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Thread: DISCUSSION: Does 166.173 require an Oregon CHL (iis there a loophole for other state)

  1. #1
    Regular Member We-the-People's Avatar
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    DISCUSSION: Does 166.173 require an Oregon CHL (iis there a loophole for other state)

    This thread IS NOT intended to address the reality of "the street" nor the fact that it would likely be a "test case" and very expensive.

    This thread IS intended as a discussion of the possiblity that a "legal loophole" exists within Oregon firearms regulations such that we do in fact recognize other states licenses to carry concealed handguns. HOWEVER, that recognition is LIMITED to ORS 166.173 ONLY (local loaded carry ban ordinances). So, please take a look at my citations and argument. I would be very interested in know what the actual attorneys think and a particular State Researcher (Gray)


    SO HERE WE GO


    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.


    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.

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

    (c) A person licensed to carry a concealed handgun.


    NOTE: That while ORS 166.173 states that ordinances adopted under it (i.e. local ordinances banning loaded carry) do not apply to "(c) a person licensed to carry a concealed handgun" there is no mention that it must be an OREGON license. Elsewhere in the ORS, this is not the case and the licensing authority required to claim the exemption is identified (by ORS). Let's examine those.


    166.260 Persons not affected by ORS 166.250.
    (1) ORS 166.250 does not apply to or affect:
    (h) A person who is licensed under ORS 166.291 and 166.292 to carry a concealed handgun.

    166.262 (1) Limitation on peace officerís authority to arrest for violating ORS 166.250 or 166.370. A peace officer may not arrest or charge a person for violating ORS 166.250 (1)(a) or (b) or 166.370 (1) if the person has in the personís immediate possession a valid license to carry a firearm as provided in ORS 166.291 and 166.292.

    166.370 Possession of firearm or dangerous weapon in public building or court facility; exceptions; discharging firearm at school.
    (1) Any person who intentionally possesses a loaded or unloaded firearm or any other instrument used as a dangerous weapon, while
    in or on a public building, shall upon conviction be guilty of a Class C felony.
    (3) Subsection (1) of this section does not apply to:
    (d) A person who is licensed under ORS 166.291 and 166.292 to carry a concealed handgun.

    NOTE: ORS 166.291 and 166.292 are the Oregon CHL licensing procedures.


    Courts place great emphasis upon the specific words used in regulatory statutes. ONLY in ORS 166.173 has the legislature chosen to merely require a license "to carry a concealed handgun" without listing any requirement for the licensing authority of that license (i.e. 166.291 & 292). That the rest of chapter 166 of the ORS DOES require that a concealed handgun license must be issued under ORS 166.291 & 292 is significant.

    Therefore, the argument is that while Oregon requires a CHL issued by Oregon in order to:
    (1) Be immune from 166.250
    (2) Qualify for the protections of 166.262 (LEO can not arrest you for violation of 166.250 or 370) (of course we know how well that works)
    (3) Be able to carry in a in public building via 166.370.

    Significantly, Oregon law DOES NOT require a concealed handgun license to be issued under ORS 166.291 & 292 (i.e. Oregon CHL) to be exempted from any local ordinances promulgated via the authority of ORS 166.173 (only A license to carry concealed). Nor can the city of Astoria, or any other political subdivision of the state, increase the requirement as they do not have EXPRESS AUTHORITY to override the state statute that exempts people who are "licensed to carry a concealed handgun".



    The above argument IS NOT expected to keep you from being contacted and arrested. It is merely an argument to be made in a court of law and it would be a TEST case.
    "The Second Amendment speaks nothing to an unfettered Right". (Post # 100)
    "Restrictions are not infringements. Bans are infringements.--if it reaches beyond Reasonable bans". (Post # 103)
    Beretta92FSLady
    http://forum.opencarry.org/forums/sh...ons-Bill/page5

    Disclaimer: I am not a lawyer, nothing in any of my posts should be considered legal advice. If you need legal advice, consult a reputable attorney, not an internet forum.

  2. #2
    Regular Member VW_Factor's Avatar
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    I thought the 166 section had a definition section to "clarify" these gaffs.

    Edit : Don't have it in front of me, and I am lazy this evening.
    Last edited by VW_Factor; 11-15-2011 at 10:00 PM.
    Quote Originally Posted by Beretta92FSLady
    I am no victim, just a poor college student who looks to the day where the rich have the living piss taxed out of them.

  3. #3
    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Washington has similar language in their code regarding the carrying of firearms.

    (1)(a) Except in the person's place of abode or fixed place of business, a person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol.

    (b) Every licensee shall have his or her concealed pistol license in his or her immediate possession at all times that he or she is required by this section to have a concealed pistol license and shall display the same upon demand to any police officer or to any other person when and if required by law to do so. Any violation of this subsection (1)(b) shall be a class 1 civil infraction under chapter 7.80 RCW and shall be punished accordingly pursuant to chapter 7.80 RCW and the infraction rules for courts of limited jurisdiction.

    (2)(a) A person shall not carry or place a loaded pistol in any vehicle unless the person has a license to carry a concealed pistol and: (i) The pistol is on the licensee's person, (ii) the licensee is within the vehicle at all times that the pistol is there, or (iii) the licensee is away from the vehicle and the pistol is locked within the vehicle and concealed from view from outside the vehicle.
    Despite this language it is my understanding that Oregon CHLs are not recognized in the State of Washington, but I do not know why that is (i.e. what law makes that so). Perhaps the answer to this question is similar to WTP's question.

    ETA: As far as Washington goes, it looks like this code section negates my above quotation, but this is only true assuming WTP's argument is incorrect:

    (1)(a) A person licensed to carry a pistol in a state the laws of which recognize and give effect in that state to a concealed pistol license issued under the laws of the state of Washington is authorized to carry a concealed pistol in this state if:

    (i) The licensing state does not issue concealed pistol licenses to persons under twenty-one years of age; and

    (ii) The licensing state requires mandatory fingerprint-based background checks of criminal and mental health history for all persons who apply for a concealed pistol license.
    What's interesting is that Oregon lacks a reciprocity code, whereas Washington does not. So normally I'd conclude that since Oregon doesn't recognize Washington's CPL, then Oregon's CHL is not valid in Washington either. BUT Washington's law says "is authorized to carry a concealed pistol in this state." But what if you just want to open carry, then RCW 9.41.050 seems to be the guiding law, which only speaks of having a license to carry a concealed pistol. It doesn't say that you have to have a license recognized under Washington's reciprocity code.

    Kind of similar arguments on some level.
    Last edited by bigtoe416; 11-16-2011 at 12:39 AM. Reason: doing more research

  4. #4
    Regular Member hermannr's Avatar
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    In the case of Washington, only states that will sign a reciprical agreement will be recongnized. See 1(a) in your cut and paste. They can meet all the other requirements to sign a recipricial agreement, but if they won't sign one (NY and OR are two that come to mind), then that state's license will not be recognized here. We have no unilateral recognition available, so, OR will not recognize WA, then WA will not recognise OR.

    As to the OP: Very interesting find...especially as it has come to out attention on this board that Astoria's local carry regulation says except with a carry permit "By a lawful authority". It does not reference OR specifically.

    Yes, I would also be of the opinion that local restrictions on loaded OC would not apply if you had a WA CPL. I would also think that you would be still restricted to OC as the local laws do not address (at least Astoria's doesn't) concealed specifically, and OR state concealed license is specific.

    So, now "We the People", here is your next assignment...What specifically does Portland's local law state? Does it address "Lawful authority" or specifically OR state concealed law...I am specifically speaking about OC restrictions now...OK? I really would like to know.

  5. #5
    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Relevant Portland code:

    14A.60.010 Possession of a Loaded Firearm in a Public Place. - Printable Version

    (Amended by Ordinance No. 184274, effective December 31, 2010.)

    A. 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.

    B. It is unlawful for any person to knowingly possess or carry a firearm and that firearmís clip or magazine, 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 clip or magazine.

    C. The following are exceptions and constitute affirmative defenses to a violation of this Section:

    <snip>

    3. A person licensed to carry a concealed handgun.

  6. #6
    Regular Member hermannr's Avatar
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    Super!!! All of us WA folk do not need to worry about a OR CHL! I OC anyway, now I know I'm covered with my WA CPL!!!

    We really don't go to OR that much anymore, maybe once a year, and Gresham is OC OK, anyway, but you do have to drive through parts of Portland to get there, and one of my cousins does actually live in Portland. (never been to her house, because of....we always meet in Gresham for some reason

  7. #7
    Regular Member We-the-People's Avatar
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    Okay BigToe beat me to the Portland Code but hey, I was prepping for trial from Tuesday through about 5:30am this morning. (no I'm NOT A LAWYER and NO it's not a firearms case [or criminal at all] LOL).

    I wouldn't take my "find" and think you're "good to go". This discussion is about what the law says, NOT what would happen on the streets/in the courts. It would almost certainly end up as a test case if someone tried to test it and we all should know that even when you're square in the middle of settled law, any court action can be both SPENDY and RISKY.

    Discussion on the other hand, might help to develop an argument should someone get hooked up as the individual who inspired my research and this thread did.
    "The Second Amendment speaks nothing to an unfettered Right". (Post # 100)
    "Restrictions are not infringements. Bans are infringements.--if it reaches beyond Reasonable bans". (Post # 103)
    Beretta92FSLady
    http://forum.opencarry.org/forums/sh...ons-Bill/page5

    Disclaimer: I am not a lawyer, nothing in any of my posts should be considered legal advice. If you need legal advice, consult a reputable attorney, not an internet forum.

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