OPB’s report on ballot measure is deeply flawed, contains implied threat from militias

No voter should ever be subjected to threats of violence. Publishing these threats could intimidate voters or suppress voter turn out. OPB should have reported this to law enforcement, not given violence a public platform.

Dear Mr. Levinson,

Ceasefire Oregon is deeply concerned about several aspects of your November 2, 2018 article, “Sanctuary Cities For Gun Rights? Oregon Militias Try New Political Tactics.” First is the implied violence from Tom McKirgan, who claims membership in Oregon militias. Mr. McKirgan, a supporter of ballot measures for Sanctuary Cities for Gun Rights, admitted the militias are willing to engage in physical conflict if they do not achieve their goals on November 6. (“And if we have to fight physically to do it we will,” McKirgan said. “It’s just that simple.”)

We believe no voter should ever be subjected to a threat of violence. We question the wisdom of Oregon Public Broadcasting allowing a member of the Oregon militia (or anyone) to be quoted as saying that groups will “fight physically” if a voter does not agree with a supporter of a ballot measure. This statement is particularly concerning because the ballot measures could effectively place militia members or supporters of the militias in control of county law enforcement. As you know from your own October 30 article which featured Mr. McKirgan, he spent seventeen years in law enforcement and is a member of Oregon militias. Yet you chose to include his implied threat conspicuously as the last statement–without any comment or pushback–so readers are left with this thought in their memories.

Violent rhetoric never deserves a platform, especially not in the aftermath of bombing attempts and the brutal shooting massacre at the Tree of Life Synagogue in Pittsburgh.

In addition, we would like to address the inaccuracies and implied bias in your article. We urge you to address these publicly. We have provided corrections with explanations and citations.

• Second Amendment Protection (SAP) measures (referred to in your headline as “Sanctuary Cities for Gun Rights”) are not lawful.

  • SAPs clearly attempt to give county sheriffs the ability to amend firearm-related laws. According to Oregon law, ORS 166.170, that power rests with the Oregon legislature.1

  • In July 2018, Grant County Judge W. D. Cramer ruled2 that a Grant County SAP petition violated Oregon’s firearm preemption law (ORS 166.170).

  • SAPs attempt to require county sheriffs to “determine whether any law or regulation pertaining to the right to bear arms or related rights violates the U.S. or Oregon Constitution.” Local officials are not Supreme Court justices and do not have the authority to interpret any part of the US or Oregon Constitutions.

  • Constitutional law expert, Charles Hinkle, was quoted in a 2015 interview3 with “The Huffington Post” about the Coos County SAP.  Mr. Hinkle stated that, under the Coos County SAP, Coos County Sheriff Zanni “would be violating his oath of office by enforcing a county ordinance that is contrary to state or federal law. ‘Of course local officials can’t decide what laws are constitutional. That’s why Kim Davis went to jail,’ Hinkle told the Huffington Post.” Mr. Hinkle’s remarks refer to the inability of sheriffs to act as US Supreme Court Justices.

  • In fact, in your prior article, your cite Douglas County Sheriff John Hanlin’s admission that “interpreting the Constitution is not part of his job or something that he’s qualified to do.”

• The Second Amendment is not an unlimited right.

  • Tom McKirgan stated (and you failed to correct his comment), “If you look at the Second Amendment where it says that it ‘shall not be infringed,’ that’s exactly what it means — our founders meant that.”

  • The late Justice Antonin Scalia’s ruling on the Heller decision clearly stated4,  “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

  • In the same opinion, Justice Scalia continued, “…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

  • Justice Scalia clearly stated that the Second Amendment is not an unlimited right and that laws can be enacted that will prevent firearms from being accessed by people who would be harmful to self or others.

• SAPs are not protected by the Tenth Amendment.

  • The Supreme Court ruled in Printz v. United States (1997) and New York v. United States (1992) that the Tenth Amendment prohibits the federal government from commandeering state governments to assist in enforcing federal law.5

  • Enforcement of federal law is the responsibility of federal law enforcement officials. Therefore, state and local police cannot be forced to detain a person merely to question that person’s U.S. citizenship status.

  • The Tenth Amendment does not give Oregon county sheriffs authority to ignore state laws or the laws of the Oregon Constitution.

  • The Oregon Firearm Safety Act (background checks for gun sales), laws prohibiting guns for stalkers, and the law providing for Extreme Risk Protection Orders are Oregon state laws, not federal laws. There is no Constitutional protection (federal or state) extended to county sheriffs to relieve them from their duty to enforce Oregon laws or allowing them to enact an initiative supporting such actions.

• SAPs have been ruled to be administrative in nature and, therefore, not the proper subjects for the initiative process.

  • SAPs attempt to change who interprets laws; they do not make new laws. Therefore, SAPs are administrative and not the proper subjects of the initiative petition process.

  • Judge W.D. Cramer ruled6 that the Grant County SAP, measure 12-72,  ran afoul of the initiative petition process under the Oregon Constitution, Article IV, Section 7 which states that petitions can only make new law.

Ceasefire Oregon was disappointed by the bias shown in your statement: “In a state where Democrats in Portland and Salem have used their control over all the major branches of government to push stricter gun laws, giving local officials control over enforcing the laws could gain traction.”

• People throughout the state voted for Democrats, not just in Portland and Salem.

• Your statement shows bias against Portland and Salem, and implies that voters in those cities do not deserve the same voice as voters in other parts of Oregon.

• Democrats have been elected by a majority of the citizens of Oregon. The will of the voters should not be dismissed because the Oregon militias disagree with the outcome of the vote.

• Your statement is biased against those who support effective gun laws. A vast majority of Oregonians, gun owners and non-gun owners alike, support stronger gun laws. In fact, according to a Benenson Strategy Group poll taken in 2015 during consideration of the Oregon Firearm Safety Act (SB 941), 87% of voters including 83% of gun owners supported background checks for firearm sales. The percentage of gun owners who support background checks has only increased throughout the country since 2015. Background checks for gun sales are now supported by 95% or more of gun owners queried in the 2018 Quinnipiac Poll and the November 2017 Gallup Poll.

• The gun violence prevention laws passed since 2015 are also popular. According to a March 2018 Quinnipiac poll, 89% of voters support Extreme Risk Protection Order laws (SB 719)  and 91% support prohibiting convicted stalkers from purchasing or possessing firearms (HB 4145).

• Clearly, voters support strong, effective gun laws and Democratic legislators have been working for years to pass laws that reduce gun violence.

Oregonians need clear and unbiased reporting on this issue. If passed, SAPs will usurp power from the legislative and judicial branches of counties, and leave citizens unsure of the processes of their own government. If a sheriff interprets a law, to whom does a citizen go to enforce a direct violation of that law? Who will have checks on the county sheriff? Will the county sheriff decide to determine the constitutionality of all the cases of the US Supreme Court? Will the sheriff decide to disallow immigration? Abortion? Voting?

The Second Amendment is already well protected by the gun lobbies and the US Supreme Court decisions Heller and McDonald. SAPs are an attempt by militias and the gun lobby to exert power over the executive branch of county and state government. Issues as grave as these deserve accuracy and fairness.

We welcome a discussion with you about this article.

Sincerely,

Penny Okamoto

Executive Director

Ceasefire Oregon

1. The law is well known to at least one of the backers of SAPs, the Oregon Firearms Federation, who used the firearm preemption law (ORS 166.170) in 2011 in a lawsuit that forced Oregon colleges to allow people with concealed carry handgun licenses to carry loaded, hidden guns onto Oregon University System campuses. Now, that group is deliberately flouting the firearm preemption law.

2. “The plain reading of measure 12-72 violates this statute [ORS 166.170] and by definition enters into an area that by law is not of county concern.” Grant County Circuit Case No.18CV19251, Judge W.D. Cramer, Jr., letter ruling, July 29, 2018.

3. https://www.huffingtonpost.com/entry/oregon-county-second-amendment-gun-laws_us_5638fcdee4b027f9b96a4ddc

4. https://www.law.cornell.edu/supct/html/07-290.ZO.html

5. https://www.oyez.org/cases/1996/95-1478

6. “Further [the measure] contains provisions that are not legislative in nature and; therefore, not proper for an initiative by definition.” Grant County Circuit Case No.18CV19251, Judge W.D. Cramer, Jr., letter ruling, July 29, 2018.

7. https://codes.findlaw.com/or/oregon-constitution/or-const-art-iv-sect-1.html

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