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Oregon Constitution, Section 27. Right to bear arms

Discussion in 'Legal & Political Archive' started by rayd8, Jan 21, 2011.

  1. rayd8

    rayd8 Formerly Portland, now Alabama! Member

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    Well, I've searched and I couldn't come up with anything on this.... Anyway, I came across the Oregon Constitution:

    Oregon Constitution, Section 27. Right to bear arms

    Note Section 27:

    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.

    It never really dawned on me before, but now I'm curious. If this is a state constitutional right, why are city ordinances against weapons not unconstitutional? For that matter, why do we need to apply for CCW in this state? Is it that the OR constitution does not include the phrase, "shall not be infringed"? Is this statement not implied? It seems to me that anything that limits my RBA for defence [sic] is unconstitutional.
     
  2. deen_ad

    deen_ad Vancouver, WA Well-Known Member

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    Because "we the people" allowed the Constitution (and State Constitutions) to be interpreted by judges, lawyers and legislators!!

    ----------------------------------------------------------

    The "Trade Rating" is low by 9 until the forum update is finished
    and not everyone posts it I guess.

    Deen
    NRA Benefactor/Recruiter
    WAC member
    SWWAC member
     
  3. BillM

    BillM Amity OR Bronze Supporter Bronze Supporter

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    City ordinances ARE unconstitutional. Read this, especially the last line of section 2. Do you have pockets
    deep enough to be the test case?



    2009 ORS § 166.170¹

    State preemption
    (1) Except as expressly authorized by state statute, the authority to regulate in any matter whatsoever the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition, is vested solely in the Legislative Assembly.

    (2) Except as expressly authorized by state statute, no county, city or other municipal corporation or district may enact civil or criminal ordinances, including but not limited to zoning ordinances, to regulate, restrict or prohibit the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition. Ordinances that are contrary to this subsection are void. [1995 s.s. c.1 §1]
     
  4. rayd8

    rayd8 Formerly Portland, now Alabama! Member

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    Good point. It seems to me that our laws and documents need interpretation, who should do this interpretation? I don't know if "we the people" can collectively interpret the laws and I don't think they can [all] be written in black and white.



    No, I don't have the pockets deep enough to test ORS......my questions mainly arise out of curiosity and my 'discovery' of the State Constitution. I guess we're lucky Oregon had the foresight to include this as several states make no references to RBA in their constitutions.
     
  5. oregonlaw76

    oregonlaw76 Oregon Member

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    Most of the city ordinances are legal because they are "expressly authorized" by ORS 166.173.

    166.173
    Authority of city or county to regulate possession of loaded firearms in public places
    (1) A city or county may adopt ordinances to regulate, restrict or prohibit the possession of loaded firearms in public places as defined in ORS 161.015 (General definitions).

    As for your constitutional question, the courts have interpreted all rights afforded by both state and federal constitutions to be subject to some regulation. Free speech, but can't yell fire in a theatre or threaten to kill the president. Likewise, the Oregon Supreme Court has said that Article I, section 27 is an individual right, but "the constitutional guarantee that persons have the right to 'bear arms' does not mean that all individuals have an unrestricted right to carry or use personal weapons in all circumstances." For instance, the Supreme Court has held that you cannot be prosecuted for merely possessing a billy club or switchblade, but said the state could regulate how you possess them in certain circumstances. One such way was concealed on your person. Doing so "does not impinge on the constitutional right to possess a switchblade knife. A person may possess and carry a switchblade so long as it is not concealed." Even with that said, the Court has found that you cannot prosecute someone for even carrying a switchblade concealed if you are in your house. The Court has also held that felons can be prohibited from possessing weapons in most of these circumstances.

    As for guns, unfortunately there is a wrongly decided case by the Oregon Court of Appeals in 1993, not reversed by the Oregon Supreme Court, that said that most semi-automatic "military" originated weapons don't qualify as arms under the section, and therefore aren't protected.


    This is NOT legal advice, do not rely on it to your detriment.
     
  6. rayd8

    rayd8 Formerly Portland, now Alabama! Member

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    Oregonlaw76, thanks for the info! I wasn't soliciting internet legal advice to do something I shouldn't.....I was merely curious as I mentioned earlier. Very interesting history regarding the court cases, again thank you.
     
  7. oregonlaw76

    oregonlaw76 Oregon Member

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    Sure thing. The disclaimer wasn't aimed at you, just a general CYA. If you would like to read any of the opinions I mentioned, please feel free to shoot me a PM with your email address and I'll send them over.
     
  8. Mark W.

    Mark W. Silverton, OR Bronze Supporter Bronze Supporter

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    Isn't this the type of argument that gun owners in AZ used to get their Constitutional Carry passed? I was just there in SE AZ. and everyone was carrying and many times the fact that no permit is now required to carry concelled in AZ due to it being a constitutional right.

    And since I was in my Brothers gun shop yes I know everyone was carring LOL.
     
  9. Grunwald

    Grunwald Out of that nut job colony of Seattle, WA Well-Known Member

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    Wow, that is just mind blowing example of either ignorance or complete disregard of the meaning of the word "arms" by the court. What do they think it means? Better yet, what did the word mean when the Constitution was written? I cannot believe that the pro-gun lawyers weren't ready for it and did not show up with a couple of dictionaries that date back to that time period.
    Arms does not mean hunting rifle or duck shotgun. It means a military firearm or device (sword, battle-axe).
     
    Last edited: Jan 24, 2011