A local initiative petition that seeks to protect the right to keep and bear arms is unnecessary, misguided and almost certainly would be tossed out by the courts.
The petition seeks to add a “Right to Bear Arms Amendment” to the Jackson County Charter. Backers of the effort are responding to a statewide initiative that, if approved by voters, would ban the ownership of some military-style assault weapons in Oregon.
The statewide measure is waiting for an approved ballot title before signatures can be gathered; depending on how long that takes, it could be a stretch to collect enough signatures by the July 6 deadline for the November ballot. The county measure is also awaiting an approved ballot title.
At this stage, we’re not interested in debating the merits of an assault-weapon ban or weighing in on whether it would be effective in preventing mass shootings. What we can say is that such a ban likely would be constitutional, despite opponents’ protests to the contrary, while the county-level measure likely would not be.
The late Supreme Court Justice Antonin Scalia, in the court’s decision in District of Columbia v. Heller that the Second Amendment protects an individual right to keep and bear arms, wrote that the Second Amendment is not absolute, and does not prohibit any number of reasonable restrictions on firearms, including the existing ban on machine guns. Last November, the high court declined to hear a challenge to Maryland’s ban on large-capacity magazines and semi-automatic weapons — which is what the Oregon initiative would do.
So the statewide initiative is probably constitutional. If it made the ballot and passed, it would be state law. No county ordinance or charter amendment could invalidate it, but that is exactly what the county initiative seeks to do.
Beyond that, the local initiative would order the county sheriff to determine whether any federal, state or local law regulating firearms, accessories or ammunition “violates the Second, Ninth, or Tenth Amendments to the Constitution.”
In the United States of America, county sheriffs are sworn to uphold all laws. They don’t get to decide which ones are constitutional and which are not. Only the courts have that power.
The authors of the county initiative also declare that the “right to manufacture, transfer, buy and sell firearms, firearm accessories and ammunition” is an “ancillary firearm right” under the Ninth Amendment. The Bureau of Alcohol, Tobacco and Firearms might beg to differ.
The statewide initiative may or may not make the ballot, and may or may not pass if it does. Opponents of the push to ban some semi-automatic firearms and high-capacity magazines would be better off spending their time and energy campaigning against that measure than pushing a blatantly unconstitutional county initiative.