concluding that defendant challenged the ordinance facially
How later courts described this case
- concluding that defendant challenged the ordinance facially
Written by the judges who cited it.
The opinion
ARMSTRONG, J.,
dissenting.
The majority tries but fails to identify a plausible interpretation of the Portland ordinance that differs from the one that Judge Edmonds has identified in his dissent. Stated simply, and subject to exceptions that are not relevant to this case, the ordinance prohibits a person from knowingly carrying a firearm in a public place in Portland that the person has recklessly failed to unload. In context, the reference to a reckless failure to unload the firearm describes circumstances in which the person “is aware of and consciously disregards a substantial and unjustifiable risk” that the firearm is loaded. In other words, the person carries the firearm notwithstanding a substantial risk that it is loaded and under circumstances in which the person’s contrary belief is unjustified. 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. It is evident that the city sought to draw such a distinction in enacting its ordinance. The majority’s effort to construct a different understanding of the ordinance is understandable but unavailing.
So understood, I have no difficulty concluding that the ordinance violates Article I, section 27, of the Oregon Constitution, which guarantees to people the right to bear arms for personal defense. 1 Judge Edmonds has produced a *13 comprehensive analysis of the history behind the adoption of Oregon’s constitutional guarantee of the right to bear arms. In light of that history, I have no doubt that a restriction that prohibits most people from openly carrying a loaded firearm in all places open to the public, as Portland’s ordinance does, violates the Oregon guarantee. I also have no doubt that there are restrictions on the manner and locations in which people can carry loaded firearms that the state and local governments may impose without violating the Oregon guarantee. Our task in this case, however, is not to identify permissible governmental restrictions on the carrying of loaded firearms in public but to determine whether the Portland ordinance violates the Oregon guarantee. I am satisfied that it does, and I therefore dissent from the majority’s contrary conclusion.
Brewer, C. J., Nakamoto, J., and Edmonds, S. J., join in this dissent.
Article I, section 27, of the Oregon Constitution provides:
“The people shall have the right to bear arms for the defence [sic] of themselves and the State, but the Military shall be kept in strict subordination to the civil power[.]”