556 March 12, 2025 No. 200
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Joseph ARNOLD
and Cliff Asmussen,
Plaintiffs-Respondents,
and
GUN OWNERS OF AMERICA, INC.,
and Gun Owners Foundation,
Plaintiffs,
v.
Tina KOTEK,
Governor of the State of Oregon, in her official capacity;
Dan Rayfield, Attorney General of the State of Oregon,
in his official capacity; and Casey Codding,
Superintendent of the Oregon State Police,
in his official capacity,
Defendants-Appellants.
Harney County Circuit Court
22CV41008; A183242
Robert S. Raschio, Judge.
Argued and submitted October 29, 2024.
Robert Koch, Assistant Attorney General, argued
the cause for appellants. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Tony L. Aiello, Jr., argued the cause for respondents.
Also on the brief were Tyler D. Smith and Tyler Smith &
Associates, P.C.
Nadia Dahab and Sugerman Dahab filed the brief amici
curiae for Lift Every Voice Oregon, Ceasefire Oregon,
Central Oregon Gun Safety Advocates, Jewish Federation
of Greater Portland, League of Women Voters of Oregon,
Muslim Educational Trust, Ecumenical Ministries of
Oregon, VIVA Inclusive Migrant Network, and Albina
Ministerial Alliance.
Cite as 338 Or App 556 (2025) 557
Elizabeth C. Savage and Elizabeth Savage Law, PC, filed
the brief amicus curiae for Portland Metro Chamber.
Jessica G. Ogden, Matthew T. Nelson, and Covington
& Burling, LLP, New York, NY; Timothy C. Hester and
Covington & Burling, LLP, Washington, DC; Priya S.
Leeds and Covington & Burling, LLP, San Francisco, CA;
Douglas N. Letter and Shira Lauren Feldman; Esther
Sanchez-Gomez and Giffords Law Center to Prevent Gun
Violence; Ciara Wren Malone; and Zachary J. Pekelis, W.
Scott Ferron, and Pacifica Law Group, LLP; filed the brief
amicus curiae for Brady Center to Prevent Gun Violence,
Giffords Law Center to Prevent Gun Violence, March for
Our Lives, Oregon Alliance for Gun Safety, Alliance for Gun
Responsibility, and Gun Owners for Responsible Ownership.
Margaret S. Olney and Bennett Hartman, LLP, filed
the brief amici curiae for The Oregon Medical Association,
Oregon Pediatric Association, Oregon Nurses Association,
Oregon Academy of Family Physicians, Oregon, Oregon
Chapter of the American College of Physicians, Oregon
Chapter of the American College of Emergency Room
Physicians, Oregon Society of Physicians Assistants,
Oregon Psychiatric Physicians Organization, and Oregon
Physicians for Social Responsibility.
Dominic Carollo and Carollo Law Group filed the brief
amici curiae for Eastern Oregon Counties Association and
Oregon Farm Bureau Federation.
Before Ortega, Presiding Judge, Hellman, Judge, and
Mooney, Senior Judge.
ORTEGA, P. J.
Reversed and remanded.
558 Arnold v. Kotek
Cite as
338 Or App 556 (2025) 559
ORTEGA, P. J.
In November 2022, the people of Oregon enacted
Ballot Measure 114, the Reduction of Gun Violence Act, which
is a comprehensive law that makes three major changes in
Oregon’s gun laws: It requires a permit to purchase a firearm from any transferor; it requires the completion (not just
the initiation) of a criminal background check of the transferee at the point-of-transfer for a firearm; and it limits lawful firearm magazine capacity to 10 or fewer rounds, with
certain exceptions, most notably for law enforcement and
the military. See Or Laws 2023, ch 1 (Ballot Measure 114).
Plaintiffs challenged the facial constitutionality of the measure under Article I, section 27, of the Oregon Constitution,
which provides that “[t]he people shall have the right to bear
arms for the defence [sic] of themselves, and the State[.]”1 In
a general judgment, the circuit court declared that Measure
114 was facially unconstitutional and permanently enjoined
enforcement of the law. The court also entered a supplemental judgment awarding plaintiffs $5,374 in costs, a $105
prevailing party fee, and $196,790 in attorney fees. The
state appeals from both judgments. We conclude that all of
Measure 114 is facially constitutional under Article I, section 27, based on the established legal test set out in State
v. Christian, 354 Or 22,
307 P3d 429 (2013).2 Accordingly,
we reverse. We remand to the circuit court for the limited
purposes of entering a declaratory judgment consistent with
our opinion and determining whether the state is entitled to
fees or costs.
1
Plaintiffs do not raise a challenge under the Second Amendment to the
United States Constitution. Measure 114 has been challenged separately under
the Second Amendment in federal court. After a bench trial, the District Court of
Oregon upheld Measure 114, Oregon Firearms Fed’n v. Kotek, 682 F Supp 3d 874
(D Or 2023); Oregon Firearms Fed’n, Inc. v. Brown, 644 F Supp 3d 782 (D Or 2022)
(denying a temporary restraining order), and the case is currently on appeal in
the Ninth Circuit Court of Appeals. We express no opinion on the fact-finding
approach undertaken by the district court to address the facial challenge under
the Second Amendment, except to note that a facial challenge under Article I,
section 27, proceeds under a legal framework established by the Oregon Supreme
Court which does not rely on that type of fact finding or on Second Amendment
jurisprudence.
2
The state raises six assignments of error on appeal. Because we reverse
based on the state’s first assignment of error, we do not address any other
assignment.
560 Arnold v. Kotek
I. PROCEDURAL BACKGROUND
In November 2022, the people of Oregon enacted
Measure 114, which amends ORS 166.210 to 166.490, the
statutes that regulate the possession and use of weapons and
the sale and transfer of firearms.3 Measure 114 makes three
major changes to the law: It requires a permit to purchase
a firearm (the permit-to-purchase program); it requires the
completion of a background check of the transferee at the
point-of-transfer for a firearm (the point-of-transfer background check); and it limits lawful firearm magazine capacity to 10 or fewer rounds (the large-capacity magazine ban).
Measure 114 includes an express policy statement enacted
as part of the legislation, which provides:
“The People of the State of Oregon find and declare that
regulation of sale, purchase and otherwise transferring of
all firearms and restriction of the manufacture, import,
sale, purchase, transfer, use and possession of ammunition
magazines to those that hold no more than 10 rounds will
promote the public health and safety of the residents of this
state and this Act shall be known as the Reduction of Gun
Violence Act.”
Measure 114, § 2.
Shortly after the people of Oregon enacted Measure
114, plaintiffs filed for declaratory and injunctive relief,
alleging that the measure was facially unconstitutional
under Article I, section 27. Plaintiffs’ complaint did not
allege an as-applied challenge to the measure. In advance
of trial, plaintiffs applied for and the circuit court issued
a temporary restraining order and preliminary injunction
that prevented the measure from going into effect until a
trial could be held. The state sought mandamus relief from
the injunction in the Supreme Court, which was denied.
Arnold v. Kotek, 370 Or 716,
524 P3d 955 (2023). After a
six-day trial that primarily included testimony from experts
on the historical record of firearms, modern day firearms,
and gun violence, the circuit court issued a comprehensive
letter opinion. The court considered two aspects of Measure
3
For ease of reference, we refer to the section numbers in Measure 114, and
not the codified statute numbers in the Oregon Revised Statutes, throughout this
opinion.
Cite as 338 Or App 556 (2025) 561
114 separately: the permit-to-purchase program and the
large-capacity magazine ban. The court did not address the
point-of-transfer background check because it considered it
a part of the permit-to-purchase program. In sum, the court
determined that both aspects of the measure were facially
unconstitutional under Article I, section 27, and permanently enjoined enforcement of the measure.4 As a result,
Measure 114 has never gone into effect.
With regard to the permit-to-purchase program,
the court determined that “Oregon citizens have a right to
self-defense against an imminent threat of harm, which is
unduly burdened by Ballot Measure 114’s permit to purchase
scheme.” In arriving at that conclusion, the court stated
that the parties agreed on three “facts” that it found fatal
to the constitutionality of the law: that Measure 114 delays
purchases of firearms for a minimum of 30 days, that the
program derives its language from the concealed handgun
license statute, and that the Federal Bureau of Investigation
(FBI) refuses to conduct criminal background checks which
are required by the measure.5 The court concluded that the
“30-day absolute prohibition on the initial purchase of a firearm is not permitted under the Oregon Constitution”; that
using the concealed handgun license scheme is impermissible because it allows “review of a decision by an elected
official under the principles of due process” instead of under
“intermediate scrutiny” where the burden is on the government to show an important government objective and competent evidence to restrain the right and because it “flip[s]
the burden of proof, requiring citizens to prove they are not
dangerous”; and that, because the FBI will not conduct criminal background checks, a permit-to-purchase cannot be
issued under Measure 114 without going through the judicial review process, which unduly burdens the Article I, section 27, right. The court also relied on the state “fail[ing] to
provide any convincing evidence of a threat to public safety
4
The circuit court ruled that it would address only the facial constitutionality of Measure 114 and would not address an as-applied challenge. Plaintiffs do
not seek review of that ruling on appeal.
5
We note here that parties cannot stipulate to how a statute operates, and it
is not a question of fact. It is the role of the courts to correctly interpret statutes
as a matter of law.
562 Arnold v. Kotek
requiring a permitted process,” failing to “provide sufficient
evidence to find these harms require a complete restraint
to firearm purchases for at least 30 days,” and failing to
provide “evidence the program would help reduce [gun violence] harms.” The court refused to consider the preamble to
the measure, which was presented to the voters, because the
state did not prove that it was factually true.
With respect to the large-capacity magazine ban,
the circuit court concluded that large-capacity magazines
are protected arms under Article I, section 27. The court
then concluded that “most firearms, except those specifically excluded by the definition in Ballot Measure 114, are
banned under by [sic] Ballot Measure 114, because there is
no effective way of limiting magazines to ten rounds or less
by permanently alter[ing] them and the magazines are readily capable of alteration or changed to carry more than ten
rounds within seconds.” The court’s reasoning was based on
its reading of the definition of “large-capacity magazine” in
Measure 114, which includes a magazine that “can be readily restored, changed, or converted to accept, more than 10
rounds of ammunition,” Measure 114, § 11(1)(d), and that
“permanently altered” means that “it is not capable, now or
in the future, of accepting more than 10 rounds of ammunition,” Measure 114, § 11(1)(d)(A), and on expert testimony
that components can be removed from magazines such that
they could hold more than 10 rounds and that permanent
alterations to larger magazines could be removed with a
drill or other methods. The court concluded that the effective ban on most firearms was facially unconstitutional.
The court also determined that banning large-capacity magazines did not enhance public safety to a degree
that allowed the undue burden on the Article I, section 27,
right, because: (1) off-duty officers would not be able to possess their issued weapons, and could not respond directly to
emergent situations, (2) citizens use large-capacity magazine firearms to defend themselves, (3) mass shootings are
“very rare,” (4) defendants did not “show the limitation of ten
rounds has any demonstrable effect on negative outcomes
to mass shooting events,” (5) most untrained persons can
reload within six seconds and trained persons can reload in
Cite as 338 Or App 556 (2025) 563
around two seconds, and (6) “there is no clarity in the literature about how often large-capacity magazines were used”
in mass shootings.
The court entered a general judgment that declared
Measure 114 facially unconstitutional and permanently
enjoined enforcement of the law. The court also entered a
supplemental judgment awarding plaintiffs costs and fees.
The state now appeals both of those judgments.
II. LEGAL FRAMEWORK
We begin with a discussion of the legal framework
that we are required to apply in this case on a facial constitutional challenge under Article I, section 27.
A. Standard of Review
We review as a matter of law a facial challenge
under Article I, section 27, as well as any necessary statutory interpretation of Measure 114. See Christian, 354 Or at
26, 40 (taking that approach). There is some dispute between
the parties over how we should review factual findings that
the circuit court made based on the testimony offered below.
Ultimately, we do not address those findings, because the
circuit court’s analysis did not adhere to the legal framework that we are required to follow as set out in Christian
and discussed below, which if followed, would have made
most of the court’s findings irrelevant to its legal decision.6
As the Supreme Court recognized in the course of rejecting
the notion that a party has a burden of proof or persuasion
with respect to the facial constitutionality of a law:
“ ‘[A]n ambiguity in the constitution or in a statute does not,
by itself, create an issue of fact, let alone one that must
be resolved by the presentation of evidence.’ Ecumenical
6
For example, the circuit court made extensive findings about whether a
threat to public safety exists that requires the regulations in Measure 114 and
about whether the regulations in Measure 114 would, in fact, address such
threats. As explained below, those inquiries are not part of the legal question
before a court that has been asked to resolve a facial challenge under Article I,
section 27.
We further note that, on appeal, plaintiffs have asserted the position that the
state, as the law’s proponent, has a burden to prove “the law’s necessity for, and
actual furtherance of, public safety.” We reject that assertion as explained here
and below.
564 Arnold v. Kotek
Ministries v. Oregon State Lottery Commission, 318 Or 551,
558,
871 P2d 106 (1994). Rather, the court’s ‘”sole duty …
is to resolve the dispute in terms of the applicability of …
the constitutional provision[ ]”’ that defendants invoke,
that is, Article I, section 27. Id. at 559 (quoting Monaghan
v. School District No. 1, 211 Or 360, 363,
315 P2d 797 (1957)
(first ellipsis in Ecumenical Ministries)).”
State v. Hirsch/Friend, 338 Or 622, 630-31,
114 P3d 1104
(2005), overruled in part, Christian,
354 Or at 40 (overruled to
the extent that Hirsch/Friend permitted a facial overbreadth
challenge under Article I, section 27); see also Christian,
354
Or at 34, 40-41 (assigning no burdens of proof or persuasion
and addressing facial constitutionality under Article I, section 27, purely as a matter of law). Cf. Payless Drug Stores
Northwest v. Brown,
300 Or 243, 247,
708 P2d 1143 (1985)
(“The [facial] constitutionality of a law as enacted is rarely
if ever dependent on facts, least of all on the kind of facts
denominated as ‘adjudicative facts’ in the Oregon Evidence
Code (Rule 201(a)) and subject to being proved by evidence.
This is so because almost all laws are written to govern
numerous concrete situations under circumstances that may
change over time.”). To the extent findings of historical fact
are referred to in our decision, those facts are about the history of firearms and the mechanical operation of modern-day
firearms. We do not perceive any dispute in the record on
the limited facts that we refer to. Thus, we understand our
task as addressing the legal question of whether Measure
114 is facially valid under Article I, section 27. See Christian,
354 Or at 34, 40-41 (addressing questions posed by a facial
challenge under Article I, section 27, as purely questions of
law); see also State v. Delgado,
298 Or 395, 400-03,
692 P2d
610 (1984) (addressing as a pure question of law whether
a switchblade knife was a constitutionally protected arm
under Article I, section 27, using historical treatises).
B. Legal Framework for Facial Challenge Under Article I,
Section 27
The legal framework for addressing a facial challenge
under Article I, section 27, is established by Supreme Court
case law and circumscribes the scope of our review in important ways. First, on a facial challenge under Article I, section
27, our review “is limited to whether the [law] is capable of
Cite as 338 Or App 556 (2025) 565
constitutional application in any circumstance.” Christian,
354 Or at 40. That is, “[f]or a statute to be facially unconstitutional, it must be unconstitutional in all circumstances,
i.e., there can be no reasonably likely circumstances in which
application of the statute would pass constitutional muster.”
State v. Sutherland,
329 Or 359, 365,
987 P2d 501 (1999); cf.
City of Portland v. Sottile,
336 Or App 741, 744,
561 P3d 1159
(2024) (stating with respect to a facial challenge under the
Second Amendment to the United States Constitution that
“[a] facial challenge is ‘the most difficult challenge to mount
successfully,’ because it ‘requires a defendant to establish that
no set of circumstances exists under which’ the law would be
valid.” (Quoting United States v. Rahimi,
602 US 680, 693,
144
S Ct 1889, 1898,
219 L Ed 2d 351 (2024))). In making that
clarification in Christian, the court held that an overbreadth
challenge is not a challenge that can be brought on a facial
challenge under Article I, section 27.7
Second, our review is circumscribed by the Supreme
Court’s prior interpretation and application of Article I,
section 27. In Christian, the Supreme Court explored its
jurisprudence on Article I, section 27, and pulled together
the key features that we must apply in this case. The right
that Article I, section 27, establishes is an “individual right
to bear arms for purposes limited to self-defense,” which
limits the scope of the constitutionally protected conduct.
Christian, 354 Or at 30 (citing State v. Kessler,
289 Or 359,
614 P2d 94 (1980)). The self-defense right is also limited to
self-defense using constitutionally protected arms.
Id. As to
whether a weapon is so constitutionally protected, the court
in Delgado stated:
“The appropriate inquiry in the case at bar is whether
a kind of weapon, as modified by its modern design and
function, is of the sort commonly used by individuals for
personal defense during either the revolutionary and
7
In a facial overbreadth challenge, the challenger “need not demonstrate that
the statute at issue is unconstitutional under the particular circumstances at hand.
Rather, the challenger will prevail in his or her facial challenge if the court concludes that the statute in question prohibits constitutionally protected conduct of
any kind.” Hirsch/Friend, 338 Or at 628. In Christian, the Supreme Court concluded
that facial overbreadth challenges are not cognizable in Article I, section 27, challenges and overruled Hirsch/Friend and State v. Blocker,
291 Or 255,
630 P2d 824
(1981), to the extent those cases allowed such challenges. Christian,
354 Or at 40.
566 Arnold v. Kotek
post-revolutionary era, or in 1859 when Oregon’s constitution was adopted. In particular, it must be determined
whether the drafters would have intended the word ‘arms’
to include the [weapon at issue] as a weapon commonly
used by individuals for self defense.”
Delgado, 298 Or at 400-01 (footnote omitted).
The court, in Christian, summarized the contours
of the right to bear arms enshrined in Article I, section 27,
as follows:
“Because the right to bear arms is not an absolute right,
our Article I, section 27, holdings reflect a judicial recognition that the legislature has wide latitude to enact specific
regulations restricting the possession and use of weapons to
promote public safety. We have consistently acknowledged
the legislature’s authority to enact reasonable regulations
to promote public safety as long as the enactment does not
unduly frustrate the individual right to bear arms for the
purpose of self-defense as guaranteed by Article I, section
27.”
354 Or at 33.8 Further, as explained in Hirsch/Friend,
338
Or at 639, the right in Article I, section 27, is not balanced
against state interests; “rather, any constitutional limitations on the state’s actions ‘must be found within the language or history’ of the constitution itself.” (Quoting Eckles
v. State of Oregon,
306 Or 380, 399,
760 P2d 846 (1988), cert
dismissed,
490 US 1032 (1989)).
C. Synthesized Legal Framework
From the foregoing, the question we must address
in this case is whether the enacting body—here, the people of Oregon—enacted a reasonable regulation governing
8
Similarly, in Hirsch/Friend the court stated:
“First, when the drafters of the Oregon Constitution adopted and approved
the wording of Article I, section 27, they did not intend to deprive the legislature of the authority to restrict arms possession (and manner of possession)
to the extent that such regulation of arms is necessary to protect the public
safety. Second, and more significantly for our purposes here, Article I, section
27, does not deprive the legislature of the authority (1) to designate certain
groups of persons as posing identifiable threats to the safety of the community by virtue of earlier commission of serious criminal conduct and, in accordance with such a designation, (2) to restrict the exercise of the constitutional
guarantee by members of those groups.”
338 Or at 677.
Cite as
338 Or App 556 (2025) 567
the possession and use of constitutionally protected arms in
order to promote public safety without unduly frustrating
the right to armed self-defense as guaranteed by Article I,
section 27. Christian,
354 Or at 33. In making that determination, we are addressing legal questions of the enacting body’s purpose and the reasonableness of the regulation to achieve that purpose—i.e., whether the regulation is
directed at and drafted to achieve the public-safety purpose.
If, as a legal matter, the measure is a reasonable regulation
to promote public safety, there is one remaining legal question: Is the right to armed self-defense unduly frustrated?
That question, in turn, is not answered by the use of a balancing test. Any constitutional limitation on a reasonable
regulation to promote public safety “must be found within
the language or history of the constitution itself.” Hirsch/
Friend,
338 Or at 639 (internal quotation marks omitted).
To be clear, a facial challenge under Article I, section 27, does not involve fact finding to answer those legal
questions. In particular, the legal inquiry is not aided by
a battle of the experts attempting to persuade a trier of
fact about whether a public-safety threat, in fact, exists
or whether a public-safety benefit, in fact, will be realized.
Despite those established parameters for a facial challenge
under Article I, section 27, and for reasons that are unclear
to us, the parties and the circuit court ended up treating
those legal issues as factual. As a result, we largely are not
aided in our work here by the record developed below or the
findings of fact that the circuit court made on that record.9
Guided by that legal framework, we turn to the text
of Measure 114 and whether, on its face, it is constitutional
under Article I, section 27.
III. ANALYSIS
As previously stated above, Measure 114 adds
three major components to the firearm regulatory scheme—
the permit-to-purchase program, the point-of-transfer
9
We recognize that expert witnesses on the history of firearms or the operation of modern-day firearms could be appropriate if such testimony aids the
court in addressing the legal issue of whether a particular weapon falls within
the protection of “arms” under Article I, section 27. However, as discussed below,
that is not an issue we ultimately reach in this opinion.
568 Arnold v. Kotek
background check, and the large-capacity magazine ban. We
address the facial constitutionality of those three changes in
the law under Article I, section 27.
A. Permit-to-Purchase Program and Point-of-Transfer
Background Check
As an initial matter, we note again that the circuit
court determined that the permit-to-purchase program and
the point-of-transfer background check were intertwined
and could not be analyzed separately under the severability clause of Measure 114. On appeal, the state argues that
the two parts of Measure 114 are severable and can be analyzed separately; and plaintiffs defend the circuit court’s
approach. We conclude that, whether considered together or
alone, both parts of Measure 114 are facially constitutional.
Consequently, we do not address the parties’ severability
arguments.
1. Text of sections 3 through 10 of Measure 114
Sections 3 through 10 of Measure 114 cover the permit-to-purchase program and point-of-transfer background
check, which are codified at ORS 166.503 to 166.508, and in
amendments to ORS 166.412, ORS 166.435, ORS 166.436,
and ORS 166.438. The permit-to-purchase program requires
that, to purchase any firearm, a person must apply for and
obtain a permit-to-purchase from the police chief or county
sheriff, or their designee, with jurisdiction over the person’s
residence (the permit agent). Measure 114, § 4(1)(a). The person must present that permit-to-purchase at the point-oftransfer for any firearm, whether the transfer is through
a licensed gun dealer, a gun show, or a private transfer.
Measure 114, §§ 6, 7, 8, 9. Measure 114 also amends existing law to require that a criminal background check must
be completed at the point-of-transfer of a firearm before the
firearm is transferred, whether through a gun dealer, gun
show, or private transfer. Prior to the enactment of Measure
114, the law required that a criminal background check be
requested from the Oregon State Police (OSP) but allowed
the transfer to occur if OSP did not respond within a certain
time. Under Measure 114, if the background check is not
approved, the firearm may not be transferred. Measure 114,
Cite as 338 Or App 556 (2025) 569
§ 6(3)(c), (14) (licensed gun dealers); Measure 114, § 7(3)(d)(B)
(private transfers); Measure 114, § 8(2), (3)(c) (gun shows).
For the permit-to-purchase program, the permit
agent is required to issue the permit-to-purchase to a person within 30 days of receiving an application “if the permit agent has verified the applicant’s identity and determined that the applicant has met each of the qualifications.”
Measure 114, § 4(3)(a). A person is qualified to be issued a
permit-to-purchase if the person (1) “[i]s not prohibited from
purchasing or acquiring a firearm under state or federal
law, including but not limited to successfully completing a
criminal background check as described under paragraph
(e) of this subsection”; (2) is not the subject of an extreme
risk protection order under ORS 166.525 to 166.543; (3) “[d]
oes 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 unlawful violence”;
(4) provides proof of completion of a firearm safety course;
and (5) pays the fee required by the permit agent, which cannot exceed $65. Measure 114, § 4(1)(b), (3)(b). Once issued, a
permit-to-purchase is valid for five years, as long as it is not
revoked, and can be renewed. Measure 114, § 4(7).
If the permit agent denies a permit or revokes a
previously issued permit, the permit agent must notify the
person in writing of the reasons for the denial or revocation. Measure 114, § 5(1), (3). A person who is denied a permit, is denied renewal of a permit, has a permit revoked,
or whose application is not acted upon within 30 days, may
petition the circuit court for review of the decision or inaction. Measure 114, § 5(1), (5), § 10. Those decisions can be
appealed to the Court of Appeals in the same manner as any
civil action. Measure 114, § 11.
2. Construction of Sections 3 to 10 of Measure 114
We first address a few issues of statutory construction in the circuit court’s opinion and raised by plaintiffs on
appeal. In construing a statute, we review for legal error
570 Arnold v. Kotek
and apply our usual methodology for interpreting statutes
to discern the intent of the enacting body—here, the people
of Oregon. State v. Gaines, 346 Or 160, 171-72,
206 P3d 1042
(2009). We primarily consider the text and context of the
statute and, when it is useful to our analysis, we will also
consider legislative history.
Id.
Plaintiffs assert, and the circuit court below agreed,
that the permit-to-purchase program will cause at least a
30-day delay in purchasing a firearm. We reject that assertion as untethered to the text of Measure 114. The plain text
of the measure requires the permit agent to act on the application within 30 days of receiving it—which also encompasses the time to get the background check—but nothing in
the measure prevents the permit agent from acting sooner
when qualifications are met. Measure 114, § 4(3)(a). In addition, it is only if the permit agent fails to fulfill the agent’s
statutorily required duty within the 30 days (or denies the
permit) that a permit applicant would need to seek relief
from the court. If judicial review is sought, the circuit court
reviews for “whether the petitioner meets the criteria that
are used for issuance of a permit-to-purchase and, if the
petitioner was denied a permit, whether the permit agent
has reasonable grounds for denial under subsection (2)” and
must make its decision within 15 judicial days “or as soon
as practical thereafter.” Measure 114, § 5(6), (8). Although
the circuit court in this case stated that the administrative
review “flip[s] the burden” to the applicant to prove they are
not dangerous in order to exercise their Article I, section 27,
right, the plain text of the measure does not do that. Both at
the administrative level and on judicial review, the burden
remains on the state actor to provide sufficient justification
to deny a permit-to-purchase as provided in the measure.
In addition, although the wording is not a picture of
clarity, nothing in Measure 114 requires cooperation from
the FBI to issue a permit-to-purchase. A “criminal background check” and “criminal history record check” are terms
defined under ORS 166.432 and they both mean “determining the eligibility of a person to purchase or possess a firearm by reviewing state and federal databases, including”
the five listed databases in the statute. Completion of that
Cite as 338 Or App 556 (2025) 571
statutorily defined criminal background check does not
require receiving information from the FBI. For purposes
of the permit-to-purchase, the measure requires OSP to
request that the FBI run a fingerprint criminal background
check and report any information received, but obtaining
that FBI information is not necessary to complete the statutory “criminal background check.” See Measure 114, § 4(1)(e)
(“The permit agent shall request the department to conduct
a criminal background check, including but not limited to
a fingerprint identification, through the Federal Bureau of
Investigation. … Upon completion of the criminal background check …, the department shall report the results,
including the outcome of the fingerprint-based criminal
background check, to the permit agent.”).
With that understanding of the plain text of
Measure 114, we proceed to the constitutional analysis.
3. Article I, section 27, analysis
As set out above, our task is to confront whether
Measure 114 is a reasonable regulation on the possession
or use of a weapon to promote public safety without unduly
frustrating the right to armed self-defense guaranteed by
Article I, section 27. Our analysis is “limited to whether the
[measure] is capable of constitutional application in any circumstance.” Christian, 354 Or at 40.
We first observe that the permit-to-purchase program and point-of-transfer background check is not a total
ban on obtaining firearms for self-defense. Persons who
meet the qualifications for a permit and do not have any disqualifying criminal convictions may obtain a firearm. See,
e.g., Christian, 354 Or at 34, 40-41 (rejecting a challenge to
an ordinance under Article I, section 27, and relying on the
fact that the ordinance was not a total ban on possessing a
loaded firearm for self-defense in a public place).
The preamble to Measure 114, which informs our
understanding of the legislative purpose for the people’s decision to enact the measure, Oregon Cable Telecommunications
v. Dept. of Rev., 237 Or App 628, 641,
240 P3d 1122 (2010),
sets out that the two programs are a specific legislative
response to identified public safety concerns. Specifically
572 Arnold v. Kotek
with respect to the permit-to-purchase and point-of-transfer
background check, the preamble states:
“Whereas the People of the State of Oregon have seen a
sharp increase in gun sales, gun violence, and raised fear
in Oregonians of armed intimidation, it is imperative to
enhance public health and safety in all communities; and
“Whereas the gun violence in Oregon and the United
States, resulting in horrific deaths and devastating injuries
due to mass shootings, homicides and suicides is unacceptable at any level, and the availability of firearms, including
semiautomatic assault rifles and pistols with accompanying large-capacity ammunition magazines, pose a grave
and immediate risk to the health, safety and well-being of
the citizens of this State, particularly our youth; and
“Whereas Oregon currently has no permit requirements for purchasing a semiautomatic assault firearm or
any other type of weapon and studies have shown that permits-to-purchase reduce firearm-related injuries and death
and studies further have shown that firearm ownership or
access to firearms triples the risk of suicide and doubles
the risk of homicide when compared to someone who does
not have access, this measure will require that anyone
purchasing a firearm must first complete a safety training course, successfully pass a full background check and,
only then, will an individual be granted a permit-to-purchase a firearm, so that firearms are kept out of dangerous
hands[.]”
Measure 114, preamble; see also Measure 114, § 2 (policy
statement that the regulation “will promote the public
health and safety of the residents of this state”).
We thus observe that sections 3 through 10 of
Measure 114 are a legislative response to identified public safety concerns stemming from dangerous individuals
obtaining firearms and the dangerous practice of individuals untrained in firearm safety obtaining firearms. That is
the type of legislative response that the drafters of Article I,
section 27, did not intend to prohibit. See Christian, 354 Or
at 31-33 (summarizing jurisprudence that explains that the
drafters of Article I, section 27, did not intend to prohibit
the legislature from enacting regulations that restrain dangerous practices or restrict possession by persons who pose
Cite as
338 Or App 556 (2025) 573
a threat to public safety); see also Hirsch/Friend,
338 Or at
679 (holding that Article I, section 27, does not prohibit the
legislature from “restrict[ing] the possession of arms by the
members of a group whose conduct demonstrates an identifiable threat to public safety”); cf. State v. H. N.,
330 Or App
482, 491,
545 P3d 186 (2024) (recognizing, in the context
of a challenge under the Second Amendment to the United
States Constitution, that “limitations on people with mental
disorders possessing firearms are in fact ‘longstanding’ ”).
The permit-to-purchase program and point-oftransfer background check “reflect[ ] a contemporary legislative response to identifiable threats to public safety” and
“a legislative determination that the risk of death or serious
injury to members of the public” is increased by the threat
posed by untrained and dangerous persons obtaining firearms. Christian, 354 Or at 34 (stating the same with respect
to a city ordinance prohibiting carrying loaded firearms in
public places without a concealed carry permit). The regulations chosen by the people to address those public safety
threats are reasonable because they are directed at and
drafted to address those identifiable threats. Both aspects
of Measure 114 directly seek to identify persons disqualified
to own or possess a firearm under state or federal law, to
identify dangerous persons who either are the subject of an
extreme risk protection order or have “ been or [are] reasonably likely to be a danger to self or others, or to the community at large” based on their psychological state or past conduct, and to ensure that persons seeking to obtain firearms
have completed a firearm safety course.
We also conclude that the permit-to-purchase
program and point-of-transfer background check do not
unduly frustrate the right guaranteed by Article I, section
27. Article I, section 27, does not provide an absolute right,
but a right to armed self-defense that is subject to the wide
latitude of the legislature “to enact specific regulations
restricting the possession and use of weapons to promote
public safety.” Christian, 354 Or at 33. We are not persuaded
that requiring a permit-to-purchase and passing a criminal background check—even if complying with those regulations causes a delay in obtaining a firearm—would render
574 Arnold v. Kotek
Measure 114 unconstitutional under all circumstances. To
the contrary, when the measure is executed as the text of
the measure contemplates, it will not unduly frustrate the
Article I, section 27, right to armed self-defense because
a qualified individual will be able to obtain a firearm for
the purposes of self-defense. Article I, section 27, does not
confer the right to obtain a firearm immediately in all circumstances; it is a right to defend oneself using constitutionally protected arms. We decline to engage in any speculation about how the measure might be executed in the
future and the effect that might have on any one individual’s Article I, section 27, right. Those questions can only be
explored through as-applied challenges that are not before
us, as plaintiffs’ complaint alleged a facial challenge and
the circuit court ruled that it would address only a facial
challenge, which is a ruling that plaintiffs do not challenge
on appeal. Plaintiffs have not pointed to anything “within
the language or history of the constitution itself,” Hirsch/
Friend,
338 Or at 639, that limits the people of Oregon from
enacting sections 3 through 10 of Measure 114, and we are
aware of none.
We conclude that sections 3 through 10 of Measure
114, which include the permit-to-purchase program and
point-of-transfer background check, are facially valid under
Article I, section 27.
B. Large-Capacity Magazine Ban
We next address the large-capacity magazine ban
in Measure 114.
1. Text of section 11 of Measure 114
Section 11 of Measure 114 is codified at ORS 166.355
and covers the ban on large-capacity magazines. The measure defines a large-capacity magazine as
“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 10 rounds of ammunition and allows a shooter to
Cite as 338 Or App 556 (2025) 575
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;
“(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.”
Measure 114, § 11(1)(d).
Measure 114 makes it a Class A misdemeanor to
manufacture, import, possess, use, purchase, sell, or otherwise transfer any large-capacity magazine in Oregon after
the effective date of the measure. Measure 114, § 11(2), (6).
There are exceptions to that ban for dealers and manufacturers to provide firearms to the United States Armed Forces
or a law enforcement agency and for “[a]ny government
officer, agent or employee, member of the Armed Forces of
the United States or peace officer … 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.”
Measure 114, § 11(4). The measure also provides that it is
an affirmative defense “to the unlawful possession, use and
transfer of a large-capacity magazine in this state by any
person” if the large-capacity magazine “was owned by the
person before the effective date of [the measure] and maintained in the person’s control or possession” or the person
acquired possession “by operation of law upon the death of
a former owner who was in legal possession of the large-capacity magazine” and as long as the owner only used the
large-capacity magazine in the manner and at the locations
authorized in the measure. Measure 114, § 11(5)(a) - (c). That
affirmative defense also applies when “[t]he person has permanently and voluntarily relinquished the large-capacity
magazine to law enforcement or to a buyback or turn-in
program approved by law enforcement, prior to commencement of prosecution by arrest, citation or a formal charge.”
Measure 114, § 11(5)(d).
576 Arnold v. Kotek
2. Article I, section 27, analysis
We reiterate that what we must confront is whether
the legislation is a reasonable regulation on the possession
or use of a weapon to promote public safety without unduly
frustrating the right to armed self-defense guaranteed by
Article I, section 27. Our analysis is “limited to whether the
[measure] is capable of constitutional application in any circumstance.” Christian, 354 Or at 40.
At the outset, we decline to address the state’s
argument that magazines are not “arms” constitutionally
protected under Article I, section 27. It is undisputed that
ammunition magazines are required for firearms to be operable. We do not think that it is appropriate to approach this
case by parceling out a firearm component from the firearm
itself in addressing the constitutionality of Measure 114. We
also do not think that the constitutionality of the ban should
be dependent upon whether large-capacity magazines and
firearms that could discharge multiple shots without reloading existed and were commonly used for self-defense at the
time Article I, section 27, was adopted. It is undisputed in
the historical record that limited, early forms of the technology did exist at that time, and we decline to base our constitutional analysis in this case on whether current forms
of the technology are constitutionally protected. But see
OSSA v. Multnomah County, 122 Or App 540, 548-49,
858
P2d 1315 (1993) (holding that a city ordinance restricting
possession of “assault weapons” in public was constitutional
because the semi-automatic firearms classified as assault
weapons were not constitutionally protected arms because
they derived from military weaponry and “mid-nineteenth
century repeating firearms used for self-defense … were
not in common use at the time”). We thus proceed based on
the assumption that large-capacity magazines are part of
constitutionally protected arms and use the same analytic
framework that we applied to the other sections of Measure
114.
We first observe that the large-capacity magazine
ban is not a ban on any particular type of firearm or constitutionally protected arm—it is a ban on possessing magazines that allow a firearm to discharge more than 10 rounds
Cite as 338 Or App 556 (2025) 577
without having to reload. We thus disagree with plaintiffs’
characterization of the regulation as a ban on the mere possession or use of nearly any firearm. From the text of the
measure, and legislative findings, we discern that the voters’ intent in enacting the measure is to regulate the manner of possession or use of firearms in that it restricts the
size of magazine that can be used with a firearm to make
it operable; it is not a restriction of the mere possession of
operable firearms themselves.10
10
We note that the circuit court concluded that most firearms were banned
by Measure 114 “because there is no effective way of limiting magazines to ten
rounds or less by permanently alter[ing] them and the magazines are readily
capable of alteration or changed to carry more than ten rounds within seconds.”
The court’s reasoning was based on its reading of the definition of “large-capacity magazine” in Measure 114, which includes a magazine that “can be readily
restored, changed, or converted to accept, more than 10 rounds of ammunition”
and that “permanently altered” means that “it is not capable, now or in the
future, of accepting more than 10 rounds of ammunition.”
We reject the circuit court’s line of reasoning for at least two reasons. First,
it does not demonstrate that Measure 114 is incapable of constitutional application in any circumstance. The facts found by the circuit court demonstrate
the ingenuity of persons trying to subvert manufacturer limits on magazines;
those facts do not demonstrate that most magazines holding 10 or fewer rounds
fall within the Measure 114 legal definition of large-capacity magazine, or, more
importantly, that Measure 114, on its face, bans most firearms themselves, when
the text of Measure 114 provides for no such ban on firearms. The reasoning
employed by the circuit court appears to be grounded in concerns of constitutional overbreadth, which asks whether “the statute in question prohibits constitutionally protected conduct of any kind.” Hirsch/Friend, 338 Or at 628. The
Supreme Court in Christian made clear that that kind of facial challenge is not
cognizable under Article I, section 27.
Second, we do not think the circuit court’s expansive reading of the definition of “large-capacity magazine” comports with the legislative intent of Measure
114, which was not intended to ban all magazines. Moreover, “readily restored,
changed, or converted to accept more than 10 rounds of ammunition” does not
necessarily encompass the types of modifications the circuit court relied on.
“Readily” is an adverb that encompasses both temporal and degree-of-difficulty
components. See Webster’s Third New Int’l Dictionary 1889 (unabridged ed 2002)
(defining “readily” to include “with fairly quick efficiency : without needless loss
of time : reasonably fast : speedily ” and “with a fair degree of ease : without much
difficulty : with facility : easily); see also State v. Briney, 345 Or 505, 516,
200
P3d 550 (2008) (construing “readily capable of use as a weapon” in former ORS
166.210(3) (2007) to mean “promptly able to be made so at the time that an individual is alleged to be unlawfully carrying it concealed” (emphasis in original)).
Whether individuals can subvert the law in the future by undoing alterations to
large-capacity magazines or by altering smaller-capacity magazines to hold more
than 10 rounds has no bearing on whether Measure 114 is constitutional on its
face. Whether any particular magazine in a prosecution for violation of Measure
114, section 11 meets the definition of large-capacity magazine and whether that
application of the law violates Article I, section 27, are questions that must be
explored on an as-applied basis.
578 Arnold v. Kotek
We also observe that the large-capacity magazine
ban is a contemporary legislative response to identified
public safety concerns stemming from the advancements
in technology and the availability of those advancements
to the public that have created observable threats to public
safety. The preamble to Measure 114 specifically states with
respect to large-capacity magazines:
“Whereas the People of the State of Oregon have seen a
sharp increase in gun sales, gun violence, and raised fear
in Oregonians of armed intimidation, it is imperative to
enhance public health and safety in all communities; and
“Whereas the gun violence in Oregon and the United
States, resulting in horrific deaths and devastating injuries
due to mass shootings, homicides and suicides is unacceptable at any level, and the availability of firearms, including
semiautomatic assault rifles and pistols with accompanying large-capacity ammunition magazines, pose a grave
and immediate risk to the health, safety and well-being of
the citizens of this State, particularly our youth; and
“…
“Whereas large-capacity magazines are often associated with semiautomatic assault rifles, and can also be
used with many semiautomatic firearms including shotguns and pistols, and estimates suggest that nearly 40%
of crime guns used in serious violent crimes, including
attacks on law enforcement officers, are equipped with
large-capacity magazines; and
“Whereas firearms equipped with large-capacity magazines increase casualties by allowing a shooter to continue firing for longer periods of time before reloading,
thus explaining their use in all 10 of the deadliest mass
shootings since 2009, and in mass shooting events from
2009 to 2018 where the use of large-capacity magazines
caused twice as many deaths and 14 times as many injuries, including the 2015 shooting at Umpqua Community
College in Roseburg, Oregon in which 10 people were killed
and 7 more were injured; and
“Whereas restrictions on high-capacity magazines
during the 10-year federal ban from 1994-2004 and the ban
in over nine (9) states and the District of Columbia have
been found to reduce the number of fatalities and injuries
Cite as 338 Or App 556 (2025) 579
in shooting incidents, this measure will enhance the safety
of residents, particularly children, of this state by prohibiting the manufacture, sale, or transfer of large-capacity
ammunition magazines and regulate the use of such magazines that are currently owned[.]”
Measure 114, preamble; see also Measure 114, § 2 (policy
statement).
By the findings contemplated by the people of
Oregon when it enacted Measure 114, the use of large-capacity magazines presents a clear public safety threat to
the welfare of the public because of the great increase in
capacity to cause death and injury when a person may fire
a firearm more than 10 times without having to reload. The
ban on large-capacity magazines is a reasonable regulation
directed at the specific, observable public safety concern
that the people of Oregon sought to address.
The ban also does not unduly frustrate the right to
armed self-defense guaranteed by Article I, section 27. In
so concluding, we emphasize that the right is one of armed
defense of person or property. Measure 114 does not affect
any individual’s Article I, section 27, right to use a firearm in defense of self or property. Measure 114 does limit
an individual’s ability to legally fire more than 10 rounds
of ammunition without reloading while doing so. That limitation does not unduly frustrate the Article I, section 27,
right. Plaintiffs assert that certain defensive scenarios benefit from the assistance of large-capacity magazines—most
notably in rural areas where law enforcement response
times are long, and livestock requires protection from predators. However, an individual’s desire to use a large-capacity
magazine for such purposes, instead of a capacity-compliant magazine, does not demonstrate that the large-capacity
magazine ban in Measure 114 is incapable of constitutional
application. Article I, section 27, does not provide an absolute right, but a right to armed self-defense that is subject
to the wide latitude of the legislature “to enact specific regulations restricting the possession and use of weapons to
promote public safety.” Christian, 354 Or at 33.
We also reject the argument that allowing an affirmative defense to a prosecution for unlawful possession,
580 Arnold v. Kotek
use, or transfer of a large-capacity magazine renders the
measure unconstitutional. How the use of the affirmative defense may play out in any particular prosecution
and whether the prosecution would violate the individual’s right under Article I, section 27, is a question that can
be answered only in an as-applied challenge, which is not
before us on plaintiffs’ facial challenge. We conclude that
section 11 of Measure 114 does not unduly frustrate the
right to armed self-defense that is guaranteed in Article I,
section 27. Plaintiffs have not pointed to anything “within
the language or history of the constitution itself,” Hirsch/
Friend, 338 Or at 639, that limits the people of Oregon from
enacting section 11 of Measure 114, and we are aware of
none.
We conclude that section 11 of Measure 114, which
covers the large-capacity magazine ban, is facially valid
under Article I, section 27.
III. CONCLUSION
In sum, we hold that all of Ballot Measure 114
(2022) is facially valid under Article I, section 27, because
the law is capable of constitutional application. Christian,
354 Or at 40. We reverse both the general judgment and
the supplemental judgment. We remand to the circuit court
for the limited purposes of entering a declaratory judgment
consistent with this opinion and determining whether the
state is entitled to fees or costs.
Reversed and remanded.
