Criminal Defence Attorneys in Oregon Are Fighting a New Gun Ban in Light of a Recent Supreme Court Decision

New Gun Ban: A Portland man convicted of illegally possessing a gun as a felon is fighting the charge in federal court, alleging a U.S. Supreme Court judgement makes it unconstitutional. Another man accused of murder and being a felon with a gun wants the latter charge dismissed, saying it’s unconstitutional.

Criminal Defence Attorneys in Oregon Are Fighting a New Gun Ban in Light of a Recent Supreme Court Decision

Legal watchers think the arguments were inevitable given the Supreme Court’s revised Second Amendment test. The Supreme Court threw down a New York gun-carrying law. Lower courts are just beginning to wrestle with the Supreme Court’s rule and the historical examination it needs, says Jeff Welty, an associate professor of public law and governance at UNC-Chapel Hill.

Welty said he’s not aware of any court finding issue with federal or state laws that ban felons from owning guns, but he expects lower courts to disagree on the right analysis. Leah Bolstad, a federal prosecutor in Portland, defended the allegation and pointed to other federal district courts in California, Idaho, and Montana that have upheld felons with guns cases since June.

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In the New York case, the U.S. Supreme Court ordered lower courts to employ a “text-and-history” test to evaluate gun restriction arguments. If “the Second Amendment’s plain text” protects the plaintiff’s action, courts must assess if the regulation “is compatible with our nation’s historical tradition of weapon regulation.”

Kaneko Tyray Moore was convicted of being a criminal with a gun in December. Portland police located a loaded.40-calibre revolver on the front passenger floorboard of his car after it drove out of the Lone Fir Cemetery, where 20 people had gathered for a barbeque.

New Gun Ban in Light of a Recent Supreme Court Decision
New Gun Ban in Light of a Recent Supreme Court Decision

Schindler told the court that the Second Amendment guarantees “the people’s right to keep and bear arms,” and “the people” isn’t confined to law-abiding, responsible citizens. Schindler argued that Moore is one of “the people” under the Second Amendment. He referenced case law showing states didn’t adopt felony-based gun prohibitions until the early 20th century.

Schindler said that the government can’t show the allegation is “compatible with the Nation’s historical record of firearm regulation.” He claimed it indicates Moore’s indictment is unconstitutional and should be dropped. Bolstad said Schindler misread a Supreme Court ruling. The Supreme Court has called Second Amendment holders “law-abiding” 14 times, Bolstad said. This “excludes convicted felons” like Moore, said Bolstad.

In a concurring opinion, Justice Brett Kavanaugh, joined by Chief Justice John Roberts, said that the result in New York State Rifle & Pistol Association v. Bruen doesn’t affect “longstanding bans on the possession of weapons by convicts.”

Many courts have dismissed similar arguments to the felon gun ban, she noted. She highlighted September and October opinions by other 9th U.S. Circuit Court of Appeals federal judges.

In November, the 3rd U.S. Circuit Court of Appeals maintained the gun possession ban for felons after a Pennsylvania appeal. The court ruled the restriction is in accord with “legislatures’ longstanding right and discretion to disarm persons reluctant to follow the government and its laws, whether or not they’ve shown a penchant for violence.”

In Multnomah County Circuit Court, Dianna Gentry and Sohaye Lee are requesting a judge to dismiss a felon in possession of a gun allegation against Quentin Blackmon. Blackmon is accused of murder and attempted murder in 2020. His lawyers contend that the Second Amendment doesn’t distinguish between felons and “the people,” and the blanket ban on gun possession by felons violates the U.S. Constitution.

Multnomah County assistant district attorney Nicole Harris said, “No Oregon court has handled this precise question.” She requested a judge to read the Supreme Court’s New York opinion. She contended that the Supreme Court cautioned it didn’t intend to give felons “safe harbour” from gun bans. The defence is using Bruen analysis beyond what the Supreme Court suggested, Harris noted.

Next month, Judge Kelly Skye will hear Blackmon’s case. Schindler said he doubts his argument would “get much traction” in federal district court but wants to make a record for appeal. Schindler’s request is pending before U.S. District Judge Karin J. Immergut, who is simultaneously hearing four gun restriction challenges in Oregon.

Before a gun can be sold, a permit, a limit on magazines with more than 10 rounds, and a background check are required. A Harney County judge stopped the measure. After the Bruen ruling, Portland defence lawyer Ryan Scott tweeted, “Oregon attorneys, reach out to me if you need a document challenging Felon in Possession in Oregon.”

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His proposal argued that there was no “historical tradition” in 1791, when the Second Amendment was adopted, against convicts carrying guns. Scott said he doesn’t expect a circuit or district court to rule the case, but the Supreme Court.

Political concerns may prevent even the most independent trial judges from striking the law, Scott warned. He suggested lawyers may have a greater chance of appealing misdemeanour gun laws, such as carrying a loaded gun in public.

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