A state attorney on Tuesday urged the Oregon Court of Appeals to allow voter-approved gun control. Measurement 114 go into effect, arguing that its regulations promote public safety without “unduly” restricting an Oregon resident’s right to bear arms for self-defense.

Deputy Attorney General Robert A. Koch said a state judge’s findings blocking the measure as unconstitutional are “far off base” and have “no basis in Oregon law.”

Attorney Tony L. Aiello Jr., who represents gun rights advocates who challenged the measure, argued that Harney County Circuit Judge Robert S. Raschio made the correct decision because the measure “unfairly regulates ” to all Oregonians without first determining whether they are dangerous or unfit to purchase a gun.

For almost 40 minutes of oral argumentsA three-judge panel of the appeals court asked what standard it should use to decide whether the measure conforms to the state constitution.

Measure 114 was approved in November 2022 with 50.7% of the state vote. Limits gun magazine capacity to 10 rounds or less, requires a permit to purchase a gun, and closes the so-called “Charleston loophole” by requiring completion, not just initiation, of a criminal background check to purchase or transfer a weapon

The week before the law went into effect on December 8, 2022, two Harney County gun owners filed a lawsuit challenging the permit requirement and charger limit. They were joined by Virginia-based Gun Owners of America Inc., a major lobbying group behind multiple gun control challenges across the country, and the Gun Owners Foundation, which supports legal actions in defense of the Second Amendment.

Raschio issued an emergency injunction blocking the measure from taking effect and subsequently held a trial on the merits of the lawsuit. Last November, found that its two main provisions requiring a permit to purchase a gun and banning large-capacity magazines violate the clause in the state constitution. protect the right to bear arms.

Raschio said the state did not demonstrate that any of the provisions would promote public safety despite arguments by state attorneys that the new regulations were intended to reduce mass shootings, suicides and homicides.

Koch told the appeals panel that it should not give deference to Raschio’s findings but rather decide for itself whether Measure 114’s language is constitutional under state law.

“You may consider any facts that you consider relevant to the legal issues before you,” he said. “Each of the three provisions (of the measure) is reasonable and apparently constitutional.”

Koch spent much of his time arguing that the Banning high-capacity chargers promotes public safety. by avoiding a barrage of gunfire like the Oct. 1, 2017, massacre in Las Vegas, the largest mass shooting in U.S. history, when a gunman opened fire on a music festival from his hotel suite.

“A single shooter fired more than 1,000 bullets into a crowd of concertgoers in the span of 11 minutes. In a span of 60 seconds, he fired 298 bullets, ultimately killing 58 and wounding more than 800,” he said. “Those are very different technologies, and military-type weaponry, like a modern high-capacity magazine, does not qualify for constitutional protection.”

“Virtually all” firearms will accept and work with a magazine capacity of 10 rounds or less, Koch said.

Appeals Judge Josephine H. Mooney noted that some weapons used in the Civil War were capable of firing more than one bullet at a time.

Koch responded that the size of a gun historically limited the number of bullets it could fire. In the 1850s, he said, pepper guns and Colt revolvers were most commonly used for self-defense and could hold between four and eight bullets. In Oregon, the most common weapon used for self-defense then, he said, was a single-shot flintlock rifle.

Modern high-capacity magazines generally evolved for military purposes and not for self-defense, he said.

Aiello said it is not the appeals court’s role to make new factual findings.

He argued that Measure 114 differs from other laws in that it is not “targeted at dangerous practices” or actions historically considered dangerous, such as firing a weapon in a public place or carrying a concealed weapon.

“The law must satisfy the purpose it is intended to promote, in this case, public safety,” he said.

Raschio concluded that was not the case, and the appeals court should do the same, he said.

Appeals Judge Kristina Hellman asked: “If “If we accept his position, then in any case the person seeking to defend a law enacted by the people would have to show that the law does what the people expected it to do.”

Aiello responded that that is not the position of gun rights advocates.

But Hellman asked: Isn’t the point of the permit purchasing a gun and completing a background check “to make sure that people who shouldn’t have firearms don’t have them?”

Aiello said the government can restrict guns only to certain people designated as dangerous or those involved in dangerous practices, such as convicted felons or people suffering from mental illness and who have been institutionalized.

He argued that Measure 114 is “aimed at all Oregonians” because it would require all people to apply for a permit and complete safety training before purchasing a gun.

“There is no Supreme Court case law or other case law that gives the people the authority to designate all Oregonians as inherently dangerous people,” Aiello said. “Basically, you are presumed unfit until you prove otherwise to the government.”

Mooney then asked: Doesn’t background checks, conducted before issuing a gun permit, serve to determine who should not have a gun?

Aiello said people who buy guns already face background checks under federal law and Measure 114 adds another one that must be completed before gun sales. The background check proposed by the measure is identical, except that it requires an FBI fingerprint verification, he said.

“This is a second background check. Prophylaxis on prophylaxis. “It’s unnecessary,” he said.

Under current federal law, firearms dealers can sell guns without a complete background check if the check takes more than three business days. That’s how the gunman in a mass shooting in Charleston, South Carolina, in 2015 bought his gun and killed nine people at a church.

Hellman asked why Aiello opposes closing Charleston’s so-called loophole, which requires a background check to be completed before the sale of a gun.

Aiello said the measure does not set a time limit for completing the check and does not offer any procedure to challenge a delay.

Koch reminded the court that the constitutional challenge is based on the text of the measure and not how it is applied. Aside from the case record, he said the court may consider the measure’s preamble and the voter’s pamphlet in making its decision.

He concluded by highlighting that more bullets in a magazine allow more shots to be fired and cause more destruction.

“The defining characteristic of a high-capacity magazine is the ability to fire more than 10 rounds without having to pause to reload in mass shooting events. That means more shootings, more injuries, more deaths,” Koch said.

“Restricting them reduces the number of shots fired, the number of injuries and deaths. We saw that in the Gabby Giffords shooting, in the Poway synagogue shooting and in Sandy Hook, where 11 first graders were able to hide or flee to safety because the shooter had to pause to reload,” he said. “That pause can save lives, and it was reasonable that Oregon voters decided to demand one here.”

Parishioners at the Chabad of Poway synagogue in a San Diego suburb in April 2019 confronted and chased a gunman after he emptied a 31-round magazine from an AR-15 rifle and before he could reload it in the sanctuary. One person was killed and two others were injured in the shooting.

During the 2021 Sandy Hook Elementary School shooting in Newton, Connecticut, nine first-grade students in a classroom were able to run out a door and two hid in a bathroom while the gunman reloaded. Those students survived. The 20-year-old gunman shot and killed 26 people: 20 children ages 6 and 7 and six adult staff members.

Former Arizona U.S. Rep. Gabby Giffords was shot in the head and wounded in a January 2011 attack that left six people dead.

Hellman, Mooney and Judge Darleen Ortega said they will take the case under consideration. They did not indicate when they would govern.

— Maxine Bernstein covers federal courts and criminal justice. Contact her at 503-221-8212, [email protected], follow her on @maxoregonianor in LinkedIn.

Our journalism needs your support. Subscribe today to OregonLive.com.