Open Carry in the Big City

[Seeker]

Drove into Portland (OR) tonight for a little drywall work , from home in the hinterlands - 'bout a hundred miles, with my 17 year old son. It was a long day and we were getting tacos at the Muchos Gracias just before midnight in Portland. We were waiting patiently when a Portland police officer came in orders a couple of tacos, turned to me and said "You're from out of town arent you?". "No." I said, thinking he'd noted the peace symbol on my wool crusher and wondering how that set me off as notable, it's Portland, OR for crying out loud!

He then told me that open carry isn't legal in Portland. I was wearing a 1911 in a 'bikini'? holster (leather 'slot' (really just a variation on CR Sam style Mexican carry) that fits on a belt) with a black leather vest that didn't quite cover 'my embarrassment'.

I told him he was right unless the person has a CHL. He said in that case it must be concealed, but that he personally didn't care as he grew up 'in the country'. He was nice enough, even if decked out like a mall ninjas favorite dream, but continued to tell me that I was in violation of PDX laws.

In fact, Oregon allows open carry. Some municipalities have laws forbidding open carry but a state issued CHL supersedes local ordinances.

I explained this as I picked up our tacos and he suggested that I check again. Advised him that I had before coming to town and suggested that he should do the same research.

[Seeker]

A municipality have laws that are contrary to the state constitution? And how can states have laws contrary to the US Constitution? Especially after Heller?

[grey sky]

Was he right?

[Sefner]

A municipality have laws that are contrary to the state constitution? And how can states have laws contrary to the US Constitution?

We could have a hundred page thread on just this topic.

[Hansam]

States can have laws that further restrict what the federal government allows however states cannot have laws that releases restrictions from what the federal government has set.

Basically look at the Clinton era AWB. Federal guidelines were set and ALL states had to abide by that. Now that the ban is expired only SOME states still abide by those guidelines or have even stricter guidelines.

Same goes for municipalities and states - the state can allow open carry but the individual municipalities CAN install ordinances that prohibit open carry unless it is so written in the state's laws that said laws supersede the municipalities' ordinances.

[Glenn E. Meyer]

Some cities have local ordinances that may clash with the state. But someone has to challenge them and be a test case.

[Uncle Buck]

Missouri is an open carry state, but Kansas City MO restricts open carry.

Sometimes there are provisions in the law, added much later, that "Clarify or amend" a previous law.

I can not remember what the official term is called, but if you look, you may find the police officer is correct.

[glocktwotwo]

I was escorted out a shopping mall by mall security for open carry,,even though its perfectly legal to do so in the state i live in,,they asked me if i had seen the sign stating that no weopons were allowed in the mall,,the sign was on the very same door i came thru, ,at least thats what the mall cops said,,so we walked down thru the door i came in and asked them where the sign was,,,there was no sign much to their dismay,,i was cool and put my gun in my car and went back in,,they apologized and said that they would make sure there would be a sign installed...that was 6 years ago and still no sign,,,,silly mall cops,,,

[Webleymkv]

A municipality have laws that are contrary to the state constitution? And how can states have laws contrary to the US Constitution? Especially after Heller?

Unless there is a state pre-emption law (I don't know if OR has one or not), a municipality can pass any firearms law it likes short of a total ban (this would run afoul of Heller and McDonald). A ban on carry or one type or another does not run afoul of SCOTUS decisions because none of the 2A cases they've heard (Miller, Heller or McDonald) have dealt with carry.

Remember, laws are, basically, presumed to be Constitutional until the Judicial Branch says otherwise. If OR does not have a state pre-emption law and a municipality's handgun laws haven't been challenged in court or if the challenge hasn't run its course, then municipal firearms regulations are perfectly legal.

[Seeker]

The cop was wrong.
Oregon is an open carry state but some of the larger cities have laws against open carry. However those restrictions don't apply to CHL holders.

§*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]

[Seeker]

Course I'm no lawyer, but based on what the Oregon Revised Statute says it seems like no city may make laws regarding possession or transportation.

[Webleymkv]

If Seeker's information is correct, and I have no reason to believe that it isn't, then perhaps carrying a printed copy of said statute would be a wise practice if you want to continue to OC in Portland or any other large city.

[langenc]

Better yet should have got the guys badge number and then send him some info and ask him to call you with questions--CC to the chief of police..

[zxcvbob]

Better yet should have got the guys badge number and then send him some info and ask him to call you with questions--CC to the chief of police..

Yeah, but do that politely. He may have been wrong, but he wasn't hard about it. IMHO, that's worth a lot.

[Frank Ettin]

Originally Posted by Seeker

Course I'm no lawyer, but based on what the Oregon Revised Statute says it seems like no city may make laws regarding possession or transportation.

I am a lawyer. As such, I would not venture such opinion based solely on the statute you quoted.

First, the statute you quoted explicitly says, "Except as expressly authorized by state statute,..." So one can't properly base an opinion on the single statute without doing a thorough job of researching the Oregon statutes to see if there's anything else there to authorize certain local regulation. Did you do that?

Second, a statute might not be the whole story. Court decisions can affect how a statute is interpreted and applied. Did you research the case law?

You might be correct. I'm not offering an opinion as to merits of the issue. Rather, I'm illustrating how a lawyer would approach the question and why relying just on a single statute might not be sufficient.

Originally Posted by Seeker

A municipality have laws that are contrary to the state constitution? And how can states have laws contrary to the US Constitution? Especially after Heller?

You might think a law is invalid, but that doesn't count. A court has to say that the law is invalid.

[Seeker]

Looks as if Lars Larson will be covering this on his Wednesday show (the Northwest show I expect rather than his national show.)

Here is part of email from Lars to Portland PD:

....seems some of your officers don't know the open carry for CHL rules as you've explained them on air. *Seems to me a roll call notice to all would b in order. Agreed?....

[hermannr]

Well Seeker, you are mostly right. For those not familure with OR law, Unlicensed OC is legal everywhere in the state, however ORS 166.173 allows the local governments some latitude on LOADED OC without a license or permit.

OR also has a License (CHL) that allows for open carry or concealed carry anywhere in the state including retricted local government areas, carry into public buildings, and such. Local ordinences do not apply to someone with a CHL. Also, OR does not recognize any other state's license for purposes of concealed carry, or any carry into a public building...however..

The quirk in the law is, the local government restrictions on loaded OC are also overridden by ANY governments license to carry,,,you cannot conceal or enter a public building with your out-of-state CPL, but you can ignore the local restictions on loaded OC. BTW: most of OR is OC friendly, except Portland and environs.

[kraigwy]

I'm no lawyer, but I know cops, including Portland cops.

Just because one is a cop does not mean he/she is up on all the gun laws, remember, he's not a lawyer anyway.

Knowing that, I think most Portland Cops do know that a CC permit is valid. But since CC means "concealed carry" if it was me, I'd carry concealed.

You may be 100% right, but I wouldn't' want to spend the night in the poky so I could prove I'm right.

I carry under the LEOSA, and I could carry open if I so choose, but I don't want the headache, nor do I want to stand out or make some body's granny nervous.

Side note about Oregon and the LEOSA. They were well a head of the game, they always allowed out of state officers or out of state retired officers to carry concealed.

Oregon has an outstanding LEOSA qualification program, I go to the Clackamas County Sheriff's Office to get my yearly qualification.

Just a bit of useless information.



JMHO