The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Second Amendment Roundup: Upholding Oregon's Magazine Ban
Plaintiffs’ experts are biased, but defendants’ are neutral.
On July 14, the U.S. District Court for Oregon issued a 122-page opinion, styled Oregon Firearms Federation v. Kotek Oregon Alliance for Gun Safety, upholding Oregon's ban on magazines holding over ten rounds. Its author is Judge Karin J. Immergut. While the reasoning in the opinion is similar to like decisions by some other district courts, what I found remarkable was the disparate treatment of the expert witnesses for the parties.
Because this is an arms ban case, the court should have applied the common-use test required by the Supreme Court in District of Columbia v. Heller. But it didn't. The court rejected plaintiffs' claim that the Second Amendment protects firearms that are in common use and instead skipped to the next step set forth by the Supreme Court in Heller and in New York State Rifle & Pistol Ass'n v. Bruen, asking whether the magazine ban is "consistent with this Nation's historical tradition of firearm regulation." Bruen resolved the historical issue in that case by direct reference to the historical sources, with no need for experts. Judge Immergut wrongly relied on expert testimony. See my prior post on that issue.
Judge Immergut found that plaintiffs' historical expert was biased, but that the defendants' experts were neutral. Plaintiffs' expert was Ashley Hlebinsky, former curator at the Cody Firearms Museum at the Buffalo Bill Center of the West and current Senior Fellow at the University of Wyoming College of Law's Firearms Research Center. Despite her hands-on knowledge of historical firearms and her M.A. in history, she "lacks background and training as a historian," has received awards from the Second Amendment Foundation, and "[p]erhaps most importantly … is married to" a man who derives his income from the firearms industry.
By contrast, "[d]efendants' experts come from neutral academic backgrounds and possess no economic interest in the sale of LCMs [large-capacity magazines]." "This Court finds the testimony of Defendants' neutral historical experts to be significantly more credible—and entitled to more weight—than that of Ms. Hlebinsky." To determine how "neutral" those experts are, I'll focus on Robert Spitzer, who has a Ph.D. in political science and is a professor emeritus at the State University of New York.
Dr. Spitzer has been retained in several post-Bruen challenges to testify in support of firearm restrictions. As to whether his testimony would be consistent with what Bruen requires, he reacted to the Bruen decision with an article entitled "How the Supreme Court rewrote history to justify its flawed gun decision" (June 23, 2022). There, he said that the Court's conclusion that little evidence existed of an early American practice of regulating public carry of firearms meant "not only deliberately overlooking, but also actually contradicting that historical record."
Among his many articles, in 2000 Spitzer wrote that "the Second Amendment pertains only to citizen service in a government-organized and regulated militia," a view emphatically rejected by the Supreme Court in Heller. His article decried that law reviews were publishing too many articles supporting the individual-rights view of the Amendment. (My name is mentioned no less than 34 times.) Spitzer's piece was published in a symposium issue of the Chicago-Kent Law Review featuring only authors with the collective-rights viewpoint, including none other than the academic fraudster Michael Bellesiles. The issue was financed by the Joyce Foundation. The editor was paid $30,000 and each author got $5,000. Several comments about the limitation of the authors to one side of the debate and the failure to disclose that a partisan group financed the symposium were posted on the Volokh Conspiracy. See Randy Barnett's post referencing David Hardy's article.
There is an expert-witness industry that supports gun control, and it seems naive to believe that its members are "neutral." And for actual knowledge about historical arms, a former curator at an arms museum is going to know far more than a political scientist from a university.
Judge Immergut also disparaged the testimony of Massad Ayoob, a nationally-renowned expert on the use of firearms in self-defense, because he had only anecdotal evidence of the use of firearms with magazines holding over ten rounds being fired in self-defense. He served for nineteen years as the chair of the Firearms Deadly Force Training Committee for the American Society of Law Enforcement Trainers, and he has served as president of the Second Amendment Foundation since 2020. Would a media expert lack credibility based on membership in the Institute for Free Speech?
Now to Judge Immergut's decision on the merits. Although giving little weight to the estimate by the National Shooting Sports Foundation of 160 million magazines with a capacity of eleven or more rounds, the court concedes that "millions of Americans today own LCMs." But that's because, she says, manufacturers and dealers "limit consumer choice and magnify the commonality of LCMs" by making them available, thus "allowing the firearms industry to control the bounds of the Second Amendment."
You don't have to be Milton Friedman to understand that supply reflects demand. Since the court recognizes that ten-round magazines are available for many semiautomatic firearms, why don't consumers buy them, unless coerced into doing so by a ban?
To the court, neither Heller nor Bruen clarified what "in common use" means. Because "an individual's subjective intent in purchasing a firearm or firearm accessory for self-defense" doesn't count for much, an "objective standard" must be set by the court, according to the opinion. (That "standard" was set by the Supreme Court in Caeteno v. Massachusetts when it held that 200,000 stun guns were in common use.) The district court says that ordinary citizens don't need magazines that hold more than ten rounds. Since "ordinary civilians in self-defense situations rarely fire more than ten rounds," they are not "commonly used … for self-defense."
But that incomplete quotation distorts Bruen, which found that the historical record does not show a tradition of "prohibiting the public carry of commonly used firearms for self-defense." Elsewhere Bruen referred simply to "the right to bear commonly used arms." And Heller referred to the right to have arms in common use "for lawful purposes like self-defense."
The court focuses on mass shootings, defined (contrary to the most accepted definition) as involving four or more people shot, as opposed to killed. Far more persons are killed in non-mass shootings like those that occur daily in the streets of Chicago. Apparently to skew the numbers, the court excluded from her definition of a mass shooting "large inner [sic] group violence, including things like race riots, labor riots, and battle skirmishes." The court found that there were no mass shootings in American history that resulted in double digit fatalities from 1776 until 1947. Inexplicably, tragedies like the Tulsa race massacre of 1921 don't count.
But why not start at the beginning of the English settlement in the New World, and consider that reasons for the adoption of the Second Amendment included the need for protection from any source of danger? In 1622, Powhatan warriors massacred 347 men, women, and children at the Jamestown colony. You can read the grisly detains in Captain John Smith's account. Thereafter, all settlers were required to go armed.
And if a mass shooting justifies a gun ban, how is it that Heller was decided a year after the Virginia Tech massacre, in which the perpetrator used two handguns?
Also, why limit the analysis to firearms, when the right to bear "arms" is the issue? The court makes much ado about the fact that at the Founding, most firearms were single shots. (Never mind that Heller said that the Second Amendment protects modern arms, just as the First Amendment protects modern forms of communications.) In a sense, knives were the equivalent to today's magazines, as they "were 'exceedingly deadly,' and could be used by individuals as many times as they were so inclined." Thus, "a Bowie knife … was likely a useful device for self-defense in the nineteenth century, particularly compared to other available options." But that's why no state banned mere possession of Bowie knives, and only some restricted concealed carry.
So how is a restriction on concealed carry of knives a historical analogue for a ban on mere possession of standard magazines? Dr. Spitzer testified that in the 19th century, "governments generally did not have the mechanisms, the ability, the capability to simply ban a knife outright, especially in light of the fact that a knife is a very simple thing technologically." The court agreed that "it must consider the political realities of an era when evaluating whether a law is sufficiently analogous to a modern-day regulation," and found Spitzer's testimony "persuasive."
This seems to imply that, had the 19th century states been able to ban possession of Bowie knives, they would have. Ergo, an imaginary ban that never became law is a historical analogue for today's ban. Such reasoning is not historical analysis, but fantasy.
Using terminology from Bruen, the court tried to justify the ban based on a supposed "unprecedented societal concern" and what it considered to be a "dramatic technological change." Mass shootings with LCMs purportedly constitute an "unprecedented societal concern," but the court doesn't compare the numbers with non-mass shootings. According to the Pew Research Center, in 2021, out of 20,958 gun-related murders, only 103 were victims in what the FBI calls "active shooter incidents," i.e., mass shootings
The court also concluded that magazines holding over ten rounds represent a "dramatic technological change." But not since 2008, when Heller was decided. Indeed, the court recognized: "In the 1860s, the Henry and Winchester rifles, which were lever-action firearms, became the first large-capacity repeating firearms to enjoy limited commercial success in the United States." In fact, Winchester repeating rifles, many holding fifteen or more rounds, enjoyed enormous commercial success, selling millions over the past 150 years.
As semiautomatic firearms with detachable magazines became widespread in the early 20th century, the court found that laws restricting those that held over a certain number of rounds became "common" – but only six states and D.C., out of 48 states, passed such laws, and they were all repealed. At any rate, firearms and magazines that have been around for a century and a half hardly constitute a "dramatic technological change."
The court concluded that the banned magazines are not commonly used for self-defense, but even if they are protected by the Second Amendment, the ban is "consistent with this Nation's history and tradition of regulating uniquely dangerous features of weapons and firearms to protect public safety." That final phrase sounds like means-ends scrutiny that Bruen condemned.
The plaintiffs have appealed the decision to the Ninth Circuit, but it is unclear when that court might act on any Second Amendment cases. After Bruen, instead of deciding any cases that could have been decided as a matter of law, it remanded those cases back to the district courts.
Meanwhile, in Arnold v. Brown, issued in December 2022, Oregon's ban was preliminarily enjoined under that state's constitutional right of the people "to bear arms for the defense of themselves, and the state." In enjoining the ban, Judge Robert S. Raschio of the 24th Judicial District disagreed with some of the factual conclusions of Judge Immergut, who had issued an earlier opinion denying a preliminary injunction.
Judge Raschio noted that firearms with magazines holding over ten rounds existed when the Oregon Constitution was adopted in 1857, traced the several decisions of the Oregon Supreme Court upholding broad protections under its arms guarantee, and found that factually the evidence did not support the ban as having any effect on violence. The court found the declaration of Dr. Spitzer (yes, he's in that case too) not to be helpful.
The opinion includes this down-home flavor: "The evidence shows the distinction the defendants are trying to draw between firearms and magazines is a fiction. Firearms do not function without magazines. An analogy would be making a distinction between a car and its engine."
The Oregon Supreme Court denied a stay of the preliminary injunction. That court will ultimately decide the fate of the magazine ban under the state constitution.
