483 P.3d 53
Or. Ct. App.2021Background
- Defendant convicted under ORS 166.270(1) (felon in possession of a firearm); indictment alleged predicate felony: unlawful possession of methamphetamine.
- Defendant filed a demurrer, arguing the statute is an "absolute ban" and, as applied to her, violates Article I, §27 of the Oregon Constitution and the Second Amendment.
- Demurrer review limited to the face of the indictment and applicable law; defendant relied only on allegations in the indictment (no additional factual record about the predicate offense or her personal circumstances).
- ORS 166.270(1) generally bars firearm possession by anyone convicted of a felony; subsection (4) and ORS 166.274 provide limited exceptions and a relief-from-disability process after certain conditions/time.
- Oregon courts have recognized that Article I, §27 is not absolute and that the legislature may regulate weapon possession for public safety; federal courts post-Heller are split on as-applied challenges to felon dispossession laws but have not invalidated them.
- The Court of Appeals affirmed: state-constitutional challenge rejected based on precedent; Second Amendment as-applied challenge failed because defendant did not present facts showing she falls outside historically excluded classes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 166.270(1) violates Article I, §27 as applied | State: statute is a permissible public-safety regulation within legislature's authority | Shelnutt: statute is an absolute ban requiring strict scrutiny; application to her conviction is unconstitutional | Rejected — Article I, §27 is not absolute; legislature has wide latitude to restrict weapons possession for public safety |
| Whether ORS 166.270(1) violates the Second Amendment as applied to a nonviolent drug felony predicate | State: felon dispossession is historically tied to public safety and presumptively lawful | Shelnutt: categorical ban must survive strict scrutiny; her nonviolent predicate means she should retain Second Amendment protection | Rejected — as-applied challenge fails on demurrer; defendant offered no facts beyond indictment to show she is outside historically excluded classes |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (recognized an individual right to possess firearms, but acknowledged longstanding regulatory measures)
- State v. Christian, 354 Or. 22 (2013) (Article I, §27 not absolute; legislature may enact regulations to promote public safety)
- State v. Hirsch/Friend, 338 Or. 622 (2005) (upheld felon dispossession against overbreadth challenge; legislative classification of felons as public-safety risks)
- State v. Beeman, 290 Or. App. 429 (2018) (upheld ORS 166.270 under intermediate scrutiny in a facial challenge)
- Binderup v. Attorney Gen. United States of Am., 836 F.3d 336 (3d Cir. 2016) (treated felon dispossession as presumptively lawful but allowed as-applied rebuttal for nonserious offenses)
- Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (rejected facial and as-applied challenges for serious nonviolent convictions; applied an intermediate-scrutiny-like test)
- Folajtar v. Attorney Gen. of the United States, 980 F.3d 897 (3d Cir. 2020) (discussed limits and potential exceptional felonies; affirmed that felon dispossession generally stands)
- Medina v. Whitaker, 913 F.3d 152 (D.C. Cir. 2019) (overview of circuit split; held non-dangerous felons are not entitled to Second Amendment protection)