A Federal Judge Suggests That Oregon's 10-Round Magazine Limit Does Not Implicate the Second Amendment

The new ban, which has been blocked by a state judge, so far has fared better in federal court.

A state judge in Oregon this week issued a temporary restraining order (TRO) against the enforcement of new gun restrictions that were scheduled to take effect today. At issue is Measure 114, which Oregon voters narrowly approved last month. The initiative, which has provoked several lawsuits in state and federal court, requires permits to buy firearms and bans magazines that can hold more than 10 rounds.

The federal lawsuits argue that the 10-round magazine limit violates the Second Amendment. The cases are notable because they will provide an indication of how judges are apt to apply the constitutional test that the Supreme Court prescribed in New York State Rifle and Pistol Association v. Bruen, the June 23 decision that upheld the right to carry guns outside the home for self-defense.

So far the signs are not promising for those who hoped that Bruen would be a "wrecking ball to dismantle gun control laws nationwide." In response to lawsuits filed by the Oregon Firearms Federation and the Firearms Policy Coalition, a federal judge this week declined to issue a TRO against Measure 114, based on reasoning that seems designed to sabotage that wrecking ball.

The state lawsuit, which was filed by Gun Owners of America, has fared better in the early stages. It targets both the magazine limit and the purchase permit provision, which requires would-be gun owners to submit fingerprints and complete safety training as well as pass a criminal background check and authorizes the state police to deny permits to people they view as dangerous. Those new rules, the lawsuit argues, violate the Oregon Constitution's guarantee that "the people shall have the right to bear arms for the defence of themselves."

Harney County Circuit Court Judge Robert Raschio seems receptive to that argument. Without a TRO, he ruled on Tuesday, the plaintiffs "will be deprived of their right to bear arms" under the state constitution "by being made unable to lawfully purchase a firearm [because the requisite training program has not been established yet] or bear a magazine capable of holding more than 10 rounds of ammunition." He added that "deprivation of constitutional rights for any period constitutes irreparable harm." The state asked the Oregon Supreme Court to stay Raschio's order, which it declined to do on Wednesday.

U.S. District Judge Karin Immergut, by contrast, seems inclined to think that the magazine limit does not implicate the Second Amendment at all. And if it does, she said in two orders issued the same day that Raschio blocked Measure 114, it does not amount to the sort of constitutional violation that would justify a TRO based on the evidence presented so far. Immergut's reasoning is reminiscent of the highly deferential approach to gun control laws that Bruen was supposed to remedy.

Bruen unambiguously rejected the "two-step" analysis that many courts had applied in upholding gun control laws. The first step asked whether the challenged law affected conduct covered by the Second Amendment, while the second step weighed that imposition against the law's purported public safety benefits. That was "one step too many," the Court said in Bruen: "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation."

The Firearms Policy Coalition (FPC) argues that Oregon's 10-round cap, which includes exceptions for law enforcement and for previously owned magazines as long as they are kept at home or used only for "recreational activities such as hunting," fails the Bruen test. The "arms" covered by the Second Amendment include magazines, it says, and the "large capacity magazines" targeted by Measure 114 have been around a lot longer than legal attempts to prohibit them.

"Firearms capable of holding multiple rounds have existed since the late 15th century, and firearms capable of firing more than ten rounds without reloading have existed at least since the late 16th century," the FPC notes. "Firearms capable of firing multiple rounds without reloading were well known to the founding generation….Magazines holding over 10 rounds were commonly possessed already in the 1860s, 130 years before attempts to strictly regulate them would come along."

Such magazines remain "in common use" for "lawful purposes," the standard that the Supreme Court has applied in determining which arms are covered by the Second Amendment. "Although Measure 114 describes magazines that can accept more than 10 rounds of ammunition as 'large capacity magazines,' this is a misnomer," the FPC says. "Magazines capable of holding more than 10 rounds of ammunition are a normal feature of firearms in the United States and are more accurately described as 'standard capacity magazines.'"

The FPC cites Georgetown University political economist William English's 2021 National Firearms Survey, which found that 48 percent of gun owners had owned magazines that could hold more than 10 rounds. Those results, the FPC says, suggest that "as many as half a billion of these standard capacity magazines have been owned by Americans throughout the United States." That is an upper-bound estimate, since people who reported that they ever owned such magazines may have subsequently sold them. But even allowing for some double counting, these numbers indicate that the magazines banned by Measure 114 are indeed "in common use," typically for "lawful purposes."

Are magazine restrictions "consistent with the Nation's historical tradition of firearm regulation"? "There is no historical tradition of prohibiting the manufacture,
importation, or sale of magazines capable of holding more than ten rounds," the FPC says. "Magazine bans were unknown in the United States before the 20th century. Bans like Oregon's are recent phenomena—indeed, until Measure 114 was put in place, Oregon did not restrict manufacturing, transferring, possessing, or using standard capacity magazines, and no such laws existed anywhere in the United States before the 1990s."

Immergut was unimpressed by those facts. In her orders denying TROs, she questions whether "the Second Amendment's plain text" covers ownership of the magazines banned by Measure 114. "The Second Amendment covers firearms and items 'necessary to use' those firearms," she writes. Since guns that accept "large capacity magazines" also accept smaller magazines, she suggests, the former may not qualify: "Plaintiffs have not shown, at this stage, that magazines specifically capable of accepting more than ten rounds of ammunition are necessary to the use of firearms for self-defense."

The FPC cites a couple of real-life cases that suggest magazine capacity can be crucial in fending off armed home invaders. More generally, it notes that shots fired in self-defense often miss their target, even when fired by trained police officers. Measure 114's exemption for police officers recognizes that fact, the FPC says, and "the average Oregon citizen has just as much right as a police officer to defend herself with standard capacity magazines."

For Immergut, however, the crucial point is that situations where Oregon's magazine limit would impair self-defense are "exceedingly rare." In effect, she is suggesting that arms are not covered by the Second Amendment unless the government agrees that they are "necessary"—and not for "lawful purposes" generally but for self-defense in particular.

Immergut even questions whether "large capacity magazines" are "in common use" for "lawful purposes," which seems undeniable given how many law-abiding Americans own them. "Plaintiffs have not shown that magazines capable of accepting more than ten rounds of ammunition are firearms in '"common use" today for self-defense' and thereby covered by the plain text of the Second Amendment," she writes.

In English's survey, owners of "large capacity" magazines cited a variety of lawful uses. Recreational target shooting, which was mentioned by 64 percent of the magazine owners, was the most common, followed by home defense (62 percent), hunting (47 percent), defense outside the home (42 percent), and competitive shooting (27 percent). Immergut acknowledges those findings but deems them inconclusive. Her analysis first limits "lawful purposes" to self-defense, then narrows the focus further to cases in which someone actually fired more than 10 rounds for that purpose. If that does not happen very often, she reasons, gun owners do not have a valid Second Amendment complaint about Oregon's magazine limit.

Even if they did, Immergut suggests, the "minimal" burden imposed by that law is justified by its expected public safety benefits. "Large-capacity magazines appear to be the weapon of choice for the commission of mass shootings," she says.

The FPC argues that the magazine limit is unlikely to have any measurable impact on violent crime:

Unlike law-abiding citizens, violent criminals will not be meaningfully
constrained by Oregon's magazine ban. Given the hundreds of millions of magazines in circulation in the country (including in Oregon, where they remain widely possessed), it will not be difficult for violent criminals to acquire them through illegal sales or importation despite Oregon's ban. And unlike law-abiding citizens, violent criminals will have no compunction about violating Oregon's magazine ban. Even if violent criminals were effectively prevented from acquiring banned magazines, they could easily compensate by bringing multiple firearms or magazines with them to the scene of the crime. Their ability to do so is made possible by the fact that violent criminals, and not their law-abiding victims, choose the time and place of crimes and can plan accordingly.

Leaving that debate aside, Bruen cautioned against "any judge-empowering 'interest-balancing inquiry' that 'asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests.'" Immergut acknowledges that the Supreme Court "rejected means-ends scrutiny" but adds that "Bruen still instructed lower courts to consider the 'how and why' of a particular regulation in historical context." And "in considering whether Defendants are comparably justified in imposing Measure 114 as were this Nation's earlier legislatures in imposing historical regulations," she says, "this Court finds that it may consider the public safety concerns of today." That looks a lot like "means-ends scrutiny" by a different name.

What about those "historical regulations"? The FPC notes that magazine limits, which date from the 1990s, have no historical pedigree to speak of. But "in the 1800s," Immergut notes, "states often regulated certain types of weapons, such as Bowie knives, blunt weapons, slungshots, and trap guns, because they were dangerous weapons commonly used for criminal behavior and not for self-defense." She seems to think those "analogues" are close enough.

The Supreme Court may ultimately disagree. In June, the Court vacated two appeals court decisions upholding magazine limits imposed by California and New Jersey. It instructed the 9th Circuit and 3rd Circuit to reconsider the cases in light of Bruen.