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.
"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.
There's a phrase you don't see every day.
I despite lawyers and find them feckless turds. Evidence shows they can’t be trusted.
I despite lawyers and find them feckless turds. Evidence shows they can’t be trusted.
I despite lawyers and find them feckless turds. Evidence shows they can’t be trusted.
“a recklessly not-unloaded firearm”
I saw a not unlarge dog chasing a not unfast rabbit through a not ungreen meadow.
So in Portland you can walk around with an unloaded weapon and make believe you work at the Egyptian Embassy..... GREAT!!! /s
“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.”
What about the honest lawyers? You owe both an apology.
Let's sing `Oregon, My Oregon.' Beavis, Butthead. Ohkayyyy?
Honest lawyers?
He has to apologize to both of them?
Are they also going to check criminals to make sure their weapons are not loaded? Conservative minds would like to know.
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”).
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...
Say what you will about ‘em, lawyers do tend to be babe magnets/s;)
“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.
just don’t chamber the first round, you’ll be okay..
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