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Category: Gun Rights

Supreme Court Says Reducing a Felony to a Misdemeanor Restores Gun Rights

Oregon law allows a Court to reduce Class C felony crimes to a misdemeanor. This can be done at the time of sentencing or later, after completion of probation. For many years, Courts in Oregon have held that people who reduce their felony to a misdemeanor after completion of probation do not have their gun rights restored. This was based on an interpretation of the Oregon law that forbids convicted felons from owning firearms. That law forbids anyone who “has been convicted of a felony” from owning a firearm. The Courts reasoned that a person who received a misdemeanor reduction after completion of probation had still “been convicted of a felony” for the time between the initial sentencing and the time the felony was reduced to a misdemeanor.

The Oregon Supreme Court disagreed with that reasoning in State v. Stark, decided on August 15, 2013. In that case, Mr. Stark had been convicted of a Class C Felony drug crime. After he completed his probation he asked the Court to reduce the conviction to a misdemeanor. The Court granted the request and issued an order reducing the crime to a misdemeanor. Two years later Mr. Stark was found in possession of a firearm. He was prosecuted for being a Felon in Possession of a Firearm. Mr. Stark went back to the Judge who reduced his felony to a misdemeanor and asked the Judge to enter an Amended Judgment (rather than an Order) reducing his felony to a misdemeanor and asked that the Judge make it retroactive to the date of his first sentencing, which the Judge did. Mr. Stark was convicted of being a Felon in Possession of a Firearm and he appealed argued that he was innocent because his felony conviction had been reduced to a misdemeanor.

The State cited older cases which held that people who have received a misdemeanor reduction after probation are still convicted felons under Oregon Law. The Oregon Supreme Court rejected that argument, holding that when a Court enters an Amended Judgment reducing a person’s felony to a misdemeanor that person is no longer a felon under Oregon law. This is a substantial change in Oregon law.

However, there is a catch. The Oregon Supreme Court affirmed Mr. Stark’s conviction because no Amended Judgment reducing his felony to a misdemeanor had been entered, only an Order, which was not enough. The Court noted that the Amended Judgment that was deemed “retroactive” by the prior Judge was not valid.

If you have had a felony reduced to a misdemeanor, we can now file an Amended Judgment and restore your gun rights. If you have an eligible felony conviction, we can take you through the reduction process and have it reduced to a misdemeanor conviction.

We have great success in misdemeanor reduction hearings. As an Oregon Gun Rights Lawyer, I help many people regain their Second Amendment Rights through a variety of different processes.

Local Restrictions on Gun Rights Upheld by Oregon Supreme Court

The Oregon Supreme Court issued an important decision for Oregon Gun Rights Lawyers and those interested in protecting their right to keep and bear arms.  The decision is an outgrowth of two United States Supreme Court cases decided a few years ago.

In 2008 the United States Supreme Court decided buy phentermine 30 mg eon blue/clear District of Columbia v. Heller, a case in which an out-right weapons ban in Washington D.C. was found to be a violation of the Second Amendment.   Then, in 2010 the U.S. Supreme Court decided cheap phentermine pills for sale McDonald v. City of Chicago holding that Chicagos extremely restrictive gun licensing system violated the Second Amendment.  Since then, many have questioned what kinds of restrictions states and municipalities can enact restricting gun ownership and use.   The U.S. Supreme Court did not specifically address the question of what level of scrutiny the Court would apply to restrictions on Second Amendment rights.

On the Federal level, the U.S. Supreme Court applies three levels of “scrutiny” to restrictions on constitutional rights.  For instance, laws restricting some rights receive “strict scrutiny,” meaning that virtually no restriction will be tolerated.  The lowest level of scrutiny is “rational basis” review where the Court allows restrictions that are rationally connected to an legitimate public interest.  The “intermediate” level of scrutiny allows restrictions but requires that the public interest the restrictions promote to be compelling and narrowly tailored.  Some believe that the Court has indicated that it will apply the intermediate level of scrutiny to Second Amendment restrictions, although the Court has not expressly said so.

In the State of Oregon the right to keep and bear arms is protected by Article 1, Section 27 of the Oregon Constitution.  The Oregon Constitution can provide a broader right than the Federal Constitution but cannot be more restrictive than the U.S. Constitution.

The Oregon Supreme Court has now weighed in on what kind of state and local regulations can be enacted that restrict gun rights under the Federal and State Constitutions.  On August 15, 2013 the Court decided phentermine where to buy in canada State of Oregon and City of Portland v. Christian.  Mr. Christian was convicted of violating a City of Portland Ordinance which forbids carrying a firearm in public having recklessly failed to unload the firearm.  Christian challenged the ordinance, claiming that the ordinance restricted his right to carry a firearm to defend himself, in violation of the Second Amendment and Article 1, Section 27 of the Oregon Constitution.

The Oregon Supreme Court rejected his challenges.  The Court held that, under the Oregon Constitution, restrictions on carrying firearms in cities had traditionally been allowed.  Under the Second Amendment the Court found that such regulations are linked to an important government interest and that the ordinance survived intermediate level scrutiny.  The Second Amendment issue would be eligible for U.S. Supreme Court review, if a Petition for such review is filed and the U.S. Supreme Court accepts the case.

As an Portland Gun Rights Attorney, I believe that we must keep a close eye on new laws that restrict the ability of people to bear arms for self-defense.  While the restriction at issue here is not overly burdensome, since law abiding citizens can obtain a permit to carry weapons, other restrictions may trample on the right to bear arms.


Supreme Court takes next step in deciding how much protection gun owners have from regulation of their right to bear arms under the Second Amendment

This term, the United States Supreme Court will take the next step in deciding how much protection gun owners have from regulation of their right to bear arms under the Second Amendment. The issue this term is the constitutionality of the gun regulations of the City of Chicago.

The City of Chicago requires the registration of all firearms kept by citizens within the city boundaries. Moreover, the City requires that the registration be renewed, with payment of a fee, every year. Basically all of the applications for registration of a handgun are denied. If a person fails to register a firearm, or fails to renew a registration, the firearm is deemed “unregisterable” and illegal, even if the firearm is transferred to another person.

There is no question that this law violates the Second Amendment, under the analysis set out by the United States Supreme Court in District of Columbia v. Heller, where the Court struck down a similar outright ban on handgun ownership. But the question is whether the Second Amendment applies to regulations by states?

That is the question that the United State’s Supreme Court will answer this term in McDonald v. City of Chicago. In that case, Mr. McDonald applied to register a handgun, which was denied. He appealed. Mr. McDonald’s appeal was joined with several other appeals from other individuals, some of whom had tried to register handguns, and others who had tried to register firearms deemed “unregisterable.” The case was advanced and argued by the National Rifle Association.

As a technical matter of constitutional law, the question is whether the right guaranteed by the Second Amendment applies to the states through the Fourteenth Amendment as are other important rights, such as freedom of speech and the right to a jury trial. Under the Fourteenth Amendment, other rights have been deemed to be so “rooted in our traditions and our conscience” that they become fundamental rights which cannot be denied without due process of law.

Based on the oral argument on this case on March 2, 2010, it appears that the majority of the Supreme Court is ready to apply the Second Amendment to the states. If the Court decides to apply the Second Amendment to the states, the result would be that Chicago’s outright ban on handguns and enormously burdensome and costly registration system will be declared null and void.

There are still more battles to be fought on this front. Even if the Court applies the Second Amendment to the states and recognizes gun ownership as a fundamental right, there will still be a question as to what level of regulation cities and states can impose on gun ownership.

One thing is certain, gun rights advocates will continue to challenge burdensome regulations that interfere with gun ownership rights. It may take several years to answer all of the questions about how much protection gun owners enjoy under the Second Amendment, but the battle is now appears to be half won.

As an Oregon Criminal Defense Lawyer, Mr. O’Rourke represents persons charged with crimes involving firearms and persons seeking Restoration Of Gun Rights In Oregon.