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.
