on their facial challenge to Measure 114‘s permitting provisions. With respect to any as-applied challenge, Defendants have stated that they are not ready to implement the permitting requirements and have asked this Court to “enter an order providing a limited window in which Oregonians will be able to purchase firearms even though they do not have a permit, while also allowing Oregonians to apply for and be issued permits.” Id.
Accordingly, Plaintiffs’ Motion for a TRO, ECF 5, is DENIED with respect to Measure 114‘s restrictions on large-capacity magazines. Plaintiffs’ Motion is DENIED with respect to a facial challenge to Measure 114‘s permitting provision. However, in light of the difficulty the State has conceded in terms of implementation of the permitting provisions at this stage, implementation of those permitting provisions is stayed for thirty days. Parties are ordered to confer and report to the Court regarding any further postponement requests.
BACKGROUND
A. Factual History
Measure 114 was approved by a majority of Oregon voters in November of 2022.1 Measure 114, OREGON SECRETARY OF STATE, https://results.oregonvotes.gov/resultsSW.aspx?type=MEASURE&map=CTY (last visited Dec. 3, 2022). Excluding certain exceptions for law enforcement and military use, Measure 114 prohibits the sale and restricts the use of large-capacity magazines holding more than ten rounds of ammunition. Measure 114 § 11. Measure 114 also requires individuals to obtain a permit before purchasing firearms. Id. at § 4. Measure 114 is scheduled to take effect on December 8, 2022. See
1. Pre-Measure 114 Landscape
Prior to Measure 114, any individual who wanted to purchase a firearm in Oregon was required to complete a background check at the time of purchase, including a criminal history check to determine whether the individual was disqualified from purchasing a gun under Oregon law.
a. Ballot Measure 114
Following the enactment of Measure 114, Oregon law will now require individuals to obtain a permit to purchase firearms, which in turn will require individual purchasers to both submit to a background check and complete a firearm safety course before they can buy a firearm. Measure 114 § 4. Additionally, unless one of Measure 114‘s exceptions apply, it will be a misdemeanor crime to use, manufacture, sell, and purchase large-capacity magazines, which are defined as magazines capable of accepting more than ten rounds of ammunition. Id. § 11. Details about each of the two components of Measure 114 are described below.
i. Permit-to-Purchase
Under Measure 114, any individual seeking to purchase a firearm in Oregon must first apply for a permit. Id. § 4(1)(a). An applicant receives a permit if they: (1) are not prohibited from purchasing or acquiring a firearm under state or federal law; (2) are not subject to certain protective orders which prohibit individuals in Oregon from possessing guns; (3) are not reasonably likely to be a danger to themselves, others, or the community at large;2 (4) provide proof that they have completed a firearm safety course;3 and (5) pay a fee.4 Id. §§ 4(1)(b)(A)–(E).
The applicant must submit to fingerprinting and photographing by a permitting agent. Id. § 4(1)(c).5 The applicant must also submit to a criminal background check conducted by the Oregon State Police (“OSP“) through the Federal Bureau of Investigations (“FBI“). Id. Within thirty days of receiving an application for a permit, if the applicant meets the criteria, the permit agent “shall issue the permit-to-purchase.” Id. § 4(3)(a). A permit is valid for five years. Id. § 4(7)(a).6
Measure 114 requires licensed dеalers to verify that any potential firearm purchaser has a valid permit and forbids a dealer from transferring the firearm to the purchaser unless the dealer receives a unique approval number from OSP. Id. § 6(3)(c). Measure 114 likewise requires individuals seeking to transfer firearms to confirm that the individual to whom the firearm is being transferred has a valid permit. Id. § 7(3)(a). And Measure 114 requires anyone seeking to sell or transfer a firearm at a gun show to confirm that the individual to whom the firearm is being sold or transferred has a valid permit. Id. §§ 8(3)(c), 9(1)(a)(A).
Measure 114 makes it a misdemeanor to sell or transfer firearms to an individual who does not have a permit. Id. §§ 6(14), 7(5)(a), 9(5)(a). Measure 114 does not criminalize possession of a firearm without a permit. Official Voters’ Pamphlet, General Election, Nov. 8, 2022, 90.
ii. Large-Capacity Magazines
Measure 114 also makes it a misdemeanor crime to manufacture, import, possess, use, purchase, sell, or otherwise transfer any large-capacity magazine in Oregon after December 8, 2022. Measure 114 § 11(2). Measure 114 defines large-capacity magazines as “a fixed or detachable magazine . . . or similar device . . . that has an overall capacity of, or that can be readily restored, changed, or converted to accept, more than 10 rounds of ammunition and allows a shooter to keep firing without having to pause to reload . . . .” Measure 114 § 11(d).
(a) Exceptions to Measure 114‘s Large-Capacity Magazine Restrictions
Measure 114 contains various exceptions to the general prohibition on the manufacture, purchase, sale, or possession of large-capacity magazines. Licensed gun dealers that have lаrge-capacity magazines in their inventory have several options for complying with Measure 114‘s new restrictions within the 180 days after Measure 114 takes effect. During that time, a licensed gun dealer may transfer or sell large-capacity magazines within their inventory to a non-resident gun dealer or other transferee located out of state. Id. § 11(3)(a)(A). The licensed dealer may also purchase large-capacity magazines from any owner for permanent removal from Oregon. Id. § 11(3)(a)(B). And, a licensed dealer may permanently alter any large-capacity magazine in their inventory such that it is no longer capable of accepting more than ten rounds of ammunition. Id. § 11(3)(a)(C).
Measure 114 also contains exceptions for certain firearms manufacturers that produced large-capacity magazines before the regulations went into effect. If a firearm manufacturer is properly licensed under federal, state, and local law and is party to a binding contract pre-dating the effective date of the measure with an entity outside of the state of Oregon for the manufacture of large-capacity magazines, then it may fulfill that contract so long as all manufacture is completed no later than 180 days after the effective date of the measure and the manufacturer makes the entity aware
Current owners and future inheritors of large-capacity magazines can still possess and use large-capacity magazines obtained prior to Measure 114‘s effective date, subject to certain limitations.8 Current owners and inheritors of large-capacity magazines may only use those firearms at their home (or on property under their control), on the premises of a gun dealer, at shooting ranges, for recreational activities like hunting, at firearms competitions or exhibitions, for certain educational purposes, or during transport to or from one of these permissible locations. Id. § 11(5)(c)(A)–(E). Measure 114 does not apply at all to any member of the United States Armed Forces or law enforcement who acquire, possess, or use large-capacity magazines, so long as that acquisition, possession, or use “is related directly to activities within the scope of that person‘s official duties.” Id. § 11(4)(c).
B. Procedural History
Plaintiff Adam Johnson is a resident of Marion County who owns large-capacity magazines covered by Measure 114. ECF 13 at ¶ 32. Plaintiff Harold Richard Haden Jr. is a resident of Umatilla County who owns Garner‘s Sporting-Goods, a gun store, which sells large-capacity magazines covered by Measure 114. Id. at ¶ 33. Plaintiff Haden Jr. also personally owns large-capacity magazines covered by Measure 114. Id. Plaintiff Brad Lohrey is the Sheriff of Sherman County and owns large-capacity magazines covered by Measure 114. Id. at ¶ 34. Plaintiff Cody Bowen is the Sheriff of Union County and owns large-capacity magazines covered by Mеasure 114. Id. at ¶ 35. Plaintiff Brian Wolfe is the Sheriff of Malheur County and owns large-capacity magazines covered by Measure 114. Id. at ¶ 36. Plaintiff Oregon Firearms Federation (“OFF“) is a public benefit corporation whose members include law enforcement officers, prosecutors, professionals, firearm experts, and the public. Id. ¶ 37–38. Plaintiff OFF joins this lawsuit to represent its members’ interests, including “their wish to exercise their constitutionally protected right to keep and bear arms without being subjected to criminal prosecution, and to continue to lawfully possess property that they lawfully obtained.” Id. at ¶ 39. Together, Plaintiffs contend that the entirety of
Plaintiffs filed their initial Complaint challenging the constitutionality of Measure 114 on November 18, 2022. ECF 1. Plaintiffs filed their Emergency Motion for a Preliminary Injunction on November 23, 2022 and asked this Court to prevent Measure 114 from taking effect on December 8, 2022. ECF 5. Plaintiffs filed a First Amended Complaint on November 28, 2022, adding Plaintiffs Haden Jr., Bowen, and Wolfe. ECF 13.
Plaintiffs’ Motion for a TRO is aimed primarily at Measure 114‘s restrictions on large-capacity magazines. Although Plaintiffs make the sweeping contention that all of Measure 114 is unconstitutional, their Motion for a TRO and Preliminary Injunction does not present any argument or evidence as to why Measure 114‘s permit requirements infringe upon their constitutional rights.
On December 2, 2022, this Court held a hearing on Plaintiffs’ TRO, as well as a related TRO challenging the constitutionality of Measure 114‘s large-capacity magazine restrictions in the case of Fitz et al. v. Rosenblum et al., 3:22-cv-01859-IM. ECF 33. This Opinion and Order addresses only the TRO in the above-captioned case. This Court will issue a separate Order addressing the TRO in the related case.
DISCUSSION
Plaintiffs allege that Measure 114‘s regulations on large-capacity magazines violate the Second Amendment because they prohibit magazines that are in common use for lawful purposes such as self-defense. ECF 5 at 22. Plaintiffs additionally contend that Measure 114‘s regulations on large-capacity magazines violate their Fifth and Fourteenth Amendment rights because the regulations deprive owners of large-capacity magazines of their property by banning, with certain exceptions, the possession, use, or sale of those magazines within the state of Oregon. Id. at 26–31. Plaintiffs also allege that Measure 114‘s permit-to-purchase provision violates the Second, Fifth, and Fourteenth Amendments. Id. at 1. Plaintiffs argue that, absent a TRO blocking Measure 114 from taking effect, they will suffer irreparable harm because their constitutional rights will be violated and they will be forced to relinquish their previously-owned large-capacity magazines. Id. at 32.
Defendants counter that Measure 114‘s restrictions on large-capacity magazines are constitutional because large-capacity magazines are not firearms protected by the Second Amendment and because the regulation is consistent with the historical tradition of firearm regulations. ECF 15 at 1. Defendants also argue that Measure 114‘s permit-to-purchase provision is a “shall-issue” licensing scheme that is presumptively constitutional under existing United States Supreme Court jurisprudence. Id. Defendants additionally contend that Measure 114 violates neither the Fifth Amendment nor the Fourteenth Amendment, as it does not deprive Plaintiffs of their ability to maintain and use their property. Id. at 1–2. Finally, Defendants argue that Plaintiffs have failed to show that they would be irreparably harmed if Measure 114 were to take effect on December 8, 2022. Id. at 2.
C. Plaintiffs’ Motion for a Temporary Restraining Order
In deciding whether to grant a motion for a TRO, courts look to substantially the same factors that apply to a
1. Likelihood of Success on the Merits
This Court first considers Plaintiffs’ likelihood of success on the merits of their Second, Fifth, and Fourteenth Amendment claims. This Court notes that its assessment “is not a preliminary adjudication on the merits” and nothing stated below would be binding at a trial on the merits. Textile Unlimited, Inc. v. A..BMH & Co., 240 F.3d 781, 786 (9th Cir. 2001); see also Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981).
a. Likelihood of Success on the Merits of Plaintiffs’ Second Amendment Claim
The Second Amendment states, in full: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
i. Pre-Bruen Second Amendment Challenges to Large-Capacity Magazines
In Heller v. District of Columbia, the United States Supreme Court struck down a District of Columbia law banning possession of handguns in the home and requiring any lawful firearm in the home to always be disassembled or bound by a trigger lock, rendеring it inoperable. 554 U.S. 570, 635 (2008). In so doing, the Supreme Court concluded that the Second Amendment protects the individual right to bear arms. Id. at 625. Two years later, in McDonald, the Court reiterated that the “central holding in Heller” is “that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” 561 U.S. at 780.
Following McDonald and Heller, the Ninth Circuit adopted a two-step, means-end test to assess the constitutionality of firearms regulations. Young v. Hawaii, 992 F.3d 765, 783–84 (9th Cir. 2021) (en banc). First, courts asked whether the challenged law involved conduct protected by the Second Amendment. Duncan v. Bonta, 19 F.4th 1087, 1100, 1102–03 (9th Cir. 2021) (en banc), vacated and remanded, Duncan v. Bonta, 49 F.4th 1228, 1231 (9th Cir. 2022). If the law did not involve conduct protected by the Second Amendment, then the law was upheld as constitutional. Id. at 1100. If the law did involve conduct protected by the Second Amendment, courts would then proceed to analyze whether the law violated the Second Amendment under either strict or intermediate
Before the Supreme Court‘s decision in Bruen, seven circuits, including the Ninth Circuit, considered the constitutionality of restrictions on large-capacity magazines. Six of these circuits applied the two-step, means-end analysis and found that these restrictions did not violate the Second Amendment.9 See e.g., Duncan, 19 F.4th at 1095, 1111 (upholding a California law prohibiting possession of large-capacity magazines, defined as those that can hold more than ten rounds of ammunition, by applying intermediate scrutiny); Worman v. Healey, 922 F.3d 26, 30, 40 (1st Cir. 2019) (upholding a Massachusetts law proscribing the sale, transfer, and possession of certain semiautomatic assault weapons and large-capacity magazines by applying intermediate scrutiny); Ass‘n. of New Jersey Rifle and Pistol Clubs, Inc. v. Attny. Gen. New Jersey, 910 F.3d 106, 122 (3rd Cir. 2018) (upholding a New Jersey law making it illegal to possess a magazine capable of holding more than ten rounds of ammunition by applying intermediate scrutiny); Kolbe v. Hogan, 849 F.3d 114, 130, 140 (4th Cir. 2017) (en banc) (finding both that “large-capacity magazines are not constitutionally protected arms” and, even if they were constitutionally protected arms, Maryland‘s ban on large-capacity magazines would survive intermediate scrutiny); N.Y. State Rifle & Pistol Ass‘n, Inc. v. Cuomo, 804 F.3d 242, 264 (2d Cir. 2015) (applying intermediate scrutiny to uphold prohibitions on large-capacity magazines in
New York and Connecticut); Heller v. District of Columbia (“Heller II“), 670 F.3d 1244, 1264 (D.C. Cir. 2011) (applying intermediate scrutiny to uphold the District of Columbia‘s prohibition on large-capacity magazines). The Seventh Circuit, for its part, declined to apply means-end scrutiny and instead asked “whether a regulation bans weapons that were common at the time of ratification or those that have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia,’ . . . and whether law-abiding citizens retain adequate means of self-defense.” Friedman v. City of Highland Park, 784 F.3d 406, 410 (7th Cir. 2015) (citing Heller, 554 U.S. at 622–25). Under this analysis, the Seventh Circuit also found that restrictions on large-capacity magazines did not violate the Second Amendment. Id. at 407, 412.10
ii. Post-Bruen Framework for Assessing the Constitutionality of Firearms Regulations
In June of 2022, the Supreme Court explicitly declined to adopt this two-step
The Court noted that in many situations modern firearm technology has evolved well beyond that which existed at the time of the Second Amendment‘s ratification. Id. at 2132 (“The regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868.“) In Bruen, the Supreme Court instructed lower courts, when faced with cases “implicating unprecedented societal concerns or dramatic technological changes” to follow “a more nuanced approach” and “conduct . . . reasoning by analogy” to determine whether a modern firearm regulation would be “unimaginable at the founding.” Id. Though the Supreme Court declined to “provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment,” it concluded that “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are ‘central’ considerations when engaging in an analogical inquiry.” Id. at 2132–33. Finally, the Supreme Court noted that “analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin.” Id. at 2133.11
In discussing the ways in which Bruen altered the analysis for Second Amendment challenges, it is equally important to recognize what Bruen did not do. The Bruen majority noted that the Second Amendment is not a “regulatory straightjacket” that protects a right to “keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 2133, 2128 (quoting Heller, 554 U.S. at 626). Justice Alito, writing in concurrence, noted that Bruen “decides nothing about who may lawfully possess a firearm,” “the requirements that must be met to buy a gun,” or “the kinds of weapons that people may possess,” and disturbed nothing from Heller or McDonald “about restrictions that may be imposed on the possession or carrying of guns.” Id. at 2157 (Alito, J., сoncurring). Instead, Justice Alito emphasized that all the Supreme Court decided in Bruen “is that the Second Amendment protects the right of law-abiding people to carry a gun outside of the home for self-defense” and a law that makes “that virtually impossible is unconstitutional.” Id. at 2159 (Alito, J., concurring).
Justice Kavanaugh, writing in a concurrence joined by Chief Justice Roberts, reiterated both the Bruen majority‘s statement that the Second Amendment is not a “regulatory straightjacket” and Heller‘s
The Bruen Court also acknowledged the constitutionality of particular gun licensing regimes. “[N]othing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes . . . . Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry.” Id. at 2138 n.9. Justice Kavanaugh also wrote separately noting that “shall-issue regimes” that “do not grant open-ended discretion to licensing officials and do not require a showing of some special need apart from self-defense” are “constitutionally permissible,” even if they require an individual to “undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements.” Id. at 2162 (Kavanaugh, J., concurring).
Thus, under Bruen, the test for assessing whether a regulation violates the Second Amendment is as follows: “When the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation.” Id. at 2129–30.
iii. Measure 114‘s Restrictions on Large-Capacity Magazines
This Court turns first to Plaintiffs’ claim that Measure 114‘s restrictions on magazines capable of accepting more than ten rounds of ammunition violate the Second Amendment.
(a) Second Amendment‘s Plain Text
Under Bruen, the first step in assessing whether a regulation violates the Second Amendment is to determine whether the plain text of the Second Amendment covers the conduct regulated by the challenged law. Bruen, 142 S. Ct. at 2126. Accordingly, if the text of the Second Amendment does not cover the conduct, then the conduct is not protected by the Second Amendment. Plaintiffs argue that Measure 114‘s restrictions on large-capacity magazines regulate conduct covered by the plain text of the Second Amendment because large-capacity magazines are in common use for lawful purposes. ECF 5 at 7. Defendants argue that large-capacity magazines are not “arms” covered by the plain text of the Second Amendment because they are neither weapons themselves nor necessary to the use of weapons. ECF 15 at 11. Defendants also argue that large-capacity firearms are accessories most useful for military applications, not for individual self-defense. Id. at 12.
(1) Plaintiffs Fail to Demonstrate Magazines Capable of Accepting More than Ten Rounds are Necessary to Use Firearms for Self-Defense
The Second Amendment covers firearms and items “necessary to use” those firearms. Jackson v. City & Cnty. of San Francisco, 746 F.3d 953, 967 (9th Cir. 2014) (“[W]ithout bullets, the right to bear arms wоuld be meaningless.“); see also Bruen, 142 S. Ct. at 2132 (noting that the Second Amendment “covers modern instruments that facilitate self-defense“). Like bullets, magazines are often necessary to render certain firearms operable.
While magazines in general are necessary to the use of firearms for self-defense, Plaintiffs have not shown, at this stage, that magazines specifically capable of accepting more than ten rounds of ammunition are necessary to the use of firearms for self-defense. As noted
above, the “corollary . . . right to possess the magazines necessary to render . . . firearms operable” is “not unfettered.” Fyock, 779 F.3d at 998. Instead, the right is limited to magazines that are necessary to render firearms operable for self-defense and other lawful purposes. Plaintiffs did submit evidence showing that popular firearms, such as certain variants of the Glock pistol, “come standard” with magazine capacities greater than tеn rounds. ECF 13, Ex. B, at ¶ 2. But Plaintiffs have not produced evidence that these weapons can only operate with magazines that accept more than ten rounds of ammunition and cannot operate with magazines that contain ten or fewer rounds, as allowed under Measure 114.
By contrast, Defendants have produced evidence showing “all firearms that can accept a detachable large-capacity magazine can also accept a magazine that holds 10 or fewer rounds and function precisely as intended.” ECF 16 at ¶ 7. And, for firearms with fixed magazines, Defendants’ evidence shows that “[a]ny fixed-magazine firearm can be modified to hold 10 or fewer rounds and function as intended.” Id. As such, Plaintiffs have not shown that the magazines restricted by Measure 114 are necessary to the use of firearms for lawful purposes such as self-defense. Therefore, Plaintiffs have failed to show that magazines capable of accepting more than ten rounds of ammunition are covered by the plain text of the Second Amendment. Bruen, 142 S. Ct. at 2129–30.
(2) Plaintiffs Fail to Demonstrate That Magazines Capable of Accepting More than Ten Rounds are Firearms in Common Use for Lawful Purposes
Additionally, this Court finds Plaintiffs have not shown that magazines capable of accepting more than ten rounds of ammunition are firearms “‘in common use’ today for self defense” and thereby covered by the plain text of the Second Amendment. Id. at 2134. Plaintiffs argue that “[m]agazines over 10 rounds are commonly possessed by the American public,” ECF
5 at 7, and that “a sizable percentage—
This Cоurt acknowledges that some courts in other circuits, considering similar restrictions on large-capacity magazines, have found that these magazines are in common use. In New York State Rifle & Pistol Ass‘n, for instance, the Second Circuit held that “assault weapons and large-capacity magazines at issue are ‘in common use’ as that term was used in Heller.” 804 F.3d at 255. And in Heller II, the D.C. Circuit likewise held that AR-15s and large-capacity magazines “are indeed in ‘common use.’” 670 F.3d at 1261. Neither of these decisions are binding on this Court, and in each case, the court only assumed—without explicitly deciding—that large-capacity magazines were protected by the
Plaintiffs argue that magazines capable of accepting more than ten rounds of ammunition “are overwhelmingly used for lawful purposes” and that they “have long been commonly possessed and used . . . for the core lawful purpose of self-defense.” ECF 5 at 8, 22. But Plaintiffs cite to no evidence to support these conclusory statements.14 Defendants, for their part, counter Plaintiffs’ assertion with statistics showing that is exceedingly rare for an individual, in a self-defense situation, to fire more than ten rounds. ECF 17-1 at ¶ 10 (analyzing the NRA Armed Citizen Database and finding that the defender fired more than 10 bullets in only two out of 736 reported instances of self-defense).
Both Plaintiffs and Defendants submit evidence illustrating magazines capable of accepting more than ten rounds of ammunition are commonly used by law enforcement. Plaintiff Lohrey states in his declaration that, in his role as sheriff of Sherman County, he relies on “firearms with magazines that hold more than 10 rounds.” ECF 7 at ¶ 2. Plaintiffs allege that law enforcement carry these magazines “to maintain the tactical advantage” when carrying out their official duties.
Defendants also argue that large-capacity magazines are particularly suited to military use. ECF 15 at 12. The Fourth Circuit, in a pre-Bruen en banc decision, found that large-capacity magazines are not protected by the
The Ninth Circuit has noted, without explicitly holding, that there is “significant merit” to the argument that large-capacity magazines are not firearms commonly used for lawful purposes like self-defense, and therefore are not covered by the plain text of the
Finally, Defendants submit evidence showing that while the civilian use of large-capacity magazines for self-defense appears to be relatively low, high-capacity magazines are disproportionately used in the commission of mass shooting events. According to Defendants’ evidence, every mass shooting from 2004 that resulted in 14 or more deaths has involved large-capacity magazines. ECF 17-5 at ¶¶ 12–13. In a study of all mass shooting events resulting in four or more fatalities through 2019 where the magazine capacity was known, sixty percent involved large-capacity magazines. ECF 17-1 at ¶ 26. And, according to Defendants’ evidence, shootings involving large-capacity magazines are deadlier than shootings involving those without these magazines. Id. at ¶ 29.
In sum, the evidentiary record before this Court, at this stage in the litigation, shows that while large-capacity magazines are rarely used by civilians for self-defense, they are often used in law enforcement and military situations. The evidentiary record also shows that large-capacity magazines are disproportionately used in crimes involving mass shootings. Based on this record, this Court concludes that Plaintiffs have not shown that large-capacity magazines are weapons “‘in common use’ . . . for lawful purposes like self-defense” such that they fall within the plain text of the
Assuming for the sake of argument that the
The “burdens at the preliminary injunction stage track the burdens at trial.” Am. Beverage Ass‘n v. City & Cnty. of San Francisco, 871 F.3d 884, 890 (9th Cir. 2017) (quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006)). At trial, if Plaintiffs demonstrate that their conduct is covered by the text of the
However, the fact that Defendants carry the burden of demonstrating the constitutionality of Measure 114 does not eliminate Plaintiffs’ initial burden at the TRO stage of showing likelihood of success on the merits. A TRO is still an extraordinary remedy that this Court may only award upon Plaintiffs’ clear showing of entitlement to relief. This Court finds that, even presuming the
(1) Defendants’ Evidence that Large-Capacity Magazines Implicate a Dramatic Change in Firearms Technology and Unprecedented Societal Conсerns
First, Defendants argue that large-capacity magazines implicate a dramatic change in firearms technology. They have offered evidence that, while multi-shot rifles existed as early as the late 1500s, those firearms were experimental, designed for military use, rare, defective, or some combination of these features.17
Second, Defendants argue that large-capacity magazines implicate unprecedented societal concerns. They have offered evidence that there is no known occurrence of a mass shooting resulting in double-digit fatalities from the Nation‘s founding in 1776 until 1948, with the first known mass shooting resulting in ten or more deaths occurring in 1949. ECF 17-5 at ¶ 10. There were only four mass shootings between 1949 and 1982; in the early 1980s, five mass shootings occurred within five years—two of which, fоr the first time, involved large-capacity magazines. Id. This time period is followed by a twenty-year span in which there were only two mass shootings resulting in ten or more deaths, correlating with the
After the
(2) Imposition of a Comparable Burden That Is Comparably Justified
In cases involving dramatic technological change or unprecedented societal concerns, the next step is considering the how and the why—namely, reviewing the historical evidence presented by Defendants, determining whether Measure 114 and analogous historical regulations impose comparable burdens on the right to self-defense, and deciding whether the burden imposed is comparably justified. Defendants offer evidence that, in the 1800s, states often regulated certain types of weapons, such as Bowie knivеs, blunt weapons, slungshots, and trap guns because they were dangerous weapons commonly used for criminal behavior and not for self-defense. ECF 15 at 17–18; ECF 17-2 at ¶¶ 34–53. Defendants also proffered evidence that every state, except New Hampshire, enacted laws restricting the carrying of arms in crowded places, in groups, or in a concealed matter.19 ECF 17-2 at ¶ 49; ECF 17-2 Ex. B, at 1-3
Defendants also argue that there is a historical tradition of regulating private military organizations. They point to the Supreme Court‘s 1886 opinion in Presser v. People of State of Ill., where the Supreme Court rejected a challenge to an Illinois law which prohibited “any body of men . . . other than the regular organized volunteer militia of this state, and the troops of the United States, to associate themselves together as a military company or organization, or to drill or parade with arms in any city or town of this state, without the license of the governor.” 116 U.S. 252, 253, 268 (1886).21 Although the
In determining whether these historical analogues are “relevantly similar” to Measure 114, this Court must ask whether Measure 114 imposes a comparable burden as those imposed by these historical analogues and is comparably justified. Bruen, 142 S. Ct. at 2132–33. Defendants argue, and this Court agrees on this record, that the burden imposed by Measure 114 on the core
Moreover, according to Defendant‘s evidence, large-capacity magazines appear to be the weapon of choice for the commission of mass shootings. While this Court observes that the Bruen Court rejected means-ends scrutiny, Bruen still instructed lower courts to consider the “how and why” of a particular regulation in historical context. Id. at 2132–33. In considering whether Defendants are comparably justified in imposing Measure 114 as were this Nation‘s earlier legislatures in imposing historical regulations, this Court finds that it may consider the public safety concerns of today. In light of the evidence of the rise in mass shooting incidents and the connection between mass shooting incidents and large-capacity magazines—and absent evidence to the contrary regarding the role of large-capacity magazines for self-defense—Defendants are comparably justified in regulating large-capacity magazines to protect the public.
iv. Measure 114‘s Permit-to-Purchase Provision
Turning next to Plaintiffs’ challenge to Measure 114‘s permit-to-purchase provision, this Court finds that Plaintiffs have failed to establish a likelihood that this provision violates the
There are currently 43 states with some kind of “shall-issue” licensing regime in place, under which “a general desire for self-defense is sufficient to obtain a [permit.]” Id. at 2138 n.9. Of these licensing regimes, Bruen concluded that “nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes.” Id. Writing in concurrence, Justice Kavanaugh further noted that while discretionary regimes like the one at issue in Bruen are constitutionally suspect, “objective shall-issue licensing regimes” do not violate the
Under this clear guidance from Bruen, this Court finds that Plaintiffs have not shown, at this stage, that Measure 114‘s permit-to-purchase provision violates the
Bruen noted that shall-issue regimes can be subject to as-applied challenges if, for instance, a shall-issue regime includes a fee that effectively precludes an applicant from obtaining a permit or there are “lengthy wait times in processing license applications.” Id. at 2138 n.9; see also id. at 2162 (Kavanaugh, J., concurring). Plaintiffs, however, do not currently present any argument to support such an as-applied challenge.24 As such, this Court finds that, based on the current record before it, Plaintiffs are unlikely to succeed on the merits of their
b. Likelihood of Success on the Merits of Plaintiffs’ Fifth Amendment Takings Claim
Although Plaintiffs’ TRO focuses largely on Plaintiffs’
A physical taking involves the “permanent physical occupation of property.” Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427 (1982). The physical appropriation of private property by the government gives rise to a per se taking. Horne v. Dep‘t of Agric., 576 U.S. 350, 360 (2015). But the Takings Clause only applies to
At the outset, this Court notes that Plaintiffs are not likely to succeed on their takings claim because the appropriate remedy for a
Even if this Court were to consider Plaintiffs’ facial takings claim, Plaintiffs must demonstrate that “the mere enactment of [Measure 114] constituted a taking,” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 318 (2002), such that “no set of circumstances exists under which [Measure 114] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). For current owners or potential inheritors of large-capacity magazines, Measure 114 includes a “grandfather clause”—those who already own, or will inherit, large-capacity magazines may keep them. Measure 114 § 11(5)(a)–(c). The language of the statute plainly does not deprive owners of their property. Such a regulation cannot be said to effect a physical taking.
This Court recognizes that Measure 114 is more restrictive for gun dealers and gun manufacturers. However, Plaintiffs have not demonstrated why Measure 114‘s multiple options within the 180-day grace period, including modifying the magazines, removing them from the state, selling them, or otherwise fulfilling their binding contractual obligations, are insufficient. See Duncan, 19 F.4th at 1113 (“Mandating the sale, transfer, modification, or destruction of a dangerous item cannot reasonably be considered a taking akin to a physical invasion . . . .”). Accordingly, this Court finds that Plaintiffs are not likely to succeed on the merits of their
c. Likelihood of Success on the Merits of Plaintiffs’ Fourteenth Amendment Due Process Claim
Under the
Plaintiffs contend that Measure 114 deprives them of property without the due process of law, in violation of the
2. Irreparable Harm Analysis For Each of Plaintiffs’ Claims
In order to prevail on their motion for a TRO, in addition to demonstrating likelihood of success on the merits, Plaintiffs must demonstrate that they will be irreparably harmed if Measure 114 goes into effect. Winter, 555 U.S. at 20. Irreparable harm is “traditionally defined as harm for which there is no adequate legal remedy, such as an award of damages.” Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014). Irreparable harm is harm that is immediate, rather than remote or speculative. City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (The requirement of irreparable injury “cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged . . . .”); see also Caribbean Marine Services Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (holding that a “speculative” injury does not constitute irreparable harm); L.A. Mem‘l Coliseum Comm‘n v. Nat‘l Football League, 634 F.2d 1197, 1201 (9th Cir. 1980) (holding that plaintiffs bear the “burden of demonstrating immediate thrеatened injury as a prerequisite to preliminary injunctive relief”). The mere possibility that Plaintiffs’ constitutional rights under the
Again, Plaintiffs’ briefing and oral argument with respect to irreparable harm focused almost exclusively on their
Plaintiffs have failed to show a non-speculative, immediate risk of irreparable harm. First, there is no immediate risk that Measure 114 would deprive Plaintiffs of the large-capacity magazines that they already legally possess. Under Measure 114, Plaintiffs would still be allowed to possess and store any large-capacity magazines on their property and could continue to use those magazines—within the limits of Measure 114—outside of their home.
Plaintiffs also argue that they will be irreparably harmed because Measure 114 restricts their ability to use large-capacity magazines for self-defense. ECF 5 at 32. Plaintiffs’ declarations note that large-capacity magazines are “overwhelmingly preferred by law-abiding Americans for personal and home defense.” See, e.g., ECF 6 at ¶¶ 7, 12; ECF 7 at ¶¶ 9, 14; ECF 8 at ¶¶ 7, 12. But Plaintiffs’ declarations also contain conflicting evidence, such as the claim that “criminals rarely fire more than a few rounds, making magazine capacity irrelevant for almost all crimes.” See, e.g., ECF 6 at ¶ 11; ECF 7 at ¶ 13; ECF 8 at ¶ 11. Defendants, meanwhile, have produced evidence suggesting that large-capacity magazines are rarely used in situations of self-defense. ECF 17-1 at ¶ 17. This conflicting evidence supports this Court‘s conclusions that Plaintiffs’ injuries are speculative and thus insufficient to meet the burden of proving irreparable harm absent a TRO.30
Moreover, as previously stated, Measure 114 does not prohibit those who already own large-capacity magazines, or who inherit them, from using them on their own property. Nor does the measure prohibit individuals from using firearms capable of accepting ten or fewer rounds of ammunition for self-defense both inside and outside of the home, or from carrying multiple magazines outside of the home. Plaintiffs provide no evidence in the record to show that the firearms available to Plaintiffs under Measure 114 would be so ineffective for use in self-defense as to constitute immediate and irreparable harm. Absent a more robust evidentiary record showing that Plaintiffs’ ability to defend themselves inside and outside of the home would be immediately harmed by Measure 114, this Court finds that Plaintiffs have not shown that their ability to defend themselves would be immediately and irreparably harmed absent a TRO.
Additionally, this Court reiterates that Measure 114 contains an exception for law enforcement officers, who are authorized to acquire, possess, or use large-capacity magazines within the scope of their official duties. Measure 114 § 11(4)(c). In his declaration in support of the TRO, Plaintiff Lohrey, a sworn law enforcement officer, alleges that because law enforcement officers “often have to purchase their own firearms and magazines to use on duty” and typically “use firearms with magazines that hold more than 10 rounds,” law enforcement officers would no longer be able to purchase “the proper equipment” if Measure 114 were to go into effect. ECF 7 at 2. But Measure 114 explicitly states that “peace officers”—which includes sheriffs—may “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
Plaintiffs have also failed to establish that Measure 114 will cause immediate and irreparable harm to any gun store owner Plaintiffs. Although the loss of one‘s business can constitute an irreparable harm, Plaintiffs have not shown that any Plaintiff is likely to lose significant business if Measure 114 goes into effect. See hiQ Labs, Inc. v. LinkedIn Corp., 31 F.4th 1180, 1188 (9th Cir. 2022). Moreover, any economic harm that Plaintiffs might suffer by having to sell or transfer high-capacity magazines out of state would be neither irreparable nor immediate. See Los Angeles Mem’l Coliseum Comm’n, 634 F.2d at 1202 (“[M]onetary injury is not normally considered irreparable.”).
Finally, Plaintiffs provide no evidence to support their claim that the permit-to-purchase provision would cause them immediate irreparable harm. Plaintiffs do not allege that their permit applications would likely be rejected if they were to apply for such a permit. Plaintiffs do not allege that they have concrete plans to purchase firearms in the future or even to apply for a permit to purchase firearms. Nothing in the permit-to-purchase scheme would make it impossible for Plaintiffs to use their pre-existing firearms for self-defense, as it is not illegal to possess a firearm without a permit. See Official Voters’ Pamphlet, General Election, Nov. 8, 2022, 90. Measure 114, in short, does not retroactively make possession of already legally owned firearms illegal.
In sum, Plaintiffs have not demonstrated at this stage that they are likely to suffer irreparable harm if this Court does not enjoin Measure 114 before Decеmber 8, 2022.
3. Balance of Equities and Public Interest For All Claims
This Court turns finally to its consideration of the balance of equities and the public interest. Winter, 555 U.S. at 20. When the government is the party opposing a TRO or preliminary injunction, the defendant‘s equities merge with the public interest. See Nken v. Holder, 556 U.S. 418, 435 (2009). This Court acknowledges public interest on both sides and concludes that these factors do not favor either party.
Defendants have a substantial interest in enforcing validly enacted statutes. “Any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, 567 U.S. 1301, 1303 (2012) (internal citation omitted); see also Coal. For Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (same). Such an interest is particularly strong here, where Measure 114 was enacted directly by a majority of Oregon voters.
Defendants also have an interest in protecting the public safety of the people of Oregon from gun violence. Dahl v. HEM Pharms. Corp., 7 F.3d 1399, 1404 (9th Cir. 1993) (“Public safety should be considered by a court when granting equitable relief.”). Defendants rely on evidence suggesting that permit-to-purchase provisions reduce mass shootings, homicides, and suicides. ECF 15 at 31–32. Defendants also note that since the federal ban on large-capacity
Plaintiffs have an interest in the continued exercise of their
CONCLUSION
For the reasons stated above, Plaintiffs have failed at this stage to carry their burden of showing a likelihood of success on the merits and irreparable harm absent a TRO. Accordingly, Plaintiffs’ Motion for a TRO, ECF 5, is DENIED with respect to Measure 114‘s restrictions on large-capacity magazines. Plaintiffs’ Motion is DENIED with respect to a facial challenge to Measure 114‘s permitting provision. However, in light of the difficulty the State has conceded in terms of implementation of the permitting provisions at this stage, implementation of those permitting provisions is stayed for thirty days. Parties are ordered to confer and report to the Court regarding any further postponement requests.
Plaintiffs are entitled to a prompt hearing to determine whether a preliminary injunction should issue based on a more complete record. The parties are ordered to confer and propose a briefing schedule to this Court by December 7, 2022.
IT IS SO ORDERED.
DATED this 6th day of December, 2022.
/s/ Karin J. Immergut
Karin J. Immergut
United States District Judge