I N I T I A T I V E P E T I T I O N

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OFFICE OF THE SECRETARY OF STATE ELECTIONS DIVISION DENNIS RICHARDSON SECRETARY OF STATE LESLIE CUMMINGS, PhD DEPUTY SECRETARY OF STATE STEPHEN N.

1 OFFICE OF THE SECRETARY OF STATE ELECTIONS DIVISION DENNIS RICHARDSON SECRETARY OF STATE LESLIE CUMMINGS, PhD DEPUTY SECRETARY OF STATE STEPHEN N. TROUT DIRECTOR 255 CAPITOL STREET NE, SUITE 501 SALEM, OREGON (503) I N I T I A T I V E P E T I T I O N The Elections Division received a certified ballot title from the Attorney General on October 24, 2018, for Initiative Petition , proposed for the November 3, 2020, General Election. Caption Amends Constitution: Creates constitutional right to possess, use, transfer semiautomatic, other firearms. Limits new firearm regulations. Retroactive. Chief Petitioners Sharon Preston 3435 NW Dogwood Ave Redmond, OR Carlyan Castellano 6213 SW Beaverton Hillsdale Hwy #204 Portland, OR Appeal Period Any registered voter, who submitted timely written comments on the draft ballot title and is dissatisfied with the certified ballot title issued by the Attorney General, may petition the Oregon Supreme Court to review the ballot title. If a registered voter petitions the Supreme Court to review the ballot title, the voter must notify the Elections Division by completing and filing form SEL 324 Notice of Ballot Title Challenge. If this notice is not timely filed, the petition to the Supreme Court may be dismissed. Appeal Due November 7, 2018 How to Submit Appeal Refer to Oregon Rules of Appellate Procedure, Rule or contact the Oregon Supreme Court for more information at Notice Due 1 st business day after appeal filed with Supreme Court, 5 pm How to Submit Notice Scan and irrlistnotifier.sos@state.or.us Fax: Mail: 255 Capitol St NE Ste 501, Salem OR More information, including the certified ballot title and the Secretary of State's determination that the proposed initiative petition is in compliance with the procedural requirements established in the Oregon Constitution for initiative petitions, is contained in the IRR Database available at

ELLEN F. ROSENBLUM Attorney General FREDERICK M. BOSS Deputy Attorney General DEPARTMENT OF JUSTICE APPELLATE DIVISION October 24, 2018 Stephen N.

3 ELLEN F. ROSENBLUM Attorney General FREDERICK M. BOSS Deputy Attorney General DEPARTMENT OF JUSTICE APPELLATE DIVISION October 24, 2018 Stephen N. Trout Director, Elections Division Office of the Secretary of State 255 Capitol St. NE, Ste. 501 Salem, OR Re: Proposed Initiative Petition Amends Constitution: Creates Constitutional Right to Possess, Use, Transfer Semiautomatic, Other Firearms. Limits New Firearm Regulations. Retroactive DOJ File #BT-08-18; Elections Division # Dear Mr. Trout: We have received comments submitted in response to the draft ballot title for prospective initiative petition # Comments were received from attorney Greg Chaimov on behalf of Henry Wessinger and Paul Kemp; from attorney Steven Berman on behalf of Erica Vaughan and Joshua Friedlein; from attorney Eric Winters on behalf of Chief Petitioner Sharon Preston; and from Margaret Olney on behalf of Penny Okamoto, Joanne Skirving, and Elizabeth McKanna. We note that each of the commenters included information about the scope of Article I, section 27 of the Oregon Constitution as it currently reads, but there was substantial disagreement among them as to what weapons are protected by that provision. Mr. Chaimov also asserts that the prospective measure violates the single amendment provision of the Oregon Constitution. Resolution of that issue is beyond the scope of this letter. See OAR (providing for separate review process by Secretary of State to determine whether measure complies with constitutional procedural requirements for proposed initiative measures). Accordingly, we do not address them here. We note that some comments do not challenge the draft ballot title but, rather, state support or opposition to the proposed measure. We note that the Attorney General s role in the process of drafting the ballot title is to prepare an impartial ballot title that complies with ORS The comments on a draft ballot title are an important part of that process, pointing out flaws or nuances that may not be readily apparent. The end result, the certified ballot title, is intended to provide fair and accurate information to voters so that informed choices can be made Court Street NE, Salem, OR Telephone: (503) Fax: (503) TTY: (800)

4 Page 2 This letter summarizes the comments we received regarding the draft ballot title, our responses to those comments, and the reasons we did or did not make changes to the ballot title in light of the submitted comments. ORAP 11.30(6) requires this letter to be included in the record in the event that the Oregon Supreme Court reviews the ballot title. We also enclose a copy of the certified ballot title. A. The Caption The ballot title must include [a] caption of not more than 15 words that reasonably identifies the subject matter of the state measure. ORS (2)(a). The subject matter is the actual major effect of a measure or, if the measure has more than one major effect, all such effects (to the limit of the available words). Lavey v. Kroger, 350 Or 559, 563, 258 P3d 1194 (2011). To identify the actual major effect of a measure, the Attorney General must consider the changes that the proposed measure would enact in the context of existing law. Rasmussen v. Kroger, 350 Or 281, 285, 253 P3d 1031 (2011). The draft caption provides: Amends Constitution: Right to bear arms includes possession, use, transfer of firearms/accessories currently allowed; limits regulation Each of the commenters asserts that the draft caption is flawed. Mr. Chaimov asserts that the draft caption does not state how the prospective measure would change current law, but merely paraphrases the language of the measure. In addition, he asserts that the caption should point out ambiguities in the measure. Further, he notes that the measure would place restrictions on the current ability of government to regulate weapons and impose liability for their use. The caption does not capture that aspect of the measure. Finally, he notes that federal law will control what is legal for civilian use. Mr. Chaimov also asserts that the right to bear arms is a slogan that elicits an emotional response and should not be used. Mr. Berman and Ms. Olney make similar remarks. Both note that the effect of the measure would be to greatly expand the classes of firearms protected from regulation and limit authority to regulate firearms to protect public safety. Both also note that the proposed measure has retroactive effect, undoing a law passed by the legislature in 2018 relating to the boyfriend loophole. Both Mr. Berman and Olney argue that the right to bear arms should not be used. Mr. Winters proceeds on very different assumptions about the current constitutional provision and the effect of the proposed measure. Relying on federal cases, he assumes that the Oregon Constitution already provides protection for modern firearms, including semi-automatic weapons, that are legal for civilian use. As is further explained below, this is not the case. With regard to the retroactive effect of the law, he posits that the measure is intended to protect against statutory changes that may occur after July 1, He also notes that the measure has no effects on accessories, but only on magazines of the type used in firearms currently lawful for

5 Page 3 civilian use. He does agree with the other commenters that the phrase right to bear arms is unhelpful. Mr. Winters also assumes that the measure s protections against unreasonable burdens on currently available common firearms and the imposition of liability are encompassed in the original constitutional protection. This overstates the interpretation of the language by Oregon courts. Mr. Winters also suggest the use of the term common firearms for self-defense in the caption. Although this phrase may have first been used in a court opinion, it appears to be a loaded phrase with currency among some advocates for an expansive interpretation of the Second Amendment to the United State Constitution. Accordingly, it is best avoided. Both the Oregon Supreme Court and the Oregon Court of Appeals have opined about the application of Article I, section 27. Arms under that provision refers not only to firearms but also to the defensive weapons in use at the time of statehood, such as billyclubs or knives. See, e.g., State v. Kessler,289 Or 359, 614 P2d 94 (1980). As to firearms, the state can restrict individuals who pose a danger to public safety from having weapons, State v. Hirsch/Friend, 338 Or 622, 114 P3d 1104 (2005), as well as the manner of possession of firearms. State v. Christian, 354 Or 22, 29, 307 P3d 429 (2013). The drafters of the Oregon Constitution did not intend to deprive the legislature of the authority to specifically regulate the manner of possession or use of arms when it determines that such regulation is necessary to protect public safety, including, for example, the enactment of a prohibition on the carrying of concealed weapons or a restriction on the possession of arms by felons as members of a group whose prior conduct demonstrated an identifiable threat to public safety. Id. at 31. Kessler also spoke to the kind of firearms encompassed within the constitutional guarantee: The revolutionary war era ended at a time when the rapid social and economic changes of the so-called Industrial Revolution began. The technology of weapons and warfare entered an unprecedented era of change. P. Cleator, Weapons of War (1967). Firearms and other hand-carried weapons remained the weapons of personal defense, but the arrival of steam power, mechanization, and chemical discoveries completely changed the weapons of military warfare. The development of powerful explosives in the mid-nineteenth century, combined with the development of mass-produced metal parts, made possible the automatic weapons, explosives, and chemicals of modern warfare. P. Cleator, Weapons of War (1967). These advanced weapons of modern warfare have never been intended for personal possession and protection. When the constitutional drafters referred to an individual's right to bear arms, the arms used by the militia and for personal protection were basically the same weapons. Modern weapons used exclusively by the military are not arms which are commonly possessed by individuals for defense, therefore, the term arms in the constitution does not include such weapons.

6 Page 4 If the text and purpose of the constitutional guarantee relied exclusively on the preference for a militia for defense of the State, then the term arms most likely would include only the modern day equivalents of the weapons used by colonial militiamen. The Oregon provision, however, guarantees a right to bear arms for defense of themselves, and the State. The term arms in our constitution therefore would include weapons commonly used for either purpose, even if a particular weapon is unlikely to be used as a militia weapon. Kessler, 289 Or 359. Mr. Winters assumes that modern day equivalents of the weapons used by colonial militiamen includes semi-automatic weapons that are legal for civilian ownership. The Oregon Court of Appeals specifically foreclosed that argument in Oregon State Shooting Assn. v. Multnomah County, 122 Or App 540, 855 P (1993), rev den 319 Or 273 (1994). Relying on the opinion of the Supreme Court in State v. Delgado, 298 Or 395, , 692 P2d 610 (1984), the Court of Appeals held that the determination of what weapons come within the constitutional provision encompasses consideration of whether the drafters would have intended the constitutional protection to apply if they had envisioned the technological advancements and the reasons for which those advancements were made. 122 Or App at 547. The court also noted that the weapons in use at the time that the constitution was drafted did not include repeating firearms. 1 The court concluded that semi-automatic firearms are not within the protection of arms for self-defense encompassed by Art. I, section 27. It follows that such weapons could lawfully be banned in Oregon, at least insofar as that provision of the constitution is concerned, to the extent that was found to be in furtherance of public safety. The fact that such weapons are not currently regulated does not mean that they could not, in future, be regulated. Thus, the proposed measure does expand the scope of the original constitutional provision, as argued by Messrs. Berman and Chaimov and by Ms. Olney. We certify the following caption: Amends Constitution: Creates constitutional right to possess, use, transfer semiautomatic, other firearms. Limits new firearm regulations. Retroactive. B. The Yes and No Vote Result Statements We next consider the draft yes and no vote result statements. A ballot title must include [a] simple and understandable statement of not more than 25 words that describes the result if the state measure is approved. ORS (2)(b). The yes 1 The repeating rifle was developed in 1860, after Oregon s statehood, and its first use was as a military weapon during the Civil War. See Rose, American Rifle: A Biography at 109, (New York 2008).

7 Page 5 vote result statement should identify the most significant and immediate effects of the measure. Novick/Crew v. Myers, 337 Or 568, 574, 100 P3d 1064 (2004). The draft yes vote result statement provides: Result of Yes Vote: Yes vote amends constitutional right to bear arms: includes possession, use, transfer of guns/accessories currently allowed for civilians. Limits government regulation of firearms/accessories. A ballot title also must include [a] simple and understandable statement of not more than 25 words that describes the result if the state measure is rejected. ORS (2)(c). The no vote result statement should address the substance of current law on the subject matter of the proposed measure and summarize the current law accurately. McCann v. Rosenblum, 354 Or 701, 707, 320 P3d 548 (2014) (quoting Novick/Crew, 337 Or at 577) (emphasis added in Novick/Crew; alterations omitted). The draft no vote result statement provides: Result of No Vote: No vote retains current constitutional provision protecting the right to bear arms for self-defense or for defense of the state. Each of the commenters repeats the criticisms raised as to the caption. In addition, Mr. Chaimov argues that the yes statement should include reference to those provisions of the measure that prevent the imposition of unreasonable burdens or special liabilities on gun owners. Word limits prevent the inclusion of those concepts, which are included in the summary. We certify the following yes statement: Result of Yes Vote: Yes vote creates constitutional right to possess, use, transfer semiautomatic, other firearms currently allowed by federal statutes; nullifies 2018 domestic abuser restriction; limits new regulations. All commenters re-raise the same issues as to the no result statements. In consideration of those comments, we certify the following no statement: Result of No Statement: No vote retains current constitutional protections for arms similar to those used for self-defense at statehood, including some firearms; allows regulations protecting public safety. As revised, we certify the result statements. C. The Summary We next consider the draft summary. A ballot title must include [a] concise and impartial statement of not more than 125 words summarizing the state measure and its major effect. ORS (2)(d). The purpose of a ballot title s summary is to give voters enough information to understand what will happen if the initiative is adopted. McCann, 354 Or at 708. The draft summary provides:

8 Page 6 Summary: Oregon constitution currently protects people s right to bear arms for the defence of themselves, and the State. Proposed measure amends that right to specifically include acquisition, possession, use, transfer of guns, ammunition and magazines that, on July 1, 2018, were not subject to civilian purchase restrictions beyond mandatory background checks. Right does not apply to devices restricted under federal law, or devices designed to enable automatic fire. Measure limits state, local authority to regulate firearms, ammunition and magazines. Government retains existing authority to restrict public use or carry, and to regulate acquisition, use, possession by: minors; those with felony arrests or convictions; those subject to restraining orders; those who pose serious risk to others; those prohibited under federal law; certain mentally ill individuals. Other provisions. In addition to the comments already discussed, Mr. Chaimov also objects to the inclusion of the provisions of law that will remain the same under the proposed measure, rather than pointing out the large changes to existing law that the measure would make. Similarly, Mr. Berman criticizes the treatment of the current scope of the constitutional provision; the ways in which that scope would expand; the limits that the measure would place on new regulations; and the omission of retroactive effect in the current summary. He also echoes Mr. Chaimov s argument that the proposed measure restricts regulation rather than retaining existing regulation. Ms. Olney expresses the same concerns. These comments are well taken, and we have revised the caption accordingly. Mr. Winters also repeats his earlier comments, and notes that the inclusion of ammunition in the summary is erroneous. We agree and have eliminated that reference. We certify the following summary: Summary: Amends constitution. The Oregon Constitution currently protects arms similar to those used for self-defense in 1859, including some firearms. State and local governments may regulate firearm ownership and use, in order to protect public safety. Proposed measure creates constitutional right to possess, use, transfer semiautomatic and functionally similar firearms that are currently available for civilian purchase under federal statutes. Measure retains existing firearm restrictions for some classes of individuals, including felons, but nullifies state restriction against possession by some domestic abusers that became effective July 1, Future regulations may not place unreasonable burdens or special liabilities (undefined) on acquisition of firearms that are the subject of the measure, or on keeping such firearms in readily available operable state. Other provisions.

9 Page 7 As revised, we certify the attached ballot title. Sincerely, /s/ Denise G. Fjordbeck Denise G. Fjordbeck Attorney-in-Charge Civil/Administrative Appeals denise.fjordbeck@doj.state.or.us Enclosure Sharon Preston 3435 NW Dogwood Ave Redmond, OR Steven C. Berman 209 SW Oak Street Ste 500 Portland, OR Carlyan Castellano 6213 SW Beaverton Hillsdale Hwy #204 Portland, OR Eric C. Winters SW Magnolia Ave Wilsonville, OR Gregory A. Chaimov 1300 SW Fifth Ave Ste 2400 Portland, OR Margaret S. Olney 210 SW Morrison St Ste 500 Portland, OR 97204

10 Certified by Attorney General on October 24, /s/ Denise G. Fjordbeck Assistant Attorney General BALLOT TITLE Amends Constitution: Creates constitutional right to possess, use, transfer semiautomatic, other firearms. Limits new firearm regulations. Retroactive. Result of Yes Vote: Yes vote creates constitutional right to possess, use, transfer semiautomatic, other firearms currently allowed by federal statutes; nullifies 2018 domestic abuser restriction; limits new regulations. Result of No Vote: No vote retains current constitutional protections for arms similar to those used for self-defense at statehood, including some firearms; allows regulations protecting public safety. Summary: Amends constitution. The Oregon Constitution currently protects arms similar to those used for self-defense in 1859, including some firearms. State and local governments may regulate firearm ownership and use, in order to protect public safety. Proposed measure creates constitutional right to possess, use, transfer semiautomatic and functionally similar firearms that are currently available for civilian purchase under federal statutes. Measure retains existing firearm restrictions for some classes of individuals, including felons, but nullifies state restriction against possession by some domestic abusers that became effective July 1, Future regulations may not place unreasonable burdens or special liabilities (undefined) on acquisition of firearms that are the subject of the measure, or on keeping such firearms in readily available operable state. Other provisions.

I N I T I A T I V E P E T I T I O N

I N I T I A T I V E P E T I T I O N OFFICE OF THE SECRETARY OF STATE ELECTIONS DIVISION DENNIS RICHARDSON SECRETARY OF STATE LESLIE CUMMINGS, PhD DEPUTY SECRETARY OF STATE STEPHEN N. TROUT DIRECTOR 255 CAPITOL STREET NE, SUITE 501 SALEM,