Update to
Arnold v Kotek (OR magazine ban/permit to purchase) -
https://www.thehighroad.org/index.php?threads/scotus-considering-bianchi-v-frosh-duncan-v-bonta-the-turning-point-for-aw-magazine-ban.905531/page-17#post-12877628(NOTE: This is a state case under Oregon state constitution)
FPC attorney Anthony Miranda discuss update to case and offer his opinions/comments on the case -
https://www.youtube.com/watch?v=OIgIO5_BNfs- Update in a major case against a statewide ban on ... purchase/possession of magazines that hold more than 10 rounds and ... permit to purchase ... firearms
- Oregon Measure 114 ... was recently ruled unconstitutional and struck down in its entirety ... issued permanent injunction
- State of Oregon is currently attempting to remove that permanent injunction through the appeals process
- Case was just heard in ... Oregon court of appeals ... asked to remove and reverse that permanent injunction
- Since this is a State challenge under the Oregon state constitution, there is a different standard ...
different type of analysis ... Oregon has to apply a two-phase test [
Federal cases under Bruen ruling now use "Text, history and tradition" test with burden shifting to the state/government and eliminated two-step interest balancing approach of greater good of society/community over individual rights like mass shooting]
- Under phase one, there is a determination of whether or not Article 1 Section 27 of the Oregon constitution actually applies
- State of Oregon argues Article 1 Section 27 does not apply at all because ... magazines are not arms
- Plaintiffs argue [magazines] are protected arms
- Under phase two ... looking at public's interest and balancing the claimed purpose with potential of undue burden ... impacts that this would have on the constitutional right to purchase and possess firearms
- This analysis battle was at the forefront of the arguments
- [Three] judges that heard this case ... are democrat appointed judges so take that for what it is
- During hearing ... arguments were focused ... on ... whether or not these magazine restrictions and the permit process ... is actually a violation of the Oregon constitution
- State ... argued ... this is a facial challenge and plaintiffs have not shown that this would not be lawful in any application ... state ... is saying that in some way this measure is constitutional in at least some application and therefore it should not have been struck down entirely
- State also argue for the reasonableness standard ... essentially ... does this measure reasonably prevent the public harm ... does the law reasonably relate to the public safety and is the right unduly frustrated by this measure
- State ... also believe that this does not unduly burden the right to keep and bear arms
- State ... also point out that there were fact findings by the lower court but they argue that appeals court does not have to defer to any of those fact findings ... look at any of those records ... follow the evidence ... and do a ... fresh review of this case and ultimately come to whatever conclusion that they want
- State ... also argue that ... magazines are not protected arms ... even if these were protected arms,
the measure is still reasonable ... restriction under the Oregon precedent
- One of the judges asked, "Well, aren't these just components of a weapon?" and state ... says yes, they believe that these are just components and ... not necessary for the function of a weapon ... there are smaller limited capacity magazines that could be used in the alternative to have the weapon be functional and therefore ... these magazines that hold more than 10 rounds are not necessary for the function of a weapon
- Plaintiff ... argument ... lower court findings of fact are relevant and should actually be accepted by the court of appeals because it's relevant for the constitutionality of these restriction ... lower court developed a robust record ... a lot of evidence ... data and ... testimony about the public interest whether or not it would actually be served by measue
- They also had a ton of police officers and police organizations that said no these restrictions on magazines would not actually serve public's interest
- Plaintiffs didn't argue ... two-phase or the five-step test should apply here on review at the first phase, the court should determine does this law apply to self-defense and are these protected arms... - Of course ... these are protected arms and that would mean that you would then move to the second step of the phase which really looks at a three-part analysis
- Under that test, the legislator may specifically regulate a manner of possession and also the use of protected weapons to promote public safety as long as that exercise of that authority does not unduly frustrate the right to bear arms elsewhere and here is where the lower court ... found Measure 114 does unduly burden the right to keep and bear arms because it's a outright restriction on magazine capacity and then also creates a significant barrier for the exercise of the purchase and possession of firearms
- There's also ... question about ... timeline to get ... permits and the potential for indefinite holds on your ability to get the permit
- There's also an issue with Measure 114 because it's so over broad and over burdensome where it's targeting every single resident in the state of Oregon ... it's not just focused on claimed dangerous people or you know felons in possession ... it's applying broadly to everyone
- The main goal of this measure is to require all people within the state of Oregon to go through the training, to go through the permit process to be able to purchase and possess these types of items and
- It's just a blanket ban on the purchase and possession of magazines that hold more than 10 rounds - Big hearing ... my general sense is that this court of appeals may want to reverse the lower court decision, remove that permanent injunction
- My bet is that they're going to try to take the easy way out ... try to find that this is a facial challenge, that as a facial challenge of this measure, it's constitutional and at least some of its applications, which I don't think it is but maybe, they're going to say that in some ways this is constitutional and its applications and therefore the lower court striking down the entire measure based on the facial analysis was incorrect and then they would want to send it back down to the lower court
- Regardless of what happens, I think ... this is going to get appealed up to the Oregon state supreme court
- What's interesting about that is the Oregon state supreme court multiple times already has not wanted to get involved in this specific issue. The state of Oregon prior when there was TRO in preliminary injunctions ... Oregon state supreme court deferred they did not want to get involved and they denied emergency relief so it's going to be interesting to see how that plays out
- Now we're going to be waiting to see how the court of appeals rules
