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Old November 24, 2010, 01:34 AM   #1
siggygirl
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City Ordinance preempts State Regs?

It's been awhile and I've been elsewhere. But a topic has come to my attention that I hope will merit discussion here.

It started with me trying to get a straight answer from my local city about where I can and cannot carry as a valid CHL holder. I was issued a permit in Multnomah County in Oregon. In my CHL class I was told "there are some weird rules about Portland you will need to look into." In trying to find out what these "weird rules" are, I ran into this:

http://media.oregonlive.com/portland...ther/83421.pdf

www.katu.com has some quick run down pieces on it. If I understand this correctly (and much I don't), it looks like our Mayor wants to pass some of his own gun control rules. Did I get that right? And if so, isn't there something funky about that? I called the county CHL dept today to get answers, they sent me to Portland Police Department to answer my questions about "rules around carrying in Portland." PPD sent me back to county. The county then gave me an earful about how I should be talking to the Mayor. The Mayor's line is busy. It looks like this is coming up for a vote shortly.

I've chosen to post here because even if I've broken a rule or misunderstood something, I think there are enough interested RKBA people on this forum to look into this. Seems like this should be talked about.

I haven't thoroughly searched this forum to see if anyone else has taken up this topic. I hope they have.

Apologies to mods if I posted this incorrectly, I've never posted in this part of the forum before and I haven't been on the board in some time.
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Old November 24, 2010, 06:54 AM   #2
mete
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You're problem is that you're looking for reason and logic !
While normally state laws supercede local ones there are exceptions .
Here in NY there are separate rules for guns in NYC.NY state residents can't carry their guns in NYC !
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Old November 24, 2010, 08:28 AM   #3
Doyle
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Local laws can indeed be more stringent than state laws. It depends largely on how the state law was written.
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Old November 24, 2010, 10:53 AM   #4
carguychris
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Quote:
Local laws can indeed be more stringent than state laws. It depends largely on how the state law was written.
+1, and the OP needs to look at the state laws regulating what a local government is allowed to do. Each state has a set of laws spelling out the powers of local governments, and those powers vary from state to state. State law does not necessarily preempt local law if the local government is acting within its powers as spelled out under state law.

The problem is that most states have some vague language in their local government code similar in concept to the 10th Amendment, i.e. if the code doesn't say you can't, then you can ("...a local government may enact regulations promoting the health and general welfare of its citizens if not otherwise prohibited under Chapters X and Y of this code..."). Many states, including my home state of TX, have enacted firearms preemption laws to prevent local municipalities from gutting their shall-issue CHL laws, but OR may be an exception.
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Old November 24, 2010, 12:10 PM   #5
siggygirl
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This is part of the struggle for me. I'm not a lawyer. The county who issued my permit told me the mayor can't do this per Oregon law. I don't know if it's legal or not. I don't understand legalese.
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Old November 24, 2010, 12:12 PM   #6
bob.a
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Write to your state's Attorney General and request an opinion.
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Old November 24, 2010, 04:07 PM   #7
tet4
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I second the letter to the AG. The truth is that the police departments or mayor's office may not tell you the correct information for any number of reasons (poor training, laws change, they have an agenda, they don't want to deal with it, that's how that particular cap thinks it should be, etc). The AG opinion is about as close as you will get without hiring a lawyer. (Maybe some portland residents could jump in as well).

Case in point, I just got my license and the information in the paperwork they sent home with me is quite incorrect, but that's what the office is telling people because that's what they are telling their cops.... Luckily, all of the stuff that is incorrect is not a problem with me anyway, but it's still annoying at least - you would expect a simple call to the PD would set you straight.
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Old November 24, 2010, 05:53 PM   #8
MLeake
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Depends on where you live...

.. and consulting your AG office is a good idea.

In Georgia, a state law was passed in 2008 that preempts any level of government below the state from passing gun control type legislation.

The city of Atlanta has not been happy about this.

As I don't live in Atlanta, and when I do have to go into Atlanta I really like being able to carry because of the levels of crime in Atlanta relative to the rest of NW GA, I'm quite happy the state passed that law.
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Old November 24, 2010, 06:08 PM   #9
siggygirl
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Statutes

I did find this in OR statutes:

166.170 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]

166.171 Authority of county to regulate discharge of firearms. (1) A county may adopt ordinances to regulate, restrict or prohibit the discharge of firearms within their boundaries.

(2) Ordinances adopted under subsection (1) of this section may not apply to or affect:

(a) A person discharging a firearm in the lawful defense of person or property.

(b) A person discharging a firearm in the course of lawful hunting.

(c) A landowner and guests of the landowner discharging a firearm, when the discharge will not endanger adjacent persons or property.

(d) A person discharging a firearm on a public or private shooting range, shooting gallery or other area designed and built for the purpose of target shooting.

(e) A person discharging a firearm in the course of target shooting on public land that is not inside an urban growth boundary or the boundary of a city, if the discharge will not endanger persons or property.

(f) An employee of the United States Department of Agriculture, acting within the scope of employment, discharging a firearm in the course of the lawful taking of wildlife. [1995 s.s. c.1 §2; 2009 c.556 §1]
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