Odd Interpretation of Portland Gun Carry Ordinance

Last week's State v. Christian (Ore. Ct. App. Mar. 21, 2012) considered a Portland, Oregon that provides,

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 [with a bunch of exceptions, including for people with concealed carry licenses -- Oregon is a shall-issue state].

Jonathan Christian, who was prosecuted for violating the ordinance, challenged it on overbreadth grounds, arguing that it covered a substantial amount of constitutionally protected conduct. (Such challenges are apparently allowed in right to bear arms cases under the Oregon Constitution, much as they are allowed in First Amendment cases.) Oregon courts had in the past recognized that the right to bear arms including a right to carry weapons in public, though an Oregon Court of Appeals decision had upheld a ban on carrying loaded guns in public. And the 4-judge dissent viewed this as a dispute about the right to carry loaded guns in public, concluding that the Oregon Constitution does protect such a right. (Judge Edmonds' dissent, joined by Chief Judge Brewer, goes into this in great detail as a historical matter, concluding that this right was generally recognized in American law at the time the Oregon Constitution was adopted in 1859.)

But the 5-judge majority takes a different approach: The ordinance, the majority says, isn't a ban on loaded carry — it's a ban only on loaded carry that creates a known and substantial risk to the public beyond "a risk that would inhere in using the firearm for the kinds of self-defense, defense of others, or defense of premises that are statutorily justified." As I read this, it probably means that the ordinance doesn't ban most loaded carry at all, but just loaded carry for criminal purposes, or in unusually dangerous ways. And because it reads the ordinance so narrowly, the majority concludes that the ordinance is not unconstitutionally overbroad.

It does seem to me that unjustified carry of a loaded weapon with reckless intent is what the ordinance prohibits, and that the RKBA would provide the ability for law-abiding citizens to do so with defensive intent justified. 

The dispute is about the interpretation of the word "recklessly." The dissenters reason, in my view persuasively, that,

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" [the general Oregon definition of "recklessly" -EV] 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.

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