PRESIDENT’S MESSAGE

by Dave Funk | Jul 18, 2023

Are the Lower Federal Courts Going Rogue?

Are the lower Federal Courts going rogue against SCOTUS’s Bruen decision? To answer that question we have to look at how case law is developed in America. We all know that Congress writes legislation, and the President either vetoes or signs it into law. After that, various administrative agencies write rules and regulations, some with criminal penalties and some with civil penalties. 

After a party challenges or enforces that law, and once it’s been to trial, appeals can be brought based upon the outcome of the trial (either civil or criminal). That’s an overly simplified explanation on how to develop case law.

Recently voters in Oregon passed Ballot Measure 114 that outlawed “large capacity magazines” and required gun registration. That law has been challenged in federal court and a bench trial was held by the U.S. District Court. Judge Karin Immergu released her findings on July 14th that the new state law is constitutional.

Judge Immergu “weighed” the evidence she heard and clearly did not follow the guidance SCOTUS set down in Bruen. Her reasoning is clearly flawed, and the best analysis I have seen on the ruling so far was by RedState.com author JimThompson. I’ll quote a large section here because it’s so well written:

“In short, this court admitted some evidence but dismissed other evidence, such as:

“…between 1990 and 2018, there were 304.3 million detachable magazines in circulation in the United States.” Of those, “approximately 160 million had a capacity of eleven rounds or greater.” She found that that evidence “was entitled to little weight” (page 24). Instead, she found the testimony of an expert on self-defense use to be compelling. That evidence was that LCM is rarely used in self-defense and therefore were not in “common use.”

That is a stunning finding. It means that any gun or accessory not typically used in self-defense could be seen as not meeting the “common use” test and therefore could be banned.

This seems in conflict with what Justice Kavanaugh wrote in his Heller dissent (before he was a sitting SCOTUS Justice).

“There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller‘s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional.”

And in the remanded matter of New York State Rifle & Pistol Association v. Bruen, the Supreme Court was not inclined to side with what seemed to be laws restricting the right to keep and bear arms — like Oregon’s Measure 114. Judge Immergu frequently cherry-picked from Bruen to satisfy her conclusions.

Also of note, current LCM owners are “exempt” inasmuch as they can keep what they already own. If there is a compelling “public safety” concern because most mass shooters used LCMs, and they can cause more injury and death, why then are current owners not ordered to turn in their LCMs? If an LCM is “more” dangerous than a 10-round capacity magazine, and is an existential public safety threat by just existing, then it is a danger now, not just in the future. Oregon didn’t attempt to confiscate LCMs because the state knew that such a measure would go down in flames. But that still leaves me wondering — if something is “dangerous,” how can the state justify not asking for all LCMs to be turned in?

 Judge Immergu went on to write:

Magazine capacity is highly related to the lethality of a weapon, because capacity is what determines the number of shots that can be fired within a given time without having to pause to reload. Tr. 6/6/2023 513:5–10. State laws banning LCMs reduce the incidents of mass shootings between 48 to 72 percent and decrease the number of fatalities that occur in these mass shootings by 37 to 75 percent. Tr. 6/6/2023 506:14–19. Defendants presented credible evidence at trial demonstrating that the relationship between restrictions on LCMs and reductions in mass shootings is so pronounced that it is a causal relationship, meaning that the restrictions were at least partly responsible for the reductions. Tr. 6/6/2023 507:20–508:1

I am not convinced that Judge Immergu’s reasoning is sound and suspect it will not hold up on appeal. It seems that ignoring that millions of LCMs are owned (and never used in mass shootings) is a fatal flaw in her ruling. Her finding that although they are owned by millions not typically used in self-defense seems like a pre-conceived conclusion in search of facts to support it.

California, Hawaii, Washington, and now Oregon have passed laws restricting LCMs–even though these laws, like Measure 114, will eventually make their way to SCOTUS and, in my opinion, will be found unconstitutional.

Be careful what you ask for, Oregon. It may come back to bite you.

2024 Matters – Vote Thoughtfully!

Jim’s excellent analysis leaves out one important consideration. The left relies on activist judges to interpret our Constitution the way they want it. They do this because they cannot win in the court of public opinion or through the normal legislative process. Oregon is in the 9th Judicial District, the most liberal of all districts. My guess is that this is the first of many “set up” cases needed  to strike down Bruen in a future more liberal SCOTUS. This is one reason that Presidential elections are so important. Who controls the White House controls the future of the judiciary. Let’s not fall for the next shiny thing come 2024 and ensure a pro-gun and pro-constitutionalist Presidential nominee comes out of the Iowa Caucus a winner and gets elected next year. 

The anti-freedom dangerous quacks are playing a long game but so are we. Help us by joining or renewing your IFC membership here today.

Shoot Straight, Speak The Truth, and Never Surrender Our Liberties.

Dave Funk
President, IFC