Judge Adrian Nelson of the U.S. District Court for the District of Oregon, a Biden appointee, found a way to uphold the state's onerous and unconstitutional ghost gun ban.
She ruled that while they were “tolerable,” they were not “tolerable for any lawful purpose.”
The language of the Second Amendment is clear.
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.
But she denied a motion filed by the Firearms Policy Coalition (FPC) on Tuesday to issue a preliminary injunction (TRO) against the law, which goes into full effect on September 1, citing other court rulings that hold that “tolerate” must only mean “tolerable for a lawful purpose.”
House Bill 2005
The law prohibits the production of undetectable firearms “constructed or manufactured entirely of non-metallic materials, including through three-dimensional printing processes.” Possession of a ghost gun is a misdemeanor. Manufacturing a ghost gun is a felony, punishable by up to 10 years in prison and a $250,000 fine.
Oregon Governor Tina Kotek signed House Bill 2005 last year, which is set to go into effect on September 1, 2024. It was another attempt to weaken the Second Amendment and a response to the changing judicial environment following the Supreme Court's 2022 decision in the Bruen case.
Judge's decision
Judge Nelson wrote:
The Second Amendment does not protect the right to keep and bear all firearms. … In Heller, the Supreme Court stated that “the Second Amendment does not protect weapons not ordinarily owned for lawful purposes by law-abiding citizens, such as short-barreled shotguns.” … (emphasis in original)
Therefore, to determine whether a plaintiff's conduct falls within the protections of the Second Amendment, a plaintiff must prove that a firearm without a serial number, an undetectable firearm, or an unfinished frame and receiver without a serial number, is a portable weapon commonly used by lawful citizens for lawful purposes.
Defendants' arguments focus primarily on aspects of common use and lawful purpose and are substantially silent on whether the items constitute portable weapons.
The Court therefore considers this point to be granted for purposes of this motion.
Translation: The FPC did not accept the arguments presented by Oregon, thus conceding the point and giving the judge the leeway he needed to rule denying the TRO request.
She writes:
Defendant (Oregon) presented evidence showing that unserialized, undetectable firearms are increasingly being used for clearly illegal purposes.
She then recited the usual mantra about how undetectable guns make law enforcement's job harder, a point she cited from an earlier case.
Because PMFs (privately manufactured firearms) are not marked, it can be extremely difficult for law enforcement to determine where, who, and when they were manufactured, to whom they were sold, or when they were disposed of.
Are serial numbers used for tracking?
She conveniently ignored at least two important points: first, the vast majority of firearms used by criminals are obtained illegally, and second, law enforcement agencies use cartridge cases, not serial numbers, to track firearms used in criminal cases.
Portland Police Lt. Ken Dulio, who heads the department's gun violence investigation and prevention team, said the new law will have a minimal impact on crime: Of the 1,364 guns collected in 2022, only 48 would be prohibited under the new law, or 3.5%.
He added that while tracking a firearm using its serial number can be useful, most investigations focus on the unique markings left on cartridges by each firearm, whether privately or commercially made.
Returning to Judge Nelson’s flawed reasoning, in her decision denying the FPC’s request, she found that Oregon
“We have presented substantial evidence showing that to the extent firearms without serial numbers are commonly used (as currently required by Bruen Law), they are commonly used for unlawful (emphasis hers) purposes….Plaintiff (FPC) has not presented any evidence as to why law-abiding citizens would prefer undetectable firearms, other than for unlawful purposes.”
In her view, the mere possession (or manufacture) of a “ghost gun” is illegal and not protected by the Second Amendment to the U.S. Constitution, which makes perfect sense to the judges who charitably disagree.
Further efforts to prevent crime
Interestingly, while gun crime in Oregon continues to rise, crime in the state's largest city, Portland, has dropped significantly. The reason for this is the efforts of Ceasefire and Safer Portland, community efforts aimed at targeting potential criminals rather than criminals. According to Ceasefire, these efforts focus on “a very small and very high-risk population that is a significant driver of gun violence in Portland.” Elizabeth Perez, Director of Safer Portland, said:
We want to make sure there are things we can apply as positive ways for potential offenders to spend their time: mentoring, workshops, sports, arts, internships, etc.
Such efforts are supported by Cam Edwards, a journalist at Bearing Arms: “If we want to reduce violent crime, we need to target the most prolific criminals, not lawful gun owners,” Edwards said.
The law's focus on going after lawful gun owners and manufacturers reflects the anti-gun reactionaries who abound in state legislatures.
The Oregon Legislature’s relentless drive to subordinate people is truly insatiable, and the Oregon judges’ blatant and arrogant disregard for the Supreme Court’s clear orders is appalling.
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