The Oregon Supreme Court issued an important decision for Oregon Gun Rights Lawyers and those interested in protecting their right to keep and bear arms. The decision is an outgrowth of two United States Supreme Court cases decided a few years ago.
In 2008 the United States Supreme Court decided District of Columbia v. Heller, a case in which an out-right weapons ban in Washington D.C. was found to be a violation of the Second Amendment. Then, in 2010 the U.S. Supreme Court decided McDonald v. City of Chicago holding that Chicago’s extremely restrictive gun licensing system violated the Second Amendment. Since then, many have questioned what kinds of restrictions states and municipalities can enact restricting gun ownership and use. The U.S. Supreme Court did not specifically address the question of what level of scrutiny the Court would apply to restrictions on Second Amendment rights.
On the Federal level, the U.S. Supreme Court applies three levels of “scrutiny” to restrictions on constitutional rights. For instance, laws restricting some rights receive “strict scrutiny,” meaning that virtually no restriction will be tolerated. The lowest level of scrutiny is “rational basis” review where the Court allows restrictions that are rationally connected to an legitimate public interest. The “intermediate” level of scrutiny allows restrictions but requires that the public interest the restrictions promote to be compelling and narrowly tailored. Some believe that the Court has indicated that it will apply the intermediate level of scrutiny to Second Amendment restrictions, although the Court has not expressly said so.
In the State of Oregon the right to keep and bear arms is protected by Article 1, Section 27 of the Oregon Constitution. The Oregon Constitution can provide a broader right than the Federal Constitution but cannot be more restrictive than the U.S. Constitution.
The Oregon Supreme Court has now weighed in on what kind of state and local regulations can be enacted that restrict gun rights under the Federal and State Constitutions. On August 15, 2013 the Court decided State of Oregon and City of Portland v. Christian. Mr. Christian was convicted of violating a City of Portland Ordinance which forbids carrying a firearm in public having recklessly failed to unload the firearm. Christian challenged the ordinance, claiming that the ordinance restricted his right to carry a firearm to defend himself, in violation of the Second Amendment and Article 1, Section 27 of the Oregon Constitution.
The Oregon Supreme Court rejected his challenges. The Court held that, under the Oregon Constitution, restrictions on carrying firearms in cities had traditionally been allowed. Under the Second Amendment the Court found that such regulations are linked to an important government interest and that the ordinance survived intermediate level scrutiny. The Second Amendment issue would be eligible for U.S. Supreme Court review, if a Petition for such review is filed and the U.S. Supreme Court accepts the case.
As an Portland Gun Rights Attorney, I believe that we must keep a close eye on new laws that restrict the ability of people to bear arms for self-defense. While the restriction at issue here is not overly burdensome, since law abiding citizens can obtain a permit to carry weapons, other restrictions may trample on the right to bear arms.
By James F. O’Rourke Jr.
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