changing or's chl law?

mkwerx · Dec 21, 2012

How much traction would there be to change oregon chl law into a concealed weapon law that would allow the carry of non firearm weapons like other states allow ie: batons, blades, etc. Weapons that are currently illegal to carry either openly or concealed with few exceptions.

just dan · Dec 21, 2012

my take on it, in this political climate? i doubt much traction. opening for change could also turn out bad... don't rock the boat, kinda thing.

now out of curiosity i'm wondering what is illegal to carry.

mkwerx · Dec 21, 2012

Certain types of knives, for one. The law can also be read to apply to batons/clubs/saps, nunchucks, swords, or really any weapon that is NOT a firearm or pocket knife.

From Oregonlaws.org

66.240¹
Carrying of concealed weapons

(1) Except as provided in subsection (2) of this section, any person who carries concealed upon the person any knife having a blade that projects or swings into position by force of a spring or by centrifugal force, any dirk, dagger, ice pick, slungshot, metal knuckles, or any similar instrument by the use of which injury could be inflicted upon the person or property of any other person, commits a Class B misdemeanor.

Nothing in subsection (1) of this section applies to any peace officer as defined in ORS 133.005 (Definitions for ORS 133.005 to 133.400 and 133.410 to 133.450), whose duty it is to serve process or make arrests. Justice courts have concurrent jurisdiction to try any person charged with violating any of the provisions of subsection (1) of this section. [Amended by 1977 c.454 §1; 1985 c.543 §2; 1989 c.839 §21; 1999 c.1040 §15]

Notes of Decisions

This sec*tion is not unconstitu*tionally vague as construed, and prohibits the concealed carrying of nunchaku sticks. State v. Tucker, 28 Or App 29, 558 P2d 1244 (1977), Sup Ct review denied

Sportmans knife with three and one-half inch blade which folded manually into handle but locked when fully open was ordinary pocketknife under any construc*tion of this sec*tion. State v. Pruett, 37 Or App 183, 586 P2d 800 (1978)

Word, ordinary in this sec*tion modifying word, pocketknife was unconstitu*tionally vague, so statute was construed to prohibit carrying of any knife other than a pocketknife; modifying City of Portland v. Elston, 39 Or App 125, 591 P2d 406 (1979). State v. Harris 40 Or App 317, 594 P2d 1318 (1979)

Pocketknife, within meaning of this sec*tion, included a folding blade 4 and 3/4 inches in length. State v. Strong, 41 Or App 665, 598 P2d 1254 (1979)

Weapon (knife) concealed in vehicle, rather than on defendants per*son was not concealed about his per*son within meaning of this sec*tion. State v. Crumal, 54 Or App 41, 633 P2d 1313 (1981)

Because switchblade is type of pocketknife and it is not illegal under this sec*tion to carry concealed pocketknife, it cannot be illegal to carry concealed switchblade. State v. Ramer, 65 Or App 480, 671 P2d 723 (1983)

Where defendant was indicted and convicted for carrying concealed about his per*son a six inch Survival Knife, not an ordinary pocketknife, this sec*tion, as applied to facts, was not unconstitu*tionally vague and overbroad. State v. Witherbee, 79 Or App 36, 717 P2d 661 (1986)

In order to save this sec*tion from constitu*tional vagueness challenge, it must be construed to require that concealed weapon be similar to one of objects enumerated in sec*tion and designed or intended for use as weapon. State v. Boswell, 88 Or App 344, 745 P2d 436 (1987)

Knife carried openly in sheath on belt is not concealed. State v. Johnson, 96 Or App 166, 772 P2d 426 (1989)

Statute regulating only manner of pos*ses*sion not constitu*tional right to possess switchblade knife being reasonably related to public safety, does not violate Article I, sec*tion 27 of Oregon Constitu*tion. State v. Smoot, 97 Or App 255, 775 P2d 344 (1989)

This sec*tion was amended in 1985 to exclude reference to carrying a concealed knife in absence of any intended unlawful use against per*son. City of Portland v. Lodi, 308 Or 468, 782 P2d 415 (1989)

Defendant did not violate this sec*tion in carrying switchblade knife while handcuffed and removed from home by of*fi*cers executing arrest warrant. State v. Stevens, 113 Or App 429, 833 P2d 318 (1992)

Knife is dirk or dagger or similar instru*ment only if designed specifically for stabbing. State v. McJunkins, 171 Or App 575, 15 P3d 1010 (2000)

Weapon is concealed if not readily identifiable as weapon or if per*son at*tempts to obscure fact per*son is carrying weapon. State v. Turner, 221 Or App 621, 191 P3d 697 (2008)

Instru*ment means any item designed and intended to inflict injury on per*son or prop*erty of an*oth*er. State v. Ruff, 229 Or App 98, 211 P3d 277 (2009), Sup Ct review denied
Chapter 166
Law Review Cita*tions

51 OLR 427-637 (1972); 69 OLR 169 (1990)

mpmax · Dec 21, 2012

Not going to happen. If any change comes from this legislature it will be to restrict where you can carry....Schools, State Office buildings, Bars. Maybe even put a criminal penalty on disregarding a no firearms sign posted on a business.
We are knee deep in a gun hating democratic state that's serving cake and bubblegum, and they just ran out of cake.

mkwerx · Dec 21, 2012

Basically, we can legally carry a concealed firearm in Oregon, but the 2nd Amendment doesn't specifically state Firearms - it says right to bear arms. Arms = weapons. Weapons includes knives/swords/clubs etc. It seems strange to me that I can legally carry an AR-15 pistol if I so chose, but would be committing a misdemeanor to conceal a fixed blade knife (which would be considered a "dirk" or "dagger" under the law) or an expandable baton. A gun is not always the best choice of weapon to defend yourself with, and it would be nice to have legal options.

One reason I've thought about this again is exactly the political climate we face. We are facing bans on semi autos and certain accessories on state and federal levels. The more radical ones are pushing for complete bans. I agree that it is unlikely that we will see total ban on gun ownership pass - it's always at the fringe of possibility.

Firearms owners, in large, seem to forget that the 2A is about more than guns. Our law makers in Salem also forget that fact.

Other states specifically allow the carry of non-firearm weapons either openly or concealed, some with a CWP and some without. I know a number of people who don't care for guns (but are not necessarily against others owning/carrying a gun) but who would, if allowed, carry a baton, or a large fixed blade concealed upon their person if they legally could. I'm not saying they don't already - but if they do, they're running the risk of criminal charges should they have a run in with the law.

CounterOfBeans · Dec 21, 2012

mkwerx said:
How much traction would there be to change oregon chl law into a concealed weapon law that would allow the carry of non firearm weapons like other states allow ie: batons, blades, etc. Weapons that are currently illegal to carry either openly or concealed with few exceptions.

This question is based on the premise that "licensing" of a right is valid to begin with, i.e. "chl" = concealed handgun "license". None of us question the FACT that both State and federal Constitutions enshrine, as a "right", the ability of Citizens to "keep and bear" arms. But somehow we have been jedi-mind-tricked into accepting the belief that we have to "ask" permission from those who swear to uphold and defend our rights, in order to be "legal".

If the Constitutions are the supreme laws of the land, what more legal authority do we need to rely on in order to just responsibly exercise our rights. The surreal absurdity of our modern-day acceptance and compliance of "policies" that say we have to ask to use our rights is an indictment of how far away we are from being actual self-determined Citizens. And yes, when we "apply" for a CHL, we ARE inherently "asking" for permission.

All a Citizen has to do is take a tour of a chapter of Oregon Law called the Administrative Procedures Act (APA) to understand just how out of tune we Citizens are with the laws that are supposed to protect our interests and our rights. The APA is found at chapter 183 in the Oregon Revised Statutes (ORS). The Oregon Legislature enacted this chapter of law to govern how the executive branch "administers" or "enforces" the legislative intent of the "law". This chapter has a definitions section that establishes the lawful meaning of key words used in the APA, including the word...."license". And the word "license" does not mean what authority figures routinely claim or insinuate that it means. Here's the definition below, copied and pasted in its entirety from the ORS website:

"183.310 Definitions for chapter. As used in this chapter:
(5) "License" includes the whole or part of any agency permit, certificate, approval, registration or similar form of permission required by law to pursue any commercial activity, trade, occupation or profession."

These are not my words. They are the law and this law is plainly-worded as it is required to be pursuant to Oregon Constitution, Article 4, Section 21:

"Section 21. Acts to be plainly worded. Every act, and joint resolution shall be plainly worded, avoiding as far as practicable the use of technical terms.—

This law cannot be read to insinuate that "license" applies to anything or anyone else. This is so because of ORS 174.010 below:

"174.010 General rule for construction of statutes. In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all."

Since this law makes it unlawful to put words into the Legislature's mouth by suggesting that other words were naturally intended by the Legislature, this law leaves us with only one conclusion to make....that the word "license" only applies to matters of a "commercial" nature. To tie this all in, what this law exposes is that we have been lied to for a very long time by interests who have used the built-in trust we place in government officials to make us accept and even embrace the commodification of our rights into pay-as-you-go "privileges", that can be diminished or taken away entirely through nothing more than administrative processes.

We have been so well-groomed to confine our perceptions of rights issues to the prison of "licensing", that we have forgotten what being free actually looks like, even if our military has shed its own blood for decades to preserve it.

mkwerx · Dec 21, 2012

COB - I agree with your viewpoint - but the reality of the situation is that, unless you are OK with going to jail or prison and risking revocation of your "rights" - carrying a concealed weapon in any state except Arizona, Vermont, or Alaska requires a permit or license beyond the Constitution. Is it right to license a "right" - not in my opinion. But my opinion probably isn't enough to keep my butt out of jail should a zealous prosecutor decide to "make an example" of me were I to be arrested for carrying certain weapons other than my firearm.

We could push for Constitutional carry in Oregon and joint he ranks of the three states mentioned earlier - but I believe there's less of a chance of that right now, than expanding the law to allow us to carry a baton or knife or sword legally. But I started this thread to provoke thoughts and see what others thought - and you make excellent points. I wish our lawmakers saw things the same way.

CounterOfBeans · Dec 21, 2012

mkwerx said:
COB - I agree with your viewpoint - but the reality of the situation is that, unless you are OK with going to jail or prison and risking revocation of your "rights" - carrying a concealed weapon in any state except Arizona, Vermont, or Alaska requires a permit or license beyond the Constitution. Is it right to license a "right" - not in my opinion. But my opinion probably isn't enough to keep my butt out of jail should a zealous prosecutor decide to "make an example" of me were I to be arrested for carrying certain weapons other than my firearm.

We could push for Constitutional carry in Oregon and joint he ranks of the three states mentioned earlier - but I believe there's less of a chance of that right now, than expanding the law to allow us to carry a baton or knife or sword legally. But I started this thread to provoke thoughts and see what others thought - and you make excellent points. I wish our lawmakers saw things the same way.

Mkwerx,

By definition, if a law is "beyond the Constitution", it is in violation of the Constitution and it is "void ab initio", i.e. nothingness from the beginning. Therefore, the only way it can gain support through enforcement and administration is if those who are doing the enforcing and administering are Constitutionally illiterate. The real problem, IMHO, is the fact that our governing institutions are filled with people who are victims of our public education system. Oregon law (ORS 336.057 & 067), since 1923, has quite literally mandated all public schools to provide a "course of instruction" on the federal Constitution for a minimum of 5 full years (8th grade through 12th grade). As a "graduate" of Oregon's public education system (up through a Bachelors Degree) myself, I know for a fact from my own experience that education curriculum "policy" is in gross non-compliance with education "law" (as cited above and below). The legislative intent of 336.057 is focused on US Constitution and US History studies, where the legislative intent of 336.067 places "special emphasis" not only on the US Constitution, but the Oregon Constitution and obedience to the law. I challenge anyone on this site who went to Oregon public schools to say that their 8th grade through 12th grade experience matched what these laws unambiguously require of our schools. I challenge anyone to say that they spent any time at all in class learning about the Oregon Constitution or state laws.

This is a nation where the "rule of law" is the utter cornerstone of society and even though we all pay homage to the truism that "knowledge is power", Citizens who emerge from our public schools as "graduates" are intellectually defenseless on many of the fundamental principles of the Constitutions and law? If "knowledge IS power" and the Constitutions were created to prevent the emergence of power abuse in government, that means that Citizens come out of public schools incapable of exercising their civic power and duties and prerogatives as Citizens to maintain the proper relationship between the people and those who serve them. Conversely, it means that those who go on in life to swear an oath to uphold and defend the Constitutions and laws are educationally incompetent to perform their duties according to their "oath". You can't uphold and defend something that you got a lip service education on. In closing, Citizens and public servants alike are educationally crippled and unequipped to preserve the form of society that exists under the "rule of law" in a Republic. I have cited ORS 336.057 & 067 below for your reference:

"336.057 Courses in Constitution and history of United States. In all public schools courses of instruction shall be given in the Constitution of the United States and in the history of the United States. These courses shall:

(1) Beginnot later than the opening of the eighth grade and shall continue in grades 9 through 12.

(2) Be required in all public universities listed in ORS 352.002, except the Oregon Health and Science University, and in all state and local institutions that provide education for patients or inmates to an extent to be determined by the Superintendent of Public Instruction. [Formerly 336.230; 1977 c.226 §1; 1999 c.1023 §1; 2011 c.637 §114]"

"336.067 Topics given special emphasis in instruction. (1) In public schools special emphasis shall be given to instruction in:

(a) Honesty, morality, courtesy, obedience to law, respect for the national flag, the Constitution of the United States and the Constitution of the State of Oregon, respect for parents and the home, the dignity and necessity of honest labor and other lessons that tend to promote and develop an upright and desirable citizenry.

(b) Respect for all humans, regardless of race, color, creed, national origin, religion, age, sex or disability.

(c) Acknowledgment of the dignity and worth of individuals and groups and their participative roles in society.

(d) Humane treatment of animals.

(e) The effects of tobacco, alcohol, drugs and controlled substances upon the human system.

(2) The Superintendent of Public Instruction shall prepare an outline with suggestions that will best accomplish the purpose of this section, and shall incorporate the outline in the courses of study for all public schools. [Formerly 336.240; 1975 c.531 §1; 1979 c.744 §13; 1993 c.45 §75; 2005 c.209 §22]"

If we had been given an opportunity to learn about the Oregon Constitution in public schools, we may have been exposed to provisions like Oregon Constitution, Article 1, Section 22, cited below:

"Section 22. Suspension of operation of laws. The operation of the laws shall never be suspended, except by the Authority of the Legislative Assembly."

From what I know now, ORS 336.057 & 067 have clearly been "suspended" by those who swear an oath to uphold and defend them. And in a nation that pats itself on the back for its "rule of law" heritage, born out of rebellion against history's totalitarianism and tyrants, we owe it to ourselves to honestly question how "rule of law" illiteracy could be an accident.

pokerace · Dec 22, 2012

[QUOTESection 22. Suspension of operation of laws. The operation of the laws shall never be suspended, except by the Authority of the Legislative Assembly."
][/QUOTE]

I think that's been changed..Didn't we just vote on something that gave authority to the governor??

Vantage · Dec 22, 2012

So... from what I read.. I don't think a typical 3" fixed blade knife would be considered a concealed weapon.

I saw this one:

Knife carried openly in sheath on belt is not concealed. State v. Johnson, 96 Or App 166, 772 P2d 426 (1989)

But what if it's openly on your belt but under your jacket? Or under a shirt? Or a sweater?

How about something like a K-Bar TDI?

CounterOfBeans · Dec 22, 2012

pokerace said:
[QUOTESection 22. Suspension of operation of laws. The operation of the laws shall never be suspended, except by the Authority of the Legislative Assembly."
]

I think that's been changed..Didn't we just vote on something that gave authority to the governor??[/QUOTE]

I think I'll need you to clear up what you're asking about, as far as what's been changed. Are you talking about Article 1, Section 22 of the Oregon Constitution or who's in charge of our public schools? As far as I know, the position of "superintendent" of public schools has been done away with and its duties have been assumed by the Governor. I HIGHLY doubt that the Constitutional provision which prohibits the suspension of the laws has been voted out.

fuhr52 · Dec 22, 2012

Since Oregon politics is controlled by Portland, Salem and Eugene, don't expect any pro-gun legislation out of Salem. Best hope is it doesn't get more restrictive.

mkwerx · Dec 22, 2012

fuhr52 said:
Since Oregon politics is controlled by Portland, Salem and Eugene, don't expect any pro-gun legislation out of Salem. Best hope is it doesn't get more restrictive.

It's not exactly "pro gun" legislation I'm talking about - more "pro non-gun weapons" but I get what you're saying. And Vantage - I'm talking abut concealed items, not openly carried items.

You can't be "open carrying" your firearm if you wear a jacket over it. Without a permit you are now unlawfully carrying a concealed firearm per state law. Same would apply to an openly carried knife or baton or what have you. Which is the whole point I'm getting at. Stick a fixed blade in your pocket and it's concealed. Stick an expandable baton in a pocket or cover it with a jacket and it's concealed. These shouldn't be criminal acts, but they are. Especially silly when you can carry a gun concealed, but can't carry a less-lethal baton concealed.