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Court Upholds Portland's Loaded Firearm Ban(OR)
courthousenews.com ^ | 24 September, 2012 | LORRAINE BAILEY

Posted on 09/24/2012 8:02:45 PM PDT by marktwain

(CN) - A sharply divided Oregon appeals court upheld Portland's ban on carrying loaded firearms in public, affirming a lower court's conviction of city resident on a pair of concealed weapons charges.

Jonathan Christian was charged with carrying a concealed firearm without a permit, in violation of Oregon law, and of carrying a loaded firearm in a public place, in violation of a Portland ordinance.

The district court convicted him on both counts, despite Christian's demurrer that the laws violated the Second Amendment.

On appeal, the Oregon Court of Appeals affirmed the lower court's decision, and re-affirmed it en banc, finding that the Portland ordinance does not prohibit carrying all loaded firearms, only loaded firearms that recklessly endanger the public.

"A violation of the ordinance occurs when a person (1) possesses or carries a loaded firearm in a public place; (2) knows that he or she is carrying or possessing the loaded firearm and that the place is public; (3) recklessly does so anyway, that is, is aware of the fact that carrying the loaded firearm in public creates an unreasonable, unjustifiable risk; and (4) nonetheless consciously disregards that risk and bears the firearm in a public place anyway," Judge John Wittmayer said, writing for the court.

"It does not prohibit a person with a permit to carry concealed weapons from knowingly carrying a recklessly not-unloaded firearm in a public place. It does not prohibit a person from carrying a recklessly not-unloaded weapon in a public place in order to engage in justified conduct - reasonable defense of self against felonious attack," the judge continued.

The court majority's opinion was predicated on its interpretation of the ordinance's use of the word "recklessly."

"Defendant (and the dissent) under-appreciate the effect of the term 'recklessly,' apparently contending that it refers only to the isolated act of not unloading the firearm, as opposed to that act and its inherent consequent risks when the loaded weapon is borne in public. That interpretation makes no sense logically or syntactically. It would result in a rule that prohibits carrying a loaded firearm in public, having at some point been aware of and consciously disregarding the risk that not unloading the firearm creates a significant, unreasonable, and unjustifiable risk of . . . a loaded firearm."

Judge Rex Armstrong found the majority's interpretation of the ordinance implausible. "So understood, the ordinance distinguishes between a gang member who carries a gun that another gang member has asked the person to carry to patrol the gang's purported territory and a person who carries a gun to a shooting range that the person's parent has said is unloaded," Armstrong wrote in his dissent.

In a separate dissent, Judge Walter Edmonds found that the court's interpretation of the ordinance was never raised by the City of Portland's defense.

"The city's interpretation of its own ordinance constitutes a blanket prohibition outlawing every circumstance of possessing a loaded firearm in a public place subject to the exemptions listed in the ordinance ..."

"The court has no authority to rewrite the city's ordinance by judicial fiat ... [or] to create its own interpretation of the ordinance in the circumstance of a constitutional challenge to an existing ordinance," Edmonds said.


TOPICS: Constitution/Conservatism; Government; News/Current Events; US: Oregon
KEYWORDS: banglist; court; loaded; or
Wise freepers may come up with a logical rational to uphold this law. If the city says carrying any loaded firearms is reckless, does it make sense that the appeals court is saying that "reckless" is a separate element from loaded?
1 posted on 09/24/2012 8:02:52 PM PDT by marktwain
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To: marktwain
"It does not prohibit a person with a permit to carry concealed weapons from knowingly carrying a recklessly not-unloaded firearm in a public place. It does not prohibit a person from carrying a recklessly not-unloaded weapon in a public place in order to engage in justified conduct - reasonable defense of self against felonious attack," the judge continued.



2 posted on 09/24/2012 8:09:55 PM PDT by Chode (American Hedonist - *DTOM* -ww- NO Pity for the LAZY)
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To: marktwain
a recklessly not-unloaded firearm

There's a phrase you don't see every day.

3 posted on 09/24/2012 8:12:01 PM PDT by Sherman Logan (Perception wins all the battles. Reality wins all the wars.)
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To: marktwain

I despite lawyers and find them feckless turds. Evidence shows they can’t be trusted.


4 posted on 09/24/2012 8:14:27 PM PDT by King_Corey (www.kingcorey.com -- OpenCarry.org)
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To: marktwain

I despite lawyers and find them feckless turds. Evidence shows they can’t be trusted.


5 posted on 09/24/2012 8:14:34 PM PDT by King_Corey (www.kingcorey.com -- OpenCarry.org)
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To: King_Corey

I despite lawyers and find them feckless turds. Evidence shows they can’t be trusted.


I admire the lawyers on the other side, who are preparing the appeal briefs to the state supreme court.


6 posted on 09/24/2012 8:16:03 PM PDT by Atlas Sneezed (Hold My Beer and Watch This!)
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To: marktwain

7 posted on 09/24/2012 8:16:59 PM PDT by tumblindice (America's founding fathers: all armed conservatives)
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To: Sherman Logan

“a recklessly not-unloaded firearm”

I saw a not unlarge dog chasing a not unfast rabbit through a not ungreen meadow.


8 posted on 09/24/2012 8:22:52 PM PDT by tumblindice (America's founding fathers: all armed conservatives)
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To: marktwain

9 posted on 09/24/2012 8:30:40 PM PDT by Delta 21 (Oh Crap !! Did I say that out loud ??!??)
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To: marktwain

So in Portland you can walk around with an unloaded weapon and make believe you work at the Egyptian Embassy..... GREAT!!! /s


10 posted on 09/24/2012 8:37:21 PM PDT by TsonicTsunami08
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To: marktwain
My high school classmate wrote the dissent, but I haven't a clue what it means! But Rex was like that. He famously wrote for the majority in the infamous Oregon “live on-stage sex” case and has been dining with Christie Hefner ever since after getting an award from Playboy for it (what a name dropper).

“Judge Rex Armstrong found the majority's interpretation of the ordinance implausible. ‘So understood, the ordinance distinguishes between a gang member who carries a gun that another gang member has asked the person to carry to patrol the gang's purported territory and a person who carries a gun to a shooting range that the person's parent has said is unloaded,’ Armstrong wrote in his dissent.”

11 posted on 09/24/2012 8:45:39 PM PDT by Seizethecarp
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To: King_Corey

What about the honest lawyers? You owe both an apology.


12 posted on 09/24/2012 8:45:57 PM PDT by The_Media_never_lie (Actually, they lie when it suits them! The crooked MS media must be defeated any way it can be done!)
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To: Delta 21
Let's sing `Oregon, My Oregon.' Beavis, Butthead. Ohkayyyy?
13 posted on 09/24/2012 8:48:53 PM PDT by tumblindice (America's founding fathers: all armed conservatives)
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To: The_Media_never_lie

Honest lawyers?

He has to apologize to both of them?


14 posted on 09/24/2012 9:16:46 PM PDT by Emperor Palpatine ("On the ascent of Olympus, what's a botched bar or two?" -Artur Schnabel)
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To: marktwain

Are they also going to check criminals to make sure their weapons are not loaded? Conservative minds would like to know.


15 posted on 09/24/2012 9:20:36 PM PDT by Rembrandt (Part of the 51% who pay Federal taxes)
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To: marktwain

http://www.scotusblog.com/wp-content/uploads/2008/06/07-290.pdf

Page 57:
See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A statute which, under the pretence of regulating, amounts
to a destruction of the right, or which requires arms to be
so borne as to render them wholly useless for the purpose
of defence, would be clearly unconstitutional”).


16 posted on 09/24/2012 9:32:10 PM PDT by tumblindice (America's founding fathers: all armed conservatives)
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To: marktwain

So I can carry my nine with say 14 rounds in it. The magazine capacity is 15. So it wouldn’t be loaded, just partially loaded... Probably too fine a distinction for Portland’s finest...


17 posted on 09/24/2012 9:46:34 PM PDT by ThunderSleeps (Stop obama now! Stop the hussein - insane agenda!)
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To: Seizethecarp

Say what you will about ‘em, lawyers do tend to be babe magnets/s;)


18 posted on 09/24/2012 10:07:43 PM PDT by Frank_2001
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To: Frank_2001

“Say what you will about ‘em, lawyers do tend to be babe magnets/s;)”

Judge Rex Armstrong has been more of a “baby magnet” having adopted 13 Chinese orphan babies and children at last count, many of whom have disabilities. He claims to be an atheist, but has a big heart.


19 posted on 09/24/2012 10:15:06 PM PDT by Seizethecarp
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To: Sherman Logan

just don’t chamber the first round, you’ll be okay..


20 posted on 09/24/2012 10:42:06 PM PDT by Schwaeky (The Republic--Shall be reorganized into the first American EMPIRE, for a safe and secure Society!)
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To: Emperor Palpatine
Honest lawyers?

He has to apologize to both of them?

Do you mean to tell me that Diogenes has actually finally found them both???

21 posted on 09/25/2012 12:55:27 AM PDT by Swordmaker (This tag line is a Microsoft insult free zone... but if the insults to Mac users continue...)
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To: marktwain

Well, I guess the people of Portland can use their unloaded guns as throwing weapons. If accosted by a murderer or criminal that is going to do you in.....simply pull your gun out, check to make sure it is unloaded and then take a might heave and throw it at them.

That will teach em’.


22 posted on 09/25/2012 2:42:46 AM PDT by DH (Once the tainted finger of government touches anything the rot begins)
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To: ThunderSleeps

I do believe that having a full magazine but one not in the pipe would be considered a “recklessly not-unloaded weapon”.

Cocked & Locked BUMP !!


23 posted on 09/25/2012 5:08:26 AM PDT by Delta 21 (Oh Crap !! Did I say that out loud ??!??)
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To: marktwain

My HS classmate, Judge Rex Armstrong, was interested to see this article you posted highlighing his dissent when I cross-posted it on our class site. He did a further search and was surprised to find that well-known Professor Volokh of the Volokh Consiracy blog wrote up the case and agrees with his dissent.

http://www.volokh.com/2012/03/27/odd-interpretation-of-portland-gun-carry-ordinance/

“The dispute is about the interpretation of the word “recklessly.” The dissenters reason, in my view persuasively...”


24 posted on 09/25/2012 5:58:47 PM PDT by Seizethecarp
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