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.
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.
But the majority interprets “recklessly” as referring not to the carrier’s recklessness as to whether the gun has been unloaded, but his recklessness as to the possible consequences of having the loaded gun:
A violation of the ordinance occurs … when a person (1) possesses or carries a loaded firearm in a public place; (2) knows that he or she is carrying or possessing the loaded firearm and that the place is public; (3) recklessly does so anyway, that is, is aware of the fact that carrying the loaded firearm in public creates an unreasonable, unjustifiable risk; and (4) nonetheless consciously disregards that risk and bears the firearm in a public place anyway.
Defendant (and the dissent) under-appreciate the effect of the term “recklessly,” apparently contending that it refers only to the isolated act of not unloading the firearm, as opposed to that act and its inherent consequent risks when the loaded weapon is borne in public. That interpretation makes no sense logically or syntactically. It would result in a rule that prohibits carrying a loaded firearm in public, having at some point been aware of and consciously disregarding the risk that not unloading the firearm creates a significant, unreasonable, and unjustifiable risk of … a loaded firearm. To take an action recklessly — that is, aware of and disregarding the fact that the action creates a risk — the risk must be of something other than the action itself. We do not say that a person who drives recklessly does so because he or she drives while aware of and disregarding the risk that he or she will drive. The crime of reckless driving is made out only if the driving “endangers the safety of persons or property.”
Here, for whatever it’s worth, is the Oregon general definition of “recklessly,” which is borrowed from the Model Penal Code: “‘Recklessly,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
An interesting dispute, which I thought I’d note.