RESTORATION OF GUN RIGHTS
Just because you have a prior felony convictions does not mean you have permanently lost your gun rights in Oregon.
There are a variety of lawful means to regain the right to bear arms after a felony conviction for the protection of your person or property, or for recreation. In some instances, the underlying felony conviction can be expunged. In others, the felony crime can, at the Court’s discretion, be reduced to a misdemeanor. Oregon law does provide a procedure for a person to petition the Court for the restoration of gun rights with a felony conviction.
We can evaluate your conviction record and determine whether or not you can regain your right to own, possess and use a firearm and which of the above methods or combination of methods will work best for you.
Portland Oregon Gun Rights Attorney
GET ADVICE FROM AN EXPERIENCED OREGON GUN RIGHTS LAWYER BEFORE ATTEMPTING TO DO ANYTHING ON YOUR OWN
Call us for a free telephone consultation with an Oregon Gun Rights Attorney at 503-221-1425 or you can tell us about your case here.
There have been many significant favorable developments on both the Federal and State levels pertaining to gun rights.
Federal Restoration of Gun Rights Laws
The Second Amendment of the United States Constitution provides: “A well regulated militia, being necessary to the security of a free state, the right to keep and bear arms, shall not be infringed.”
In 2007, the United States Supreme Court decided District of Columbia v. Heller, in which they struck down an outright ban on firearms in the District of Columbia. In Heller, the Supreme Court made clear, for the first time, that the right to keep and bear arms is a constitutionally protected individual right (It is uncertain, at this point, whether the Second Amendment applies to the States). In this 2009 term, the United States Supreme Court will decide McDonald v. City of Chicago and will decide whether or not the plain langauge of the Second Amendment protections extend to the States. It is widely anticipated that they will apply the Second Amendment to the States. If it does, then all regulation on the state level must meet both federal and state constitutional standards.
Oregon Restoration of Gun Rights Laws
In Oregon, gun rights are protected by Article 1, Section 27 of the Oregon Constitution. Unlike its federal counterpart, Article 1, Section 27 clearly states that gun rights belong to individuals: “The people shall have the right to bear arms for the defence of themselves, and the State . . .” Although the right to bear arms has always been considered to be an important right, Oregon Courts have found that the right is subject to reasonable regulation by the legislature, and restrictions such as barring felons from possessing firearms have been upheld.
Every year gun rights opponents in the Oregon State Legislature attempt to pass laws restricting gun rights. Gun rights activists have been successful defending and even expanding person’s right to bear arms. In 2009, the Oregon State Legislature made important changes in the law allowing persons convicted of a felony to have their gun rights restored. These changes allow persons convicted of a felony to apply for restoration of their gun rights even if they can’t have their conviction removed from their record or reduced to a misdemeanor. In a 2010 special session, gun rights opponents in the legislature made an effort to enact additional time restrictions and other restrictions on restoration of rights, related to the nature of the underlying felony, but that effort was turned back by gun rights advocates led by the NRA. Expect another effort by gun rights opponents to enact further restrictions on restoration of gun rights during the 2011 legislative session. Persons with felony convictions who want their rights restored should act now.
Restoration of gun rights is allowed for persons with felony convictions who can demonstrate that they do not pose a threat to the safety of the public or themselves.
We at James F. O’Rourke, Jr. and Associates work with our clients to gather and present information to persuade a judge that you meet the statutory standard and are entitled to have this important right restored to you.
Oregon Concealed Weapons Permits
Oregon also has a broadly written law allowing law abiding citizens the right to apply for a permit to carry a concealed weapon. Prior to this law, individual counties had a patchwork of restrictions that required people to demonstrate that they had a need for a concealed weapon before a permit could issue. In the 1980’s, the legislature enacted a statute that allows any person with a clean record and the desire to carry a concealed weapon the right to a permit after a background check and the completion of a gun safety course. Also, the legislature prohibited individual counties and cities from setting more restrictive standards.
Still, some counties attempt to deny concealed weapons permits to qualified people. Fortunately, there is an appeal process. We at James F. O’Rourke, Jr. and Associates we represent people in appeals from the wrongful denial of a concealed weapons permit.
Oregon Firearms Criminal Charges
The following are the most frequently charged crimes involving firearms.
1. Unlawful Use of a Weapon – ORS 166.220
A person can commit the offense of Unlawful Use of a Weapon in two different ways.
First, a person violates this law if the person attempts to unlawfully use a firearm against another person or carries or possesses a firearm with the intent to use it unlawfully against another person. This statute does not require that the firearm actually be discharged. The crime is based on evidence of a person’s intent to use the firearm unlawfully against another person.
In order to convict you of Unlawful Use of a Weapon, the state must prove that (1) on a certain day (2) in a certain county (3) in Oregon (4) you (5) attempted to use a firearm unlawfully or (6) carried or possessed a firearm with the intent to use it unlawfully (7) against another person.
Second, a person violates this law if the person intentionally discharges a firearm in a city, residential area or within an urban growth boundary at, or in the direction of, any person, building, structure or vehicle that is within range of the firearm.
In order to convict you of Unlawful Use of a Weapon, the state must prove that (1) on a certain day (2) in a certain county (3) in Oregon (4) within a city, residential area or within an urban growth boundary (5) you (6) intentionally (7) discharged a firearm (8) at or in the direction of a person, building, structure or vehicle (9) that was within the range of that weapon.
2. Unlawful Possession of a Firearm – ORS 166.250
A person can commit the crime of Unlawful Possession of a Firearm in numerous different ways.
The most common way you can violate this statute is by carrying a weapon concealed on your person or within your vehicle without having a concealed weapon’s permit. There are special rules for weapons that are concealed in vehicles. The first rule is that the weapon must be placed in the trunk of a vehicle. If the vehicle has no trunk it may be concealed in the passenger compartment provided that it is in a locked container, glove compartment or center console and that the key is not in the lock.
The second manner in which a person can commit the offense of Unlawful Possession of a Firearm is by having a firearm in their possession when you: (1) are a minor; (2) are a person found to be within the jurisdiction of Juvenile Court for conduct that would be a felony for an adult and when they are less than four years from the date they wee discharged from the jurisdiction of the Juvenile Court; (3) have been found to be mentally ill and committed to an institution; (4) are a convicted felon; or (5) have been found guilty except for insanity of a felony.
In order to convict you of Unlawful Possession of a Firearm, the state must prove that (1) on a certain day (2) in a certain county (3) in Oregon (4) you (5) carried a concealed firearm on your person.
In order to convict you of Unlawful Possession of a Firearm, the state must prove that (1) on a certain day (2) in a certain county (3) in Oregon (4) you (5) had a firearm concealed in your vehicle (6) that was readily accessible to you.
In order to convict you of Unlawful Possession of a Firearm, the state must prove that (1) on a certain day (2) in a certain county (3) in Oregon (4) you (5) possessed a firearm; and (6) you are a minor, or are a person adjudicated for a Juvenile Court felony and are less than four years from discharge from your sentence, or have been found mentally ill and committed to an institution, or are a convicted felon, or that you have been found guilty except for insanity of a felony.
3. Felon in Possession of Certain Weapons – ORS 166.270
This offense is typically referred to as “ex con in possession.” This crime includes a variety of restricted weapons (such as certain knives, brass knuckles, clubs and stun guns) but is most commonly used for felons who unlawfully possess firearms.
The prohibition on possession of firearms includes any gun you own, possess or have under your custody and control. There are limitations and exceptions. A person who has been convicted of a single non-violent felony, and who has been discharged from parole for more than 15 years, is not subject to this law. However, they are subject to the misdemeanor crime of Unlawful Possession of a Firearm.
In order to convict you of Felon in Possession of a Firearm, the state must prove that (1) on a certain day (2) in a certain county (3) in Oregon (4) you (5) possessed a firearm; and (6) you have been convicted of a felony in any state or federal court.
It is also worth considering the Federal Law implications of being a felon in possession of a firearm. Under the Armed Career Criminal Act, 18 USC _ 924 a person who has been convicted of three or more “serious felonies” (involving violence or drug trafficking) are subject to a minimum sentence of 15 years in federal prison if they are found in possession of a firearm. It is common for state District Attorneys to threaten referral of a person to federal court under this Act in order to force a person to accept a plea offer in state court, usually with a prison term.
4. Enhanced penalty for use of firearm during commission of felony – ORS 166.610
Oregon Law allows for enhanced penalties in the form of minimum prison terms for any person who uses or threatens to use a firearm during the commission of any crime. This aggravating conduct must be pleaded in the Indictment using the term “With a Firearm” in addition to the pleading of the underlying crime.
The first time a person is subject to a “gun minimum” sentence the court is required to impose a sentence of at least five years in prison, unless the firearm in question is a machine gun, sawed off shot-gun or a weapon with a silencer, in which case the minimum sentence is ten years. The second time a person is subject to a “gun minimum” sentence the court is required to impose a minimum sentence of ten years, and the third time the court is required to impose a minimum sentence of fifteen years.
GET ADVICE FROM AN EXPERIENCED OREGON GUN RIGHTS ATTORNEY BEFORE YOU MAKE ANY DECISIONS OR SAY
ANYTHING TO ANYONE.
Call us for a free telephone consultation at 503-221-1425 or you can tell us about your case here.
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