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Update on the Constitutional Challenge to Possession of a Loaded Firearm

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by: Ryan • October 6, 2012 • no comments

The Oregon Supreme Court granted review last week of State v. Christian, an en banc COA decision from March that (barely) upheld the constitutionality of a Portland firearm ordinance.

I wrote about Christian when the opinion was issued. My focus, however, was not on the quality of the opinion but on applying the analysis to a different firearm misdemeanor, unlawful possession of a weapon, under ORS 166.250. In a fairly superficial post, I asserted the strong likelihood that the state statute was unconstitutional under the Christian analysis. That post can be found here.

Obviously, Christian doesn't have to be overturned for ORS 166.250 to be unconstitutional, but if the Oregon Supreme Court eventually determines that the city code provision at issue in Christian is unconstitutional, it's time to give ORS 166.250 its last rites. The question is, who among us will be responsible for administering the coup de grace?

Per the press release on the grant of review, the questions presented are:

(1) With respect to PCC 14A.60.010(A), which makes it unlawful for any person to "knowingly possess or carry a firearm, in or upon a public place, * * * recklessly having failed to remove all the ammunition from the firearm," what does the adverb "recklessly" modify, i.e., does the ordinance prohibit a person from knowingly possessing or carrying a firearm in a public place when the person is aware of and consciously disregards a substantial and unjustifiable risk that the firearm is loaded?

(2) Does PCC 14A.60.010(A) violate Article I, section 27, of the Oregon Constitution?

(3) Does PCC 14A.60.010(A) violate the Second Amendment to the United States Constitution?