Max Denning

Eight counties in Oregon passed a measure on election day known as a Second Amendment preservation ordinance. In Eastern Oregon this month, Second Amendment Preservation Ordinances were passed in Union, Umatilla and Baker counties, and a similar law passed in Wallowa County in 2013.

In Union County, the ordinance expands the definition of firearms and prohibits the enforcement of laws that regulate the manufacture, sale and possession of firearms in Union County. It will require the sheriff to review any state or federal laws affecting firearms or firearms accessories to determine whether or not they are constitutional. The ordinance makes “unconstitutional in Union County any law or regulation that restricts a person from possessing firearms, ammunition and firearms accessories,” according to the text of the measure.

Sheriff Boyd Rasmussen did not respond to multiple requests for comment.

However, there has been some debate over whether the measure is legal or enforceable. Ken Wisdom, the chief petitioner for the ballot measure in Union County, told The Observer on Nov. 7 he had talked to lawyers who told him the law was enforceable. Wisdom likened it to a sanctuary state law for gun rights.

“If they can enforce the illegal immigrants’ sanctuary, they can enforce this bill,” Wisdom said.

It might not be that simple. In Oregon, statute ORS 166.170 states the authority to regulate firearms, ammunition or other components relating to firearms is vested solely in the state legislative assembly.

Jim Westwood, senior counsel at Stoel Rives law firm in Portland, cited this law as the legal basis for the county ordinance being unenforceable.

“I think the state has preempted this,” Westwood said. “I’m not sure the county sheriff or anybody else in a county would have the authority under Oregon law to declare anything contrary to Oregon law.”

Westwood is a past chair of the Oregon State Bar Constitutional Law Section, has been included in the list of Best Lawyers in America from 1998 to 2018, and is a volunteer coach for the constitution team at Grant High School.

While the ordinance states the sheriff would have the ability to deem a law unconstitutional, Westwood pointed out those powers are given to the courts.

“My thought is the court would then declare whether a state law applied in a county is unconstitutional,” he said. “I’m not sure the sheriff has the final authority. I’m actually pretty sure he or she wouldn’t.”

While the so-called
Second Amendment Preservation Ordinances may be unenforceable, to be deemed illegal they would have to be challenged in court. To be challenged in court, a sheriff would most likely have to make an attempt to deem an Oregon or federal law unconstitutional.

One example of a law that Wisdom would hope to stop with the ordinance was a law floated by faith leaders in Portland, known as initiative petition 43. The measure would have banned some types of weapons and high-capacity magazines in Oregon, but it didn’t receive enough signatures to get on the ballot in the state. The leaders of the effort said they will try again in 2020.

“I think there will be a challenge to one of these ordinances if a sheriff in one of these eight counties wants to try to declare a statute unconstitutional,” Westwood said. “The legislature can’t say if something is constitutional or not. But the courts can certainly say that.”