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Is Carrying a Concealed -- but Unloaded -- Firearm in Your Car Constitutionally Protected?

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by: Ryan • March 21, 2012 • no comments

Today, the Oregon Court of Appeals -- in a split vote -- upheld the constitutionality (both state and federal) of a city ordinance that prohibits possessing a loaded firearm in a public place within city limits.

The exact language in the ordinance is this:

"It is unlawful for any person to knowingly possess or carry a firearm, in or upon a public place, including while in a vehicle in a public place, recklessly having failed to remove all the ammunition from the firearm."

I am not prepared to do an in-depth analysis of either the majority or the dissent, though I do want to say that opinions like this make it fun to be a lawyer. Nevertheless, I want to make a quickie comparison to a different firearm statute, ORS 166.250, which makes it a crime to knowingly:

(b) [Possess] a handgun that is concealed and readily accessible to the person within any vehicle.

First, let's go back to the State v. Christian opinion. Let me warn in advance that due to the brevity (and arguably superficiality) of the analysis this evening, I am not going to distinguish between federal and state constitutional analysis.

One of the reasons that the majority upheld the city ordinance was the fact that the gun was loaded, which implicates the "inherent consequent risks when the loaded weapon is borne in public."

In constrast, note that ORS 166.250 does not require that the firearm is loaded. To the extent that the gun's loadedness is relevant to the constitutionality of the statute, the distinction favors a finding that ORS 166.250 is unconstitutional.

Turning to the federal constitution, the majority notes the following:

Because we have established that the ordinance is constitutional in almost every situation, it follows a fortiori that it is constitutional in some situations. At the least, it could for example be applied constitutionally to a person who carries a recklessly not-unloaded firearm into a courtroom or school.

Now, I'm not going to pretend that the court couldn't have come up with more examples of firearm behavior that wasn't constitutionally protected than just possession of a loaded gun in a courtroom or school. But nevertheless, a gun that is in a vehicle is by definition not in a courtroom or a school or an airport or a federal building or any other place in which firearm possession isn't constitutionally protected. And, of course, we still have the fact that the state statute doesn't require the firearm is loaded.

So what's left to save the statute from constitutional infirmity? The fact that the statute prohibits a firearm that is (1) concealed and (2) within reach of the person who is charged. And my thought is this: if the constitutional guarantees are rooted in self-defense, (1) isn't having the gun within reach part the right to use the gun to protect yourself? and (2) who would think that having the unloaded gun on the passenger seat or the dash is somehow wiser or safer than having it in the glove box?

Again, I want to stress the superficiality of this analysis, but if you are charged with UPW under ORS 166.250, or you have a client charged with that crime, today's opinion may provide strong reason to contest the charge.