Oregon Firearms Federation v. Kotek - Part 1
Findings of Fact: History and Tradition
This week, in a three-part series, we highlight excerpts from Oregon Firearms Federation v. Kotek, an important, recent court case out of Oregon concerning Measure 114. The Measure, passed last November, institutes Permit-to-Purchase licensing as well as restrictions on large capacity magazines. These policies are crucial to saving lives, but their implementation has been stalled due to pending court cases. This decision by Judge Immergut (a Trump appointee) provides an important framework for applying relevant history as well as determining “common use” in the context of large capacity magazines being used in self-defense.
U.S. District Court for the District of Oregon, Judge Karin Immergut, July 14, 2023
Findings of Fact: History and Tradition
Introduction
…Bruen instructs courts to consider whether a challenged regulation “is consistent with the Nation’s historical tradition of firearm regulation,” this Court admitted evidence at trial about the history of firearms and weapons technology since the Nation’s founding in 1776 and the ratification of the Second Amendment in 1791 through to the mid-twentieth century.
Based on the evidence presented, this Court finds that detachable magazines did not exist at the time of the Founding.
In the eighteenth century, the word “magazine” referred to a storage facility or depot that housed gunpowder and, on occasion, weapons. Items that contained ammunition in the eighteenth century, such as cartridge boxes, were considered “accoutrements,” which was used as a semantically distinct term from “arm.”
While repeating firearms existed prior to the ratification of the Second Amendment, these firearms were exceedingly rare, particularly within the general populace. [Historian Brian Delay, a professor at Berkeley,[1]] testified about two specific types of repeating firearms that existed in early Colonial America and at the time of the Founding: the Cookson repeating firearm and the Belton repeating firearm.
The Cookson repeating firearm was a firearm designed by English master gunmaker John Cookson that could fire nine shots without reloading. There is evidence of only one nine-shot Cookson repeating firearm, produced in England, that existed in America prior to the Founding. The Belton repeating firearm was a superposed load firearm, which operated like a Roman candle, in which a single charge would ignite each subsequent charge until the firearm had fired all its rounds. While there is evidence that the Continental Congress offered to purchase 100 of these firearms for use in the Revolutionary War, there is no evidence that this firearm existed outside of a prototype.
Repeating firearms were not commonly owned by civilians in the years immediately prior to, or following, the Founding of the United States of America in 1776.
Repeating firearms were expensive and laborious to produce, and the technology was beyond the mechanical and technical capacity of most firearms manufacturers at the time. Because of their rarity amongst civilians, these repeating firearms were viewed more as curiosities than as weapons for self-defense.
Also, large-capacity repeating firearms, which could fire more than ten rounds without reloading, likely did not exist in America prior to the Founding in 1776. Instead, the firearms most commonly possessed by civilians in the eighteenth century fell into four categories: muskets, rifles, pistols, and lighter smoothbore firearms used for hunting.
An eighteenth-century musket held one round, and reloading it required the user to complete at least eight steps, including opening a paper cartridge with a premeasured amount of gunpowder and single ammunition ball, pouring some of the gunpowder into a priming pan, pouring the rest of the gunpowder into the muzzle of the musket, inserting the ammunition ball covered with the paper from the cartridge into the muzzle, and ramming the powder and ammunition together to form a seal.
A well-trained militia person in the eighteenth century could fire two to three rounds per minute from a musket. An eighteenth-century rifle user could, at most, fire three rifle shots in two minutes. Reloading a rifle took longer than reloading a musket because there were no paper cartridges for rifles, meaning that a shooter had to use a gunpowder horn to pour the gunpowder into the muzzle. Reloading a rifle also required the shooter to put a grease patch, which was a greased piece of linen, between the gunpowder and the ammunition ball, to provide a seal between the two.
An eighteenth-century smoothbore long gun was reloaded like a musket, in that it did not require a grease patch, but smoothbores also did not commonly use paper cartridges, such that reloading a smoothbore long gun took slightly longer than reloading a musket, but was not as slow as reloading a rifle. An eighteenth-century pistol was reloaded like a musket, except that the pistol’s size allowed the user to load slightly faster, such that it could be fired three to four times per minute.
Given these technological limits on firearms, interpersonal gun violence was not widespread in society prior to the middle of the nineteenth century.
Between 1776 and 1860, only ten to fifteen percent of homicides between family members involved a firearm. Because most firearms were muzzleloading powder firearms, they were difficult to keep loaded and at the ready for self-defense or spontaneous violence due to the powder’s corrosive properties.
Accordingly, based on the credible evidence presented at trial, this Court finds as follows: Repeating firearms were not commonly owned by civilians at the time of the Second Amendment’s ratification in 1791. Repeating firearms that could fire more than ten rounds without reloading did not exist in America prior to 1791. Interpersonal gun violence was not a general societal concern in 1791.
Firearms and Weapons Regulations in the Founding Era
…Before 1791, firearms could not fire without gunpowder. Gunpowder in the eighteenth century was unstable and could lead to explosions and fires if stored improperly. Because of these risks, gunpowder was subject to regulation throughout colonial America and, after 1776, throughout the early Republic.
In the eighteenth and early-nineteenth centuries, gunpowder-related explosions posed a particular societal risk because of the lack of uniform safety codes or fire departments, meaning that even small fires could potentially turn catastrophic.
Pre-1800, nine colonies or states passed laws limiting or regulating the possession, use, or sale of gunpowder. Maryland, Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, and Virginia all enacted laws regulating the storage of gunpowder. Connecticut, Maryland, Massachusetts, New Jersey, New York, Pennsylvania, and Rhode Island all enacted laws regulating the manufacture, inspection, sale, or ignition of gunpowder. And Maryland and New York additionally enacted laws regulating the transport of gunpowder.
Based on the above evidence, this Court makes the following finding: large quantities of gunpowder posed a threat to public safety at the time of the Second Amendment’s ratification in 1791. In the late-eighteenth century, colonies and states responded to this danger by regulating the amount of gunpowder that could be stored in a given area and placed restrictions on the manufacture, inspection, sale, and transport of gunpowder.
Over the next two days we will share more excerpts from this decision, focusing on the historical findings of the court.
[1] Dr. DeLay, one of several expert witnesses at the trial, “is a professor of history at the University of California, Berkeley, where he focuses on the international arms trade in the eighteenth and nineteenth centuries. Dr. DeLay received his bachelor’s degree from the University of Colorado at Boulder, and his master’s degree and Ph.D. in American History from Harvard University.”
Image by Natalie White from Pixabay.