Attorney Breaks Down Issues With Oregon’s Measure 114

Attorney, and friend of the show Ryan Crandall, the co-founder of estate planning service, ELegacy Law joined Lars to breakdown some of the nuts and bolts of the newly passed Measure 114 in Oregon. You can read the details they covered below:

Highlights

• The new law will go into effect on Jan. 15, 2023, which is 30 days from certification of the election results.
• This law represents possibly the most restrictive gun legislation in US history.
• Appears to have passed by 50.9% of vote, just over 30K votes.
• The initiative bans the use, possession, manufacturing, and transfer of “large-capacity” ammunition magazines. It also creates a permit-to-purchase requirement for all new purchases or transfers. Lastly, it would create a government registry of all individuals who apply for a permit to purchase or transfer.

Magazine restrictions

• The law defines “Large Capacity Magazines” as magazines capable of carrying more than 10-rounds.
  • As you and your listeners know, many (if not most) popular handguns used for self defense have magazine capacities of more than 10 rds.
  • Also, most shotguns are capable of accepting more than 10 “mini rounds” that are commonly used for self defense, which would subject regular shotguns to this prohibition as well.
• Large-capacity magazines owned before the effective date are grandfathered in . . . kind of.  I say “kind of” because the initiative doesn’t state that it is legal to possess a large capacity magazine that was purchased before Jan. 15^th, it says it shall be an affirmative defense to a potential violation of the new law.  This is an important distinction because it places the burden of proof on the gun owner.  In other words, if they are found in possession of a large capacity magazine after Jan. 15, they will be presumed guilty unless they can affirmatively prove that they owned the magazine before that date.
• Moreover, magazines that are grandfathered in may be possessed by the owner but only in select locations: on the owner’s private property, at a shooting range, while engaged in hunting or sport shooting, or when travelling to or from such an activity. If such a magazine is transported off private property, it must be removed from the firearm and stored separately. This effectively prevents magazines of 10+ rds. from being used outside of the home for self-defense.
• A large-capacity magazine/firearm may only be transferred to another person at the death of the original owner.  There is no way to legally transfer these items to another person during your lifetime, even to close family members.  Presumably, this includes transfers to a gun trust as well.
• Although many sheriffs have already stated that they will not enforce this law in their jurisdiction, in theory, law enforcement could seek out owners with large capacity magazines at places like public gun ranges and require proof that the item was acquired before Jan. 15, 2022.

Permit-to-Purchase

• The initiative would also require a permit to purchase or transfer any firearm.
  • “Transfer” includes: sale, gift, loan, or lease.
  • There are exceptions for transfers to close family members like children, siblings, partners and spouses.
• The permit could only be issued by law enforcement (local police chief or county sheriff) after a full criminal background check (including photographing the applicant and fingerprinting, which would be submitted to the FBI).
  • Previously, State and Federal law allowed the transfer of a firearm if the state police failed to complete a background check in 3 business days.  This measure removes that safeguard, which means an applicant could theoretically wait forever to purchase a firearm.
• The permit must be renewed every 5 years for a fee.
• There is no exception for law enforcement or military personnel purchasing firearms for personal use.
• Issuance of a permit also requires completion of classroom and live-fire training offered only by law enforcement certified instructors. But nothing in the initiative requires law enforcement agencies to actually offer these classes.
  • This is a potentially huge issue that is not directly addressed by the new law. Law enforcement is already understaffed, so it is unclear where the resources will come from to provide this extensive training. Manpower and facilities for providing this training are huge hurdles. The measure does not provide any funding for these costs, which the Oregon State Sheriff’s Association estimate would cost almost $40M annually to run.
  • Technically, you must complete the live fire training before you can even apply.  For first time gun buyers, this could be difficult to find a gun to use for such training.
• From a purely practical standpoint, it is likely that the implementation of this law will completely halt all gun sales in the State of Oregon for years.

Gun Registry

• The initiative creates a governmental registry for all individuals who apply for a permit to purchase or transfer.
• This database would include the applicant’s legal name, current address and telephone number, date and place of birth, physical description, fingerprints, photos, and any other additional information determined necessary by law enforcement.  The catch-all “any other additional information” opens this up to potential abuse by a local permitting agent.

Recommendations to Gun Owners

• If considering a purchase of a large capacity firearm or magazine, don’t wait until Christmas.  Purchase them before the Jan. 15^th start date.
• Gun owners should immediately create a private record of all their large capacity magazines/firearms and the dates they were acquired.  Original receipts or other proof of purchase would be best.  Photos with a time stamp would be a good idea as well.  Having this documentation in place will make it easier to defend against an alleged violation.
• Consider establishing a gun trust prior to Jan. 15th.  Measure 114 is silent on the treatment of gun trusts, so some of this remains unsettled. But, traditionally, one of the benefits of owning firearms in a trust is that trusts can be designed to continue for multiple generations, in which case there is no actual “transfer” at the death of the original owner, there is merely a change in trustees and beneficiaries. If gun owners wish to take advantage of these potential benefits, they should create a gun trust before Jan. 15^th, since it may not be possible to transfer large-capacity items to a trust after that date.          
• Owners should get behind groups that will be challenging the measure in court.  There’s a strong chance that many, if not all, of the main provisions of the law will be found unconstitutional.

Final Thoughts

• I would think that the permit-to-purchase and gun registry provisions are the most likely to be struck down.
• There’s a good chance that the magazine restriction is upheld (at least until the SCOTUS takes up this issue), considering that 12 other states already have similar restrictions in place.

The passage of this measure illustrates the potential dangers of the ballot initiative process, where a simple majority is able to restrict constitutional rights of a large minority. The Constitution generally protects against the “tyranny of the majority,” but state ballot initiatives like these seem to impose just that.

Ryan Crandall, J.D.
Attorney & Co-Founder

ELegacy Law