The Judge Said What?

B.L.U.F. An analysis of the horrible opinion out of Oregon where the district Judge decided that arms aren’t covered under the Second Amendment and that there is a history and tradition of requiring government approval before you can exercise your Second Amendment protected rights.

This opinion is 122 pages long. This is not a complete analysis. I don’t think I can stomach that much muck.

Inserted a title and added a “more” block to take the text-wall off the front page

When I originally looked at Judge Karin Immergut, I was hoping for better from her. She was appointed by President Trump. Unfortunately, it appears that her time in liberal cesspools has corrupted her judgement. She has degrees from the University of California, Berkeley, Amherst College, and UC Berkeley School of Law. To say that she was educated in leftest incubator schools is a fair statement.

The Question

Before this Court are two core questions: (1) can the State of Oregon limit the number of bullets to ten, that a law-abiding citizen can fire without reloading; and (2) can the State of Oregon require firearm purchasers to obtain a permit, which imposes various requirements, including a completed background check, safety training, and consideration of mental health status, before purchasing a firearm. After a weeklong bench trial, this Court concludes that the answer to each of these questions is yes. Accordingly, Oregon Ballot Measure 114 is constitutional.
Oregon Firearms Federation, Inc. v. Brown, No. 2:22-cv-01815, slip op. at 6 (D. Or. Jul. 14, 2023)

This is a horrible statement of the actual questions in the case. 1) Is banning ammunition feeding devices based on characteristics in violation of the Second Amendment protected rights? 2) Is requiring a member of The People to get state approval before they are allowed to purchase constitutional?

Even with her horrid wording, she should not have been able to find that BM114 is constitutional.


As explained below, Plaintiffs have not shown that the Second Amendment protects large-capacity magazines, defined as magazines capable of firing eleven or more rounds without reloading.

I’ll use the words of Paul Clement et al.:

Just last year, the Supreme Court confirmed once and for all that “the Second Amendment protects the possession and use of weapons that are ‘in common use.’” N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S.Ct. 2111, 2128 (2022) (quoting District of Columbia v. Heller, 554 U.S. 570, 627 (2008)). Rather than respect that clear teaching, Rhode Island veered far in the opposite direction, banning all devices that feed ammunition into semiautomatic firearms and are “capable of holding … more than ten (10) rounds,” R.I. Gen. Laws §11-47.1-2(2), -3(b)(1)(i), even though tens of millions of Americans own hundreds of millions of those devices as integral components of the firearms they keep and bear for self-defense. Under a straightforward application of Bruen, HB6614 is profoundly out of step with our nation’s history of firearm regulation and a violation of the Second Amendment.
Ocean State Tactical, LLC v. State of Rhode Island, No. 23-1072, slip op. at 1 (Court of Appeals for the First Circuit)

She even messes up Supreme Court dicta This Court also finds that the text of Oregon’s permit-to-purchase framework is consistent with the type of regulation that the United States Supreme Court has deemed constitutional under the Second AmendmentO.F.F. v. Brown, ECF No.252, Opinion, No. 2:22-cv-01815, slip op. at 6. The Supreme Court never said that any permitting scheme is constitutional, only that shall issue states are assumed to be constitutional.

The court then went forth and said, “If you get a 2A case, look to the plain text, history and tradition to make your ruling. That means …”

We should not have been surprised because she granted Oregon Alliance for Gun Safety’s motion to intervene based on Federal Rule 24 of Civil Procedures, 24(b).

(b) Permissive Intervention.
(1) In General. On timely motion, the court may permit anyone to intervene who:
(A) is given a conditional right to intervene by a federal statute; or
(B) has a claim or defense that shares with the main action a common question of law or fact.
Rule 24. Intervention, LII / Legal Information Institute, (last visited Jul. 16, 2023)

I believe that she is referring to 24(b)1(B) has a claim or defense that shares with the main action a common question of law or fact the Oregon Alliance for Gun Safety is an anti-gun group that uses emotional blackmail constantly.

The transcripts of the bench trial are not yet available. Because they are not available, the following are just observations. During the trial, the court heard from twenty witnesses. The plaintiffs (good guys) asked the court to include 13 additional documents.

They were denied. The reason given by the judge was that the documents were written by individuals that were not witnesses at the trial. As such, they can be excluded a Hearsay.

Rule 802. The Rule Against Hearsay
Hearsay is not admissible unless any of the following provides otherwise:

  • a federal statute;
  • these rules; or
  • other rules prescribed by the Supreme Court.
Federal Rules of Evidence 17 (U.S. 2020)

Why doesn’t the court want these documents? It might have something to do with this:

The legislative fact exhibits offered by Plaintiffs address factual questions that this Court must answer, including the commonality of LCMs, their use by ordinary citizens, and the relevancy of certain historical firearms regulations.
O.F.F. v. Brown, ECF No.252, Opinion, No. 2:22-cv-01815, slip op., n. 2

This is likely the core of her findings and conclusion. Individuals writing documents are how they express their research. It is how they express the facts, as they know them. They can also include opinions in those documents. When a court decides which documents they allow in as “evidence”, they are stacking the results.

If the documents submitted show every indication that magazines are arms protected by the Second Amendment, and that this is a ban on such arms, then Heller is the controlling case law. If an arm is in common use for lawful purposes, it is protected. FULL STOP.

The only question that remains, in that case, is to determine if the item is in common use. Caetano sets the highest threshold for “in common use” at hundreds of thousands. There was no discussion about how often stun guns were deployed. The Supreme court found that possessing a stun gun meant it was in use.

If the documents excluded showed “in common use today”, then the magazine ban fails. This judge does not want that.

In arriving at this interpretation, the Supreme Court emphasized “the inherent right of self-defense” as “central to the Second Amendment right.”id. at 10 Did the Supreme court “emphasize” that self-defense is central to the Second Amendment? If they did, does it matter?

Here, on page 10, we know we are going to lose The Supreme Court explicitly cautioned, however, that “[l]ike most rights, the right secured by the Second Amendment is not unlimited” and noted that the Second Amendment does not protect a right “to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626id. at 11. Any time the state brings up this quote from Heller you are about to hear how come their current infringement is in the allowed category.

The court describes what Bruen means to her:

… To determine whether the conduct at issue is covered by the plain text of the Second Amendment, a court must determine whether the weapon in question is a “bearable arm” that is “in common use today for self-defense.” Id. at 2132, 2134 (internal quotation marks omitted). If the weapon is in common use today for self-defense, then the Constitution presumptively protects that conduct. Id. at 2128, 2134, 2135. Under Bruen’s second step, the government must then affirmatively prove that the challenged regulation is consistent with the historical tradition of firearm regulation. See id. at 2130.

Bruen also made clear that “the right secured by the Second Amendment is not unlimited,” and that governments may still impose certain restrictions on the purchase, possession, and use of firearms. Id. at 2128 (citation omitted); see also id. at 2162 (Kavanaugh, J., concurring) (“[T]he Second Amendment allows a ‘variety’ of gun regulations,” including “presumptively lawful regulatory measures” such as laws prohibiting the keeping and carrying of “dangerous and unusual weapons.”) (citation omitted).
id. at 12–13

The question of bearable arm is easy to determine. Is it an arm? Yes. Can you lug it around? Yes? Then it is a bearable arm. Notice the use of the word “lug” instead of carry. This is because it is pretty clear that even large weapons that require support to be fired are protected under the Second Amendment.

I guess that is backwards from the rogue court’s point of view. I look at it and say, “Is it an “arm”?” using simple, plain text. If it is an “arm” is it or should it be protected under the Second Amendment? If yes, then it is a bearable arm.

We know that the Second Amendment covered cannons. We know this because there were private ships that mounted cannon. The majority of cannons were owned by individuals. There are many invoices from the 1700s where individuals purchased cannons.

This feels like I am reading one of the state’s briefs. Every one of the half dozen phrases out of the Heller, McDonald, and Bruen opinions that didn’t totally shut down the state are used over and over again.

One of the statements used by doctors when they subscribe medications for mental issues is something like “There are some people who just don’t make the right chemicals. You could be one of them. This medication might just make up for that shortage.” What the doctor is unlikely to tell the new patent is that nearly 100% of the people told this believe they are part of the 3% who actually have the issue.

Every regulation the state proposes is unlikely to be the “exception” that allows them to infringe on Second Amendment protected rights.

In describing BM 114’s restriction on magazines, the quoted language says that some of my lever action rifles are banned for having an internal magazine that holds more than 10 rounds.

BM 114 makes it a misdemeanor offense to manufacture, import, possess, use, purchase, sell, or otherwise transfer any LCM in Oregon after BM 114 goes into effect. Ex. 1 § 11(2), (6). BM 114 defines LCMs as “a fixed or detachable magazine … or similar device … that has an overall capacity of, or that can be readily restored, changed, or converted to accept, more than [ten] rounds of ammunition and allows a shooter to keep firing without having to pause to reload ….” Id. § 11(d).
id. at 15

Tell me you know nothing about firearms without saying you are ignorant:

Bruen, a court must first consider whether the plain text of the Second Amendment covers the regulated conduct. 142 S. Ct. at 2126. Because the regulated conduct at issue in this case is the ability to keep and bear LCMs, this Court received evidence regarding how magazines, and LCMs specifically, operate. Based on that evidence this Court finds as follows: A magazine is a device that contains and facilitates the feeding of ammunition cartridges into a firearm. Trial Transcript (“Tr.”) 6/6/2023 523:5–7. A magazine is a rectangular box generally made of steel, though magazines can also be made from plastic, polymer, or other materials. Tr. 5/30/2023 43:21–44:2; Tr. 6/5/2023 118:14–15. The bottom of the magazine is called the floor plate. Tr. 5/30/2023 43:24. Inside the magazine is a carrier that sits atop a spring. Tr. 5/30/2023 43:25–44:1. When the magazine is loaded with bullet cartridges, the spring is compressed. Tr. 5/30/2023 44:3–4. When an individual fires a modern semi-automatic firearm, the top portion of a firearm—known as the slide—is driven back by recoil force. Tr. 5/30/2023 44:4–5. An extractor inside of the gun catches the rim of the spent shell casing, pulling it backwards and striking a stud known as an ejector, which in turn kicks the spent shell casing out of the firearm’s ejection port. Tr. 5/30/2023 44:6–10. With the slide now completely moved to the rear of the firearm, the spring-loaded magazine pushes the next cartridge towards the top of the magazine’s box. Tr. 5/30/2023 44:11–12. A recoil spring, located parallel to and underneath
the barrel of the firearm, moves the slide forward. Tr. 5/30/2023 44:13–15. As the slide moves forward, it picks up the cartridge that has been pushed to the top of the magazine box and places it in the firing chamber. Tr. 5/30/2023 44:15–16. With a new round now chambered, the operator of the firearm can resume shooting. Tr. 5/30/2023 44:16–17.
id. at 20

She describes the function of a pistol. While recoil operates most semi-auto pistols, gas operates a great many semi-automatic rifles.

She also discusses a magazine being a “box.” What she doesn’t say is “ammunition feeding device”. We have to hammer that home moving forward. It isn’t a “LCM”, it isn’t even a “standard capacity magazine”, it is an “ammunition feeding device, an arm”.

She messes up again:

Under Bruen, a court must consider whether a regulated firearm or firearm accessory is “in common use today for self-defense.” Bruen, 142 S. Ct. at 2134 (internal quotation marks omitted). Accordingly, this Court received evidence at trial regarding the commonality of LCMs among U.S. civilians. Based on that evidence, this Court now as finds follows: LCMs first achieved commercial success in the U.S. civilian market in the 1980s. Tr. 6/5/2023 131:13–21. In 1954, only two models of firearms available in the civilian marketplace were sold with factory-issued LCMs, which accounted for 0.7 percent of firearms sold. Tr. 6/6/2023 408:18–21; Ex. 565.16 In 1964, 0.6 percent of all firearm models available in the civilian marketplace were sold with factory-issued LCMs. Tr. 6/6/2023 408:22–25; Ex. 565. In 1974, 1.7 percent of all firearm models available in the civilian marketplace were sold with factory-issued LCMs. Tr. 6/6/2023 409:1–2; Ex. 565. In 1984, 5.4 percent of all firearm models available in the civilian marketplace were sold with factory-issued LCMs. Tr. 6/6/2023 409:3–4; Ex. 565. And, in 1994, 7.2 percent of all firearm models available in the civilian marketplace were sold with factory-issued LCMs. Tr. 6/6/2023 409:4–7; Ex. 565. In 1994, Congress passed the Federal Assault Weapons Ban, which capped the maximum capacity for detachable magazines at ten rounds. Tr. 6/6/2023 525:21–526:7; see also Pub. L. No. 103-322, § 110103(b), 108 Stat. 1999 (1994). The Federal Assault Weapons Ban expired in 2004. Tr. 6/6/2023 405:22–23.
id. at 21–22

She uses this throwaway phrase regulated firearm or firearm accessory. That is not what the Second Amendment says. It says the right of the people to keep and bear arms shall not be infringed. She is admitting that ammunition feeding devices are arms. If they are not, then she wouldn’t have used this phrase.

End of this part. Having made it through only a small portion of the facts and findings, I’m pretty disgusted. She appears to be putting her thumb on the scales of justice by picking which facts she accepts, which experts she allows, which witnesses she believes.

I’m stopping at the point where she is dismissing the plaintiffs’ evidence that there are 100s of millions of ammunition feeding devices capable of holding more than 10 rounds. She says this is because the survey used didn’t get enough samples.

Never mind the fact that she stated just a few paragraphs earlier that she is allowing into evidence Millions of Americans today own at 23.

These numbers make it absolutely unequivocal that ammunition feeding devices holding more than 10 rounds are in common use for lawful purposes, such as self-defense.


Federal Rules of Evidence (U.S. 2020)
Oregon Firearms Federation, Inc. v. Brown, No. 2:22-cv-01815 (D. Or. Jul. 14, 2023)
Ocean State Tactical, LLC v. State of Rhode Island, No. 23-1072 (Court of Appeals for the First Circuit)
Rule 24. Intervention, LII / Legal Information Institute, (last visited Jul. 16, 2023)
Spread the love

By awa

2 thoughts on “Oregon Firearms Federation, Inc. v. Brown, Judges Opinion”
  1. Judges are supposed to be ‘influenced’ by the context of the writers of the law. Learning historical context therefore is essential to being influenced as the original writers intended when they worded the law. Today what percentage of judges throughout the nation believe in that manner or method of interpretation? I believe that percentage is decreasing rapidly. When judges essentially act, as if the manner by which they determine the meaning of a law, equates to, “Well, you can’t see it that way from my house because it’s too far away, so I reject your view of it.” all The People have left is….war. The judges are corrupt in the historical sense as determined by The People. We must use the Second Amendment against them, in fair play.
    awa, thanks for your willing sacrifice of your time, money and energy. Because you publish the truth from the original historical context which has stood the test of time, I am stronger due to that incredible effort. Thank You!

Only one rule: Don't be a dick.

This site uses Akismet to reduce spam. Learn how your comment data is processed.