ABA Journal


Constitutional Law

Ban on carrying loaded guns absent a concealed-carry permit is upheld by Oregon supremes

Aug 16, 2013, 01:32 pm CDT


And the gun nuts start screaming in 3...2...1...

By Doodle Dandy on 2013 08 16, 5:09 pm CDT

You are trolling for the wrong fish this time, Doodle. You will not find many supporters of the Second Amendment who claim it grants a wholesale right to carry loaded firearms anywhere at anytime.

In fact my only objection to the Oregon law would be that it grants an exception for "people traveling to target ranges". Carrying a loaded weapon into a target range would get you thrown out of most of them. Having a loaded weapon on the range premises anywhere but on the firing line and only after the range safety officer has instructed you to load is a major safety violation.

By W.R.T. on 2013 08 16, 8:16 pm CDT

Why do we need government permission? The only time the police need to get involved is when a person is hurt. Until that happens, we don't need government to mind our every step. Call an ambulance or call the police if there is an incident. No need for the nanny state.

By Joe on 2013 08 16, 8:57 pm CDT

Were I arguing an ordinance was facially unconstitutional , I would also raise the “as applied” issue at the trial court level .

What is meant by a <b>un</b>loaded ½automatic pistol ?
No round in the chamber but a loaded magazine ?

By Docile Jim Brady – Columbus OH 43209 on 2013 08 16, 9:56 pm CDT

What matters is what 2A says, "shall not be infringed" It can "mean" anything anyone wants it to mean. This is why we have so many problems with freedom today. It means whatever anyone wants it to mean. As such, the concept of the "rule of law" is a mockery because it is not a "rule" but what anyone wants it to mean.
Carrying a loaded firearm is not unreasonable. Doing people crimes, robbery, rape, homicide etc. with it would be unreasonable and should be addressed. The law in this article which prohibits the carrying of a loaded firearm is unreasonable, and wrong.
I find it humorous that certain phobic groups/individuals want a permit to exercise the civil right that is the Second Amendment yet many campaign against voter ID laws. Oh, voting is not within the Bill of Rights. The bottom line is that there are no Constitutional anti gun laws. There are only anti freedom laws in the guise of anti gun laws.

By mark on 2013 08 17, 5:12 pm CDT

The gun nuts did chime in after all, doodle.

By veritas on 2013 08 18, 1:26 am CDT

Comment removed by moderator.

By Name removed by moderator. on 2013 08 18, 3:19 am CDT

we are likely doomed.

By Comment removed by moderator. on 2013 08 18, 3:21 am CDT

There is more to this story as the bag was behind a convenience store counter. What were the police doing there and why were they searching behind the counter? Did the person own the store or just work there? Did the owner prohibit guns? Who called the police?

Typically, even a store is considered private property and a loaded gun is allowed if the owner permits it. If it was behind the counter, that's typically not a "public space". Gun rights aside, this story has a lot of holes in it and the facts as-is do not easily support the ruling.

By JW on 2013 08 18, 11:23 am CDT

You folks should vote with your feet! Who gave your 'authorities' the power to decide which freedoms you give up so THEY can 'manage' your security? That's called Tyranny. Get out, now! Arizona is nice...besides, how long can your state survive if all the pro-gunners moved out-of-state? Let the gun-grabbers pay the extra taxes -- they LOVE paying taxes!

By BlackDog on 2013 08 18, 5:30 pm CDT

And here we have all the 'usual suspects' chiming in!

A couple of random comments to add to the mix -- one commenter (no. 4) logically asks what is meant by a "loaded" semi automatic pistol? Is it loaded if there is no round is in the firing chamber?

Hmm... with no round in the firing chamber, the weapon cannot be fired. So, how would that even possibly be considered a "loaded" pistol? In that configuration, the pistol is no more lethal than any other lump of metal of about the same size. It's use as a weapon would have to be as a club, not as a firearm... so long as no one manually chambered the first round.

Another logical question might be, why was this fellow arrested where (per the article) the ordi-nance prohibits someone who doesn't have a pistol permit from "carrying" a handgun? Since when does the mere possession of a weapon IN ONE'S LUGGAGE constitute "carrying" a pistol? Oregon law clearly does not prohibit mere possession of a pistol (i.e., it's not a banned item, lke heroin for instance). In fact, Heller et al. inform us that possession of a pistol is a Constitutional right, although one which can have some reasonable constraints placed upon it.

So, again, isn't this prosecution a misapplication of the law? More to the point is the following --
would you, Dear Reader, be in violation of the ordinance if you were passing through Portland with a pistol in your luggage? Hmm...

I know nothing of Oregon law in general, and nothing of this ordinance in particular other than what this article tells us, but those would be basic questions to ask before we even raise the Constitutional issues.

Presumably, the ordinance is intended to promote public safety by limiting people actively carrying handguns (in coat pockets, purses, or various holster arrangements) to those specifically licensed to do so. And we can debate the wisdom of that restriction until the cows come home... but what appears to be happening here is overzealous prosecution of someone who had no ready/immediate access to the two pistols in question. Again, remember, the pistols were in a bag, and the bag was behind a store couner -- so again: how did that action, having pistols in an inaccessible piece of luggage, constitute a violation of the ordinance? One can only wonder.

The last question to ask is: where is this prosecution heading us?

Oh, right... back to the ever-so-effective 'guns are evil and must always be banned' view of the issue. That view hasn't worked in Chicago. They have all those gun bans up there and still seem to lead the country in numbers of children being gunned down in the ghettos.

So, the contrary view, that everyone has a right to be armed to fight back against the thugocracy, is now coming into vogue. That counter view, promoting fighting back, is either right or wrong (only time will tell), but the Oregon law's APPLICATION seems to be a retreat to the old knee jerk reaction against anyone having a pistol anytime, any place, for any reason.

By SavannahGuy on 2013 08 19, 1:12 pm CDT

I moved out of that godforsaken state almost 5 years ago to Montana. This is just another confirmation that I made the right choice, good riddance California North.

By Ryan on 2013 08 19, 1:36 pm CDT

The import of this decision is its Second Amendment side. Whether you agree with Oregon's law or not is not of any interest legally.

Those who are wondering about collateral issues should read the opinion. "Loaded" is not an issue because under any definition the weapons were. And it is easily resolved by careful drafting. And he was not a store clerk. Rather, one can infer that he had plans to use these and other weapons for some purpose no one would approve, and had entered the store and stashed them, then went back outside and sat waiting or watching. The police did just what we want them to do - they prevented some crime from happening, and didn't trample on any rights in doing so.

By Walt Fricke on 2013 08 19, 10:14 pm CDT

SavannahGuy says, "[W]ith no round in the firing chamber, the weapon cannot be fired. So, how would that even possibly be considered a “loaded” pistol? In that configuration, the pistol is no more lethal than any other lump of metal of about the same size. It’s use as a weapon would have to be as a club, not as a firearm… so long as no one manually chambered the first round."

Reply: Take a six shot revolver, load in 5-rounds, none in the chamber. All that is required (on a double-action) is to pull the trigger and the gun goes bang. Is that gun useless? Is it considered "loaded?"

I'm pro-gun, so I don't believe there should be very many restrictions regarding guns.

By Daniel on 2013 08 21, 3:07 am CDT

Reply to Daniel, no. 14 above, as well as to Walt Fricke, no. 13 --

IF the case dealt with a revolver, you would both be correct. But the case dealt with two 9mm semi automatic pistols, and the distinction is of critical importance.

Revolvers are not pistols, and pistols are not revolvers... the same as a Mazerati is not a dumptruck, although both may be "motor vehicles."

This again shows how the one-size-fits-all mentality just does not work. "Loaded" presumably means a weapon that is ready to fire. These two semiautomatic pistols were not ready to fire, because semi automatic pistols are rather more complex than the old fashioned revolver. That's the distinction.

It's the bane of draftsmen everywhere, I guess -- facts do matter, and the universal rules HANDED DOWN FROM ON HIGH tend to fall apart in a fact specific context.

Have a good day, fellas.

By SavannahGuy on 2013 08 21, 8:37 pm CDT

#12 -- You are not missed.

By AndytheLawyer on 2013 08 22, 3:02 pm CDT

@16 - You would be missed! All you gun folks, then have no problem with the 5year old in Memphis who brought a loaded gun to school and fired it?

By donniem23 on 2013 08 23, 11:33 am CDT

The next Second Amendment case in front of SCOTUS will involve carry rights in some fashion. Bet on it.

By Tim on 2013 08 23, 1:33 pm CDT

My problem is the corrupt politicians that pass these ordinances always exempt themselves and think they are above the law and our government would love to make the US a Dictatorship and disarm all of us.

By Glen on 2013 08 24, 2:41 am CDT

@12 The folks in Montana aren't so happy with the folks who flee there.

By Doodle Dandy on 2013 08 25, 3:57 am CDT

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