Measure 114 and constitutional law


Last updated 12/14/2022 at Noon

Reams of paper have already been chewed up by lawyers arguing the constitutionality of Measure 114 (2022). Forests of paper, barrels of ink, and many pages in the calendar will be consumed before Oregonians learn whether, and to what extent, the measure’s new limitations and controls on firearms will ever be enforced.

Two judges recently got the process off to a rollicking and, to some, head-spinning start. Federal District Court Judge Karin Immergut denied a preliminary request to delay implementation, ruling that opponents have not yet persuaded her that Measure 114 is unconstitutional. Proponents celebrated and opponents licked their wounds. Hours later, opponents of Measure 114 partied, and proponents nursed their grievances after state Circuit Court Judge Rob Raschio halted implementation and declared that the measure is likely unconstitutional.

What gives? How could two highly educated students of law and respected judges reach different results in what seems superficially to be the same dispute?

The answer reveals an often-overlooked and yet very important truth about constitutional rights. Many of our most fundamental rights are guaranteed not by a single constitution, but by two.

The Bill of Rights to the U.S. Constitution is the protection most of us know best. We tend to think of the U.S. Bill of Rights as the only protection of our rights to free speech, to equal protection of law, to the free exercise of religion, or to purchase “arms” without unconstitutional restraint.

But there is another layer to the protection of these and many other individual rights. That layer is the Oregon Constitution.

Opponents of Measure 114 have loaded their magazine with at least two rounds of ammunition. One is the Second Amendment to the Bill of Rights in the U.S. Constitution. The other is Article I, section 27 of the Bill of Rights of the Oregon Constitution. Proponents must separately defend against both attacks.

The two constitutions do not use the same words.

Here is the text of Article I, section 27 of the Oregon Constitution, exactly as it was adopted by popular vote in 1857: “27.-The people shall have the right to bear arms for the defence [sic] of themselves, and the state, but the Military shall be kept in strict subordination to the civil power.-” In making his ruling, Judge Raschio tested Measure 114 against Article I, section 27.

Compare that text to the Second Amendment, tacked on to the U.S. Constitution of 1789 and ratified by the States in 1791: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In making her ruling, Judge Immergut tested Measure 114 against the U.S. Constitution, including the Second Amendment.

It is much too soon to know whether variances between the text of the two constitutions will make any difference in the end.

In some cases involving other dual rights, courts have concluded that the Oregon Constitution provides stronger — or at least different — protections than the U.S. Constitution.

Oregonians objecting to a police search, for example, are sometimes able to successfully challenge the search under the Oregon Constitution, even though the same police action would be lawful under the U.S. Constitution.

Similarly, Oregon’s Bill of Rights forbids laws “restricting the right to speak, write, or print freely on any subject whatever,” whereas the First Amendment to the U.S. Constitution has, in some respects, been held to be less protective of free speech rights.

The Oregon Supreme Court has the final word on interpreting our state constitution. When it comes to interpreting the U.S. Constitution, the United States Supreme Court has the power to have the final say. If the measure violates the Oregon Constitution, then it is “game over” for the proponents, regardless of whether Measure 114 also violates the Second Amendment. If Measure 114 is not unconstitutional under the Oregon Constitution, then the hopes and fears of the proponents and opponents alike will depend on whether the measure violates the U.S. Constitution.

Pete Shepherd formerly served as Deputy Attorney General of Oregon. He is retired from the representation of clients.


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