B.L.U.F. Trial is held, state asks for a Judgement

Recent History

On June 1, 2023, the judge revised his order and granted the defendants (bad guys) motion to dismiss as-applied challenges to Ballot Measure 114. The state argued, and the court found persuasive, that since the permitting provisions are not implemented yet, there is no violation. The plaintiffs (good guys) are allowed to refile once the permitting provisions are actually implemented.

There are two types of challenges, “as-applied” and “facial”

A facial challenge contends that a government law, rule, regulation, or policy is unconstitutional as written — that is, on its face. This challenge differs from an as-applied challenge in that it invalidates a law for everyone — not just as that law is applied to the particular litigant challenging it.
David L. Hudson Jr, Facial Challenges, (last visited Jun. 14, 2023)

The Court’s order says that there is no violation of the plaintiffs’ rights because nothing has happened. To use a different type of example, consider a suspect that is being interviewed regarding a crime. He asks for a lawyer, but the cops keep asking him questions.

There is no constitutionality issue regarding the police interviewing suspects. If the suspect challenges that there is a constitutional issue, it is only his rights that were violated, not yours, not mine. This would be an “as-applied” case.

As-applied cases normally do not have far-reaching implications. On the other hand, sometimes they do: —Miranda v. Arizona, 10 Ohio Misc. 9 (Supreme Court 1966)

The other side of the coin is the “facial” challenge. In a facial challenge, the entire law or regulation can be found to be unconstitutional. This is one of the issues the government is arguing in —United States v. Rahimi, 61 F. 4th 443 (5th Cir. 2023). Rahimi was convicted for being a prohibited person in possession of a firearm. He had a domestic violence restraining order against him, which made him a prohibited person.

Rahimi’s lawyers made a facial challenge against —Unlawful Acts, 18 U.S.C. § 922 sec. g (U.S. 1968). The 5th Cir. found for Rahimi. The state would like this to be an “as-applied” because that would mean it the ruling doesn’t extend to anybody else.

The Question

Are Oregon’s permitting provisions presumptively constitutional under Bruen?
Order at 3, Oregon Firearms Federation, et al. v. Tina Koteck, et al. ECF No.186, Order, No. 22-cv-01869 (District Court)
Do the permitting provisions constitute a “shall-issue” licensing regime, under which “a general desire for self-defense is sufficient to obtain a [permit]”?

The Bruen court explicitly said that they had not addressed “shall issue” licensing regimes. They went on to suggest that certain types of restrictions were allowed before a permit to carry was issued.

To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ “shall-issue” licensing regimes, under which “a general desire for self-defense is sufficient to obtain a [permit].” Drake v. Filko, 724 F.3d 426, 442 (CA3 2013) (Hardiman, J., dissenting). 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. District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, “law-abiding, responsible citizens.” Ibid. And they likewise appear to contain only “narrow, objective, and definite standards” guiding licensing officials, Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969), rather than requiring the “appraisal of facts, the exercise of judgment, and the formation of an opinion,” Cantwell v. Connecticut, 310 U.S. 296, 305, 60 S.Ct. 900, 84 L.Ed. 1213 (1940)—features that typify proper-cause standards like New York’s. That said because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, n. 9 (U.S. 2022)

The District Court did not misrepresent Bruen in their description of how to determine the question properly under consideration. This is good to see. The court could have attempted to find the wiggle room to perform a two-step shuffle. They did not.

Is the regulated conduct protected by the Second Amendment?
Order at 3, O.F.F. v. Brown, ECF No. 186, Order, No. 22-cv-01869

Yes, that is a good question.

Can Defendants demonstrate that the regulation is consistent with the historical tradition of firearm regulation?

The court has properly placed the burden on the state.

B. Count II: Permitting Provisions and the Fourteenth Amendment
1. Do BM 114’s permitting provisions violate Due Process?
a. Do the permitting provisions prevent Plaintiffs from exercising a fundamental constitutional right?
C. Count III: Large-Capacity Magazines (“LCMs”) and the Second Amendment
1. Are LCMs protected by the Second Amendment?
a. Are LCMs “bearable arms”?
b. Are LCMs in common use today for lawful purposes, centrally self-defense?
id. at 3,4

Here we see the court asking the right questions. Do the permitting provisions prevent Plaintiffs from exercising a fundamental constitutional right?id. at 3 The state is going to have an uphill battle on that question.

Unfortunately, we will have to see how the “are magazines protected bearable arms” question is answered in court.

While this might feel stupid, this is the right thing to do. Remember, the superior courts do not gather evidence. Instead, they examine the record to find the evidence that was presented. Consider the phrase “not in evidence”. This is a term of law that has escaped into the wild.

If somebody were to get up in court and say, “The 9x19mm is a more powerful cartridge than the 5.56x45mm.” that might not be accepted by the court as evidence.

In order for that statement to be considered evidence, the person making the claim would have to be an “expert” or they would have to have proof of the statement. If that person is not an expert and no proof is provided, then it is “not in evidence” that a 9 mm is more powerful than a 5.56.

The judge should ignore the statement when evaluating the question. A jury should also discount the statement, but a jury is more likely to still use the statement.

Here we are watching the Court making sure that different facts are entered into evidence. It is highly likely that there will be evidence given that magazines are magazines. That there are millions of magazines meeting the arbitrary criteria of “LCM” in Oregon, in common use throughout the United States.

With those facts in evidence, the 9th Circuit Court will not be able to claim that there is no “proof” that magazines are in common use.

The court also acknowledges the state’s attempt to redefine “in common use” to mean “in common use for self-defense.” The court states it correctly, “in common use for lawful purposes” before extending it to “centrally self-defense”. That last phrase isn’t a limit. It is not a requirement. It tells the state, “We see the word games you are playing, and we are not going to play that game.”

c. Do LCMs fall into a category of arms that are not protected by the Second Amendment?
i. Are LCMs “dangerous and unusual”?
id. at 4

Good news here as well. “Dangerous and unusual”. This means that the court is not falling for “it is so dangerous it can be banned.” It has to be both Dangerous and usual.

“[In Heller], we found it ‘fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons”’ that the Second Amendment protects the possession and use of weapons that are “in common use at the time.”’” Bruen, 142 S. Ct. at 2128 (quoting Heller, 554 U.S. at 627).

This is a great quote. The District Court is clearly saying that the Second Amendment protects arms that are in common use at the time. There was no wishy-washy language about “dangerous”. This is a loose for the State.

2. Can Defendants demonstrate that BM 114’s LCM restrictions are consistent with the historical tradition of firearm regulation?
“[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Id. at 2126.
id. at 4,5

“Presumptively protects that conduct”… The state will often ignore this or give it such a passing mention that it reads more like “presumptively protects that conduct BUT…” The court is having nothing of it.

Did LCMs or their analogues exist historically at the time of the Founding or Reconstruction, or does this case implicate “unprecedented societal concerns” or “dramatic technological changes”?
id. at 5

This is not a great question to have before the Court. If the court decides that detachable magazines represent a dramatic technological change then the Court will need to give the state more leeway in finding matching historical regulations. This is a serious concern to the Second Amendment Community.

Box magazines were not developed until the late 1800s. The Court could decide that this is a “dramatic technological change” over what was in existence in 1791. On the other hand, magazine development has been going on since the advent of the metallic cartridge.

The court could go either way. It is likely that the court will lean towards gun rights. There are also Supreme Court precedents that “ammunition” and “ammunition components” are protected arms. Unfortunately, I can’t find my citations to those opinions. Assume I’m wrong.

Is there a link between LCMs and mass shootings and, if so, do mass shootings present an “unprecedented societal concern[]” different from societal concerns at the time of the Founding or Reconstruction?
Bruen, 142 S.Ct. at 5

This question could go either way. The court could decide, at trial, that whether is a link between magazine capacity and mass shootings, the actions of another should not cost me my rights.

The court finishes with these questions:

D. Count IV: LCMs and the Fifth Amendment
1. Do BM 114’s restrictions on LCMs constitute a taking?
a. Is BM 114 a valid exercise of the state’s police power?
b. Does BM 114 constitute a physical taking?
c. Does BM 114 constitute a regulatory taking?
E. Count V: LCMs and the Fourteenth Amendment
1. Do BM 114’s restrictions on LCMs violate due process?
a. Are the LCM restrictions retroactive?
b. If the LCM restrictions are retroactive, do Defendants provide adequate justification?
F. Count VI: Large-Capacity Magazines and Vagueness
1. Are the LCM restrictions void for vagueness?
a. Do the LCM restrictions provide a person of ordinary intelligence fair notice of what is prohibited?
Order at 5,6, O.F.F. v. Brown, ECF No. 186, Order, No. 22-cv-01869

This is not a horrible set of questions for the Court to answer.

What’s happening now?

On June 5, 2023, the trial began. After 5 days, the trial was completed on the 12th.

There will be a rash of filings. We will not have access to the transcripts of the case for 90 days.

Judge Karin Immergut is a Trump appointee.

In quick research, most of her opinions are short. This case is unlike others she has presided over. We will have to wait and see what she has to say.

Regardless, this is a huge step forward.


Unlawful Acts, 18 U.S.C. (U.S. 1968)
Miranda v. Arizona, 10 Ohio Misc. 9 (Supreme Court 1966)
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
United States v. Rahimi, 61 F. 4th 443 (5th Cir. 2023)
Order, Oregon Firearms Federation, et al. v. Tina Koteck, et al. ECF No.186, Order, No. 22-cv-01869 (District Court)
David L. Hudson Jr, Facial Challenges, (last visited Jun. 14, 2023)

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