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.
Do you mean to tell me that Diogenes has actually finally found them both???
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’.
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 !!
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...”
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