Gun ruling cites framers' intent

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Gun ruling cites framers' intent 11/01/01ASHBEL S. GREEN The Oregon Court of Appeals on Wednesday upheld the conviction of a Douglas County man charged with being a felon in possession of a firearm, but the ruling seemed to open the door to future challenges of regulations that restrict the rights of law-abiding citizens to have firearms. The court rejected an appeal by Mark Lee Hirsch, 54, who was convicted in 1999 of being a felon in possession of a firearm after he took a rifle into a gun shop. He had a criminal record, including a drug felony. The court said prohibiting felons from possessing firearms did not violate the Oregon Constitution's right to bear arms. "We find nothing in the text or the history of Article I, Section 27, to suggest that its framers would have understood the Oregon Constitution to provide broader protection than what had been established by the Second Amendment and the constitutions of other states, at least insofar as the regulation of a felon's possession of arms is concerned," Judge Jack Landau wrote. In order to determine the intent of the framers, the court looked at several historical sources. "To begin with, the right to bear arms has never been understood to be absolute," Landau wrote. "The English antecedents to the American constitutional guarantee expressed the right as a conditional one." The Second Amendment always has allowed limits on the rights of criminals to bear arms, Landau wrote, and nothing in the historical record indicates the Oregon Constitution's framers intended to provide broader protections that would prevent the state from prohibiting felons from possessing firearms. Kevin Neely, spokesman for the Oregon Department of Justice, said the ruling is interesting because Oregon courts generally have not looked at the framers' original intent in interpreting the right to bear arms. Although Neely would not speculate on specific gun regulations, he agreed that the ruling raises questions about how the court would look at challenges to gun restrictions on law-abiding citizens, including carrying concealed firearms, background checks and waiting periods. "If the courts choose ultimately to look at it from that perspective, there could be some interesting rulings," Neely said. In recent years, the court has looked at the original intent of the framers to overturn laws that capped pain and suffering damages in civil suits, along with laws that prohibited certain injured workers from suing their bosses. In addition, the court, citing the framers' original intent, has determined that the Oregon Constitution provides greater free speech protection, and rights against unreasonable searches and seizures, than the U.S. Constitution provides. "It certainly is a reasonable assumption that the court might later find that the Oregon Constitution gives a broader right to bear arms than the Second Amendment does," said James Westwood, a Portland attorney and constitutional law expert. You can reach Tony Green at 503-221-8202 or by e-mail at Tonygreen@news.oregonian.com http://www.oregonlive.com/news/oregonian/index.ssf?/xml/story.ssf/html_standard.xsl?/base/news/10046193491392192.xml