The Judge Said What?

B.L.U.F.A District Court judge decides that it isn’t law that is being questioned but facts.

In the Beginning

Finding that this case implicates important and unsettled questions of law, this Court exercises its discretion to deny both Defendants’ and Plaintiffs’ motions. This Court additionally finds that the record contains genuine disputes of material fact, which would benefit from full development through trial. Accordingly, Defendants’ and Plaintiffs’ Motions are DENIED.
Oregon Firearms Federation, Inc. v. Brown, No. 2:22-cv-01815, slip op. at 2–3 (D. Or.)

The key takeaway is genuine disputes of material fact. Post Bruen there is no real material fact to be determined with regard to presumptively protected conduct. This case is a challenge to Oregon’s measure 114, which contains a LCM ban.


Part of this is language is designed to allow the court to deny a summary judgement. The court shall grant summary judgement if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgement as a matter of law.Rule 56. Summary Judgment, LII / Legal Information Institute, (last visited Jun. 1, 2023). This means that if the court says there are material facts to be discovered at trial, then no summary judgement can be given. Thus, the language above.

I hate that we keep hearing this Bruen dispensed with the two-step, means-end test to assess the constitutionality of firearms regulations followed by courts in the wake of District of Columbia v. Heller, Instead, Bruen creates a different two-step analysis, one rooted in the “Nation’s historical tradition of firearm regulation.”Order O.F.F. v Brown ECF No. 216, No. 2:22-cv-01815, slip op. at 4 It isn’t a replacement for the old means-end two-step shuffle.

Heller clearly said that it was text, history and tradition that determined if a law was constitutional. The state and the courts then changed that to be “or if the state has a (good?) reason.”.

Here we get that magic word game If a court finds that the conduct at issue is covered by the plain text of the Second Amendment—which includes finding that the weapon in question is “in common use today for self-defense”id.. This is not what was actually said.

None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, nor Presser v. Illinois, refutes the individual-rights interpretation. United States v. Miller, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 2812 – 2816.
District of Columbia v. Heller, 467 U.S. 837, 2786 (2008)

“In common use for lawful purposes” is not the same as “in common uses for self-defensive.

Here is where the courts are getting this “for self-defense”:

It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. See Heller, 554 U.S. at 580, 128 S.Ct. 2783. Nor does any party dispute that handguns are weapons “in common use” today for self-defense. See id., at 627, 128 S.Ct. 2783; see also Caetano, 577 U.S. at 411-412, 136 S.Ct. 1027. We therefore turn to whether the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense.
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, 2134 (U.S. 2022)

Here, the Bruen Court is saying what the conduct is that the petitioners (good guys) want to do. This is not a limit on what they are allowed to do, it is a statement of what they want to do.

“Is it ok if I walk to the beach?” “Yes”. This does not mean that I can only walk to the beach.

The court, in this case, is claiming that it is an “only” this act that is protected.

Plaintiffs, in their Motion for Summary Judgment, argue that if this Court finds that LCMs are in common use for lawful purposes today, this Court should end its analysis and need not inquire into whether the challenged regulations are “consistent with the historical tradition of firearm regulation.” ECF 165 at 38. Citing to Bruen’s observation that “the traditions of the American people … demand[] our unqualified deference,” Bruen, 142 S. Ct. at 2131, Plaintiffs argue that “the tradition … that law-abiding citizens may keep and bear arms that are commonly possessed for self-defense … forecloses the state’s effort to ban these commonly possessed arms.” ECF 165 at 38.2 Under Plaintiffs’ formulation, a court need not consider historical evidence in considering any regulation on commonly used firearms, ECF 165 at 38; see also ECF 161 at 17.
Order O.F.F. v Brown ECF No. 216, No. 2:22-cv-01815, slip op. at 4–5

The plaintiffs (good guys), have it right here. Once an arm is found to be in common use for lawful purposes, the question is answered. Any regulation that bans/limits access to that arm is unconstitutional.

This Court disagrees with Plaintiffs’ interpretation. As the Supreme Court made clear in Bruen, “when 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.” 142 S. Ct. at 2126. (emphasis added). Thus, while a finding that the use of a certain firearm is covered by the Second Amendment—which includes a finding that the firearm is in common use for self-defense—creates a presumption of constitutionality under Bruen, that presumption can be overcome if the government affirmatively demonstrates that the challenged regulation is consistent with history and tradition.
id. at 5–6

And more of the same …


This court is attempting to turn Bruen on its head. Under Bruen, once the conduct implicates the plain text of the Second Amendment, that conduct is presumptively protected. The state must then offer history and tradition to justify their current regulations.

On the other hand, if the conduct being regulated is a ban, the court need not go any further. Only arms that are dangerous and unusualBruen, 142 S.Ct. at 2119 can be banned. If an arm is in common use for lawful purposes, it is by definition not “unusual”.

The only questions that the court needed to answer are simple:

  • Are magazines arms? Yes
  • Does the regulation impose a ban? Yes.
  • Are they in common use? Yes.

And with that, the summary judgement should have been granted.


District of Columbia v. Heller, 467 U.S. 837 (2008)
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
Oregon Firearms Federation, Inc. v. Brown, No. 2:22-cv-01815 (D. Or.)
Rule 56. Summary Judgment, LII / Legal Information Institute, (last visited Jun. 1, 2023)

This is my first article using my new citation engines. It looks ok, there are some things that I still have to explore. I’m bothered that I don’t have good “short cites” in all situations. On the other hand, I noticed that the short reference to Bruen worked exactly like it was supposed to.

I also need to look into how other pages are cited. I think part of the problem is that I don’t have the correct data in my citation system.

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By awa

2 thoughts on “O.F.F. v. Brown, Order denying Preliminary Injunction and Summary Judgement”
  1. These citations are great! I am sure it will help me organize and collect proof when someone asks me for a source and I have to try and remember where I got some factoid or story.

    The court really with do a Olympic level gymnast routine to twist things.

  2. I’m pretty damn tired of activist judges twisting the language of the Supreme Court to ‘justify’ their continued infringements.

Only one rule: Don't be a dick.

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