Oregon legislature poised for conflicts over gun-control legislation

Ben Botkin

(Oregon Capital Chronicle) Oregon lawmakers are debating firearms legislation this session, setting the stage for legislative battles and courtroom fights that could go to the U.S. Supreme Court.

The proposals, all backed by Democratic lawmakers, would ban ghost guns that lack a serial number, put a permit system in place for purchasing firearms and establish a 72-hour waiting period for owners to obtain a  firearm.

The legislation could make Oregon the first state in the nation to test the U.S. Supreme Court’s framework established in 2022 that requires defendants in gun-control suits to show historical precedence dating to the 18th century.

The bills would impact tens of thousands of Oregon gun purchasers, and hundreds of Oregonians have submitted testimony. They are among the most divisive bills this session, with Republicans and Democrats at odds over  them.

Democratic lawmakers say firearm restrictions are needed to prevent a mass shooting – and accidental injuries and deaths. Republican lawmakers say the proposals would only harm law-abiding citizens and disrupt pending litigation that seeks to overturn Measure 114, a 2022 voter-approved proposal establishing a permit-to-purchase system with safety course requirements.

A Harney County judge has put the gun-control law on hold amid a lawsuit filed by gun owners and firearms rights organizations. The measure also faces a challenge in federal court.

The debate pits safety concerns against individual rights, with constitutional questions about government restrictions and requirements related to firearms ownership.

Any legislative-approved proposal would likely end up in court, and even if it survived a court challenge, would take time to implement.

(See the sidebar below for details about the bills.)

Senate Bill 348 would build upon Measure 114 by requiring gun purchasers to obtain a permit and undergo a safety course.

It would enact requirements resembling those in Measure 114, while adding timelines. For example, the permit system to purchase a firearm would not be required until July 2024, giving the state time to set up a system.

The bill also would require any court challenges to be filed in Marion County Circuit Court to prevent plaintiffs shopping for a favorable venue. Gun Owners of America, based in Virginia, and a related organization, the Gun Owners Foundation, filed their suit against Measure 114 in Harney County where two other plaintiffs, Joseph Arnold and Cliff Asmussen, live.

“If you look at the plaintiffs that are listed in the Harney County state constitutional challenge – the moneybags – the people who are funding this effort are from the state of Virginia,” said Sen. Floyd Prozanski, D-Eugene and chairman of the Senate Judiciary Committee.

The Marion County requirement aims “to stop that type of judge shopping,” he said.

The bill passed the Senate committee and is in the Joint Ways and Means Committee, which will consider implementation costs.

Republicans say the requirements are too onerous.

“It’s just a lot of expense and a lot of waiting,” Sen. Kim Thatcher, R-Keizer, said, referring to the waiting periods and permit costs. “And I think a lot of people interpret that as infringement.”

Thatcher also criticized the bill’s move to limit legal challenges to Marion County Circuit Court.

“It’s abuse of the process,” Thatcher said. “People are doing what was supposed to be happening, go to the courts. And now this would short circuit that and then say, ‘Now if you have a challenge, you’ve got to go to this place.’”

Legal expert weighs in

A U.S. Supreme Court ruling in June that overturned a New York firearms law created a new legal landscape for firearms legislation. The ruling set a standard that requires courts to scrutinize whether regulations would reflect those established historically, at least in principle. Called the Bruen test, it will be the standard that litigated regulations will have to meet to withstand court challenges, said Jim Oleske, a law professor at Lewis & Clark Law School in Portland.

Oleske said the Bruen test will require judgements based on practices when the U.S. Constitution was framed. That will require the courts to weigh historical practices around firearms – and apply their principles to today’s context.

“Were there restrictions on machine guns in 1791? Of course not,” he said. “There weren’t machine guns in 1791.”

He said restrictions don’t need a colonial twin but need to be analogous.

For example, historically there have been restrictions on dangerous and unusual weapons, he said.

The advancement of technology – such as weapons without serial numbers – complicates the issue, he said.

Oregon’s early foray into firearms legislation positions the state to potentially be one that sets an early precedent, he said.

Court cases shape

The potential for litigation around Senate Bill 348 has shaped legislative strategy. A legal challenge would pause all of its provisions, including the 72-hour waiting period between the purchase of a firearm and its transfer to the owner.

But the Senate Judiciary Committee has also included the 72-hour requirement in a different bill – Senate Bill 393 – to keep it alive even if Senate Bill 348 were challenged in court.

Prozanski said it’s an important and reasonable provision that he believes could withstand a legal challenge: Some states have a waiting period of 10 days.

He said 72 hours is enough to prevent someone from buying a firearm out of passion and that judges would likely consider it reasonable. Republicans, including Thatcher, oppose the waiting period and criticized Democrats for not taking any testimony in a public hearing.

“That happened – boom – without a hearing,” Thatcher said. “You had an adopted amendment, and it went out of committee without hearing.”

Prozanski acknowledged her point. When Senate Bill 393 went through without testimony, legislative deadlines were looming, Prozanski said, and he was still operating under the assumption that the separate hearing on Senate Bill 348 already included that issue.

“This is where I made a mistake,” Prozanski said in an interview with the Capital Chronicle.

Other proposals draw attention

House Bill 2005 would make changes beyond those of Measure 114.

The proposal would ban untraceable guns, raise the minimum age from 18 to 21 to purchase powerful firearms like semiautomatic weapons and allow local agencies to ban firearms on government property.

Supporters say these steps would boost public safety and give local agencies and law enforcement tools to prevent gun violence.

“We need to be able to have common-sense regulations to help us have safe communities,” said Rep. Jason Kropf, D-Bend and chair of the House Judiciary Committee.

The partisan divide between Republican and Democratic lawmakers on this bill – and the others – is wide.

It was also anticipated.

“There was no outcome on this where we were going to walk in and have some sort of bipartisan Kumbaya moment,” said one of the bill’s chief sponsors, Rep. Dacia Grayber, D-Tigard.

Grayber said the purpose of HB 2005 is to be “very thoughtful and intentional.”

“This seems broad and sweeping to some folks but it is very tailored,” Grayber said.

Its Democratic sponsors say they’ve kept opposition in mind. The legislation gives owners a year to get serial numbers for firearms missing them. And the bill would allow, but not require, local government agencies to ban firearms on government-owned property.

But Rep. Lily Morgan, R-Grants Pass, said the bill is not narrow. For example, local governments like transit agencies own buses and the bill would potentially ban firearms on them, Morgan said.

“This is not as straightforward and clear as it could be,” Morgan said.

Other areas she’s concerned about: Water and irrigation districts own property adjacent to private property and local agencies can own houses that are rented out.

The House will debate and likely vote on the bill May 2.