Case Information
August 15, 2013 No. 35 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON and City of Portland, Respondents on Review , v .
JONATHAN D. CHRISTIAN, aka Jonathan David Christian, Petitioner on Review .
(CC 080951814; CA A142137; SC S060407) On review from the Court of Appeals.* Argued and submitted March 11, 2013, at Lewis & Clark College of Law, Portland.
Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief was Peter Gartlan, Chief Defender.
Harry Auerbach, Chief Deputy City Attorney, Portland, argued the cause and filed the brief for respondents on review.
Jerry Lidz, Eugene City Attorney’s Office, filed the brief for amicus curiae League of Oregon Cities. With him on the brief was Sean E. O’Day, League of Oregon Cities.
Robert M. Atkinson, Portland, filed the brief for amicus curiae Robert M. Atkinson.
Paul C. Elsner, Beery, Elsner & Hammond, LLP, Portland, filed the brief for amici curiae Major City Chiefs Association, International Municipal Lawyers Association, and The United States Conference of Mayors. With him on the brief were Chad A. Jacobs, Portland, John Daniel Reaves, Washington DC, and Lawrence Rosenthal, Orange, California.
______________ **Appeal from Multnomah County Circuit Court, John A. Wittmayer, Judge.
BALDWIN, J.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed. *2
In a criminal case in which defendant was convicted in part of violating
Portland City Code (PCC) 14A.60.010, which prohibits the carrying of a firearm
in a public place having recklessly failed to unload it, defendant unsuccessfully
moved to dismiss and demurrered on the ground that the ordinance violated
Article I, section 27, of the Oregon Constitution and the Second Amendment
to the United States Constitution. The Court of Appeals affirmed, concluding
that PCC 14A.60.010 was not overbroad under Article I, section 27, and did not
violate the Second Amendment. Defendant sought review, again asserting that
PCC 14A.60.010 was overbroad in violation of Article I, section 27, and violated
the Second Amendment.
Held
: (1) overbreadth challenges are not cognizable in
Article I, section 27, cases; (2)
State v. Blocker
,
** Brewer, J., did not participate in the consideration or decision of this case. BALDWIN, J.
Defendant was convicted of several weapons-related
charges based on his possession of loaded semiautomatic
handguns and a knife in a public place within the city of
Portland. The Court of Appeals affirmed.
State v. Christian
,
I. BACKGROUND
In September 2008, defendant entered a convenience store in Portland and placed a black bag behind the counter. Defendant then exited the store and sat on a chair in front of the store. Shortly thereafter, Officers Laws and Berne approached defendant. Berne obtained defendant’s consent *3 to search him and found an empty firearm holster, a loaded magazine, two knives, one of which was concealed in his pocket, and a can of pepper spray. Berne asked whether defendant had firearms nearby, and defendant stated that he had placed firearms inside the store. The officers entered the store and retrieved the black bag from behind the counter. With defendant’s consent, the officers searched the bag and discovered two loaded nine-millimeter semiautomatic hand- guns and additional loaded magazines. The officers obtained consent to search defendant’s vehicle and found a .22-caliber rifle, two sets of handcuffs, police batons, flashlights, and binoculars. [1]
asserted an “as applied” challenge to the ordinance at issue in this appeal. the claim of error was preserved in the lower court and is assigned as error in the
ORAP 5.45(1) (“No matter claimed as error will be considered on appeal unless
See
opening brief * * *.”). An “as applied” constitutional challenge asserts that a law
assert an “as applied” challenge to the ordinance at any point in the proceedings
challenge even when a law is constitutional on its face. Here, defendant did not
has been applied in a manner that violates the rights of the person making the
such a challenge.
Christian
,
Before trial, defendant filed motions to dismiss and
a demurrer, arguing that the state’s concealed firearm
statute and the city’s ordinance violated Article I, section 27,
of the Oregon Constitution
[3]
and the Second Amendment to
the United States Constitution.
[4]
Defendant contended that
the state statute and the city’s ordinance were unconsti-
tutionally overbroad in violation of Article I, section 27,
because, although either could be constitutionally applied
in some circumstances, the provisions impinged on the
constitutional right to bear arms for purposes of self-defense
as recognized in
State v. Hirsch/Friend
,
or upon a public place, including while in a vehicle in a public place, recklessly having failed to remove all the ammunition from the firearm.” The City of Portland was granted the authority to enact the ordinance under ORS 166.173(1), which provides: “A city or county may adopt ordinances to regulate, restrict or prohibit the
*4 possession of loaded firearms in public places as defined in ORS 161.015.” [3] Article I, section 27, of the Oregon Constitution provides: “The people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]” [4] The Second Amendment to the Unites States Constitution provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Defendant appealed, challenging only the constitu- tionality of the Portland ordinance. In a split en banc decision, the majority of the Court of Appeals affirmed, con- cluding that the ordinance was not overbroad under Article I, section 27, and did not otherwise violate the Second Amend- ment. In interpreting the ordinance, the majority of the Court of Appeals determined that a violation of the ordinance occurs when a person knows that he or she possesses or carries a loaded firearm in a public place and recklessly does so anyway by being aware of a substantial risk of harm and consciously disregarding that risk. Christian , 249 Or App at 5-6. In contrast, under the construction of the ordinance advanced by the parties, the ordinance is violated when a person, who is not exempted from the ordinance, possesses a firearm in public and recklessly fails to unload it.
We adopt the construction of the ordinance advanced by the parties, determine that overbreadth challenges are not cognizable in Article I, section 27, cases, and conclude that the ordinance is constitutional under Article I, section 27, of the Oregon Constitution and under the Second Amend- ment to the United States Constitution.
II. ANALYSIS
A. Construction of the Portland Ordinance
Our threshold task is to interpret the meaning and reach of the contested ordinance. As noted, PCC 14A.60.010(A) provides: “It is unlawful for any person to knowingly possess or
carry a firearm, in or upon a public place, including while in a vehicle in a public place, recklessly having failed to remove all the ammunition from the firearm.” The ordinance sets out 14 exceptions to the prohibition, including an exception for persons who are licensed by the State of Oregon to carry a concealed weapon. Other excep- tions include police officers and members of the military in the performance of their official duties, licensed hunters while engaging in hunting activities or traveling for that purpose, and persons traveling to and from established target ranges.
the ordinance, are as follows: The exceptions, which also constitute affirmative defenses to a violation of Many terms in the ordinance have plain meanings that the parties do not dispute. The term “public place” is defined within the Portland City Code in a manner consis- tent with the legislative grant of authority “to regulate, restrict or prohibit the possession of loaded firearms in public places as defined in ORS 161.015.” ORS 166.173(1); see also ORS 161.015 (defining “public places”); PCC 14A.10.010(O) (providing definition of “public places” that parallels ORS 161.015). PCC 14A.20.040 further provides that the city code “shall be construed so as to render it consistent with state criminal law.” Because the city code does not define the terms “knowingly” and “recklessly,” those terms are to be defined as provided for under state criminal law. By incorporating state law, “knowingly” is therefore defined as follows:
“1. A police officer or other duly appointed peace officers, whether active or honorably retired. “2. A member of the military in the performance of official duty. “3. A person licensed to carry a concealed handgun. “4. A person authorized to possess a loaded firearm while in or on a public
building under ORS 166.370. “5. A government employee authorized or required by his or her employ- ment or office to carry firearms. “6. A person summoned by a police officer to assist in making arrests or preserving the peace, while such person is actually engaged in assisting the officer. “7. A merchant who possesses or is engaged in lawfully transporting unloaded firearms as merchandise. “8. Organizations which are by law authorized to purchase or receive weapons from the United States or from this state. “9. Duly authorized military or civil organizations while parading, or their members when going to and from the places of meeting of their organization. “10. A corrections officer while transporting or accompanying an individual convicted of or arrested for an offense and confined in a place of incarceration or detention while outside the confines of the place of incarceration or detention. “11. Persons travelling to and from an established target range, whether public or private, for the purpose of practicing shooting targets at the target ranges. “12. Licensed hunters or fishermen while engaged in hunting or fishing, or while going to or returning from a hunting or fishing expedition. “13. A person authorized by permit of the Chief of Police to possess a loaded firearm, clip, or magazine in a public place in the City of Portland. “14. A security guard employed at a financial institution insured by the Federal Deposit Insurance Corporation while the security guard is on duty.” PCC 14A.60.010(C).
“ ‘Knowingly’ or ‘with knowledge,’ when used with respect to conduct or to a circumstance described by a statute defin- ing an offense, means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists.” ORS 161.085(8). “Recklessly” is likewise defined as follows:
“ ‘Recklessly,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of *6 such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.” ORS 161.085(9).
In light of those definitions, the parties agree that the only ambiguity in the text of the ordinance relates to the meaning of the word “recklessly,” based on the placement of that word. The Court of Appeals concluded that “recklessly,” which appears in the second clause of the provision, modified the phrase “knowingly possess or carry a firearm” in the first clause of the provision. Christian , 249 Or App at 5-7. That interpretation requires that a person have knowledge that the firearm that he or she possesses in public is loaded and nevertheless recklessly proceed with an awareness that doing so creates an unreasonable and unjustifiable risk of harm. In contrast, the parties and the dissents below interpret the word “recklessly” to modify the phrase “having failed to remove all the ammunition from the firearm” and, as a result, adopt a broader construction of the ordinance. Under that construction, a person violates the ordinance if that person knowingly possesses or carries a firearm in pub- lic and is aware of and disregards a substantial risk that the firearm is loaded.
A grammatical reading of the ordinance is that
“recklessly,” an adverb, modifies the phrase that immediately
follows it.
See Delgado v. Souders
,
Based on that construction, we make several ini- tial observations about the reach of the ordinance. First, the ordinance is not directed in any way to the manner of pos- session or use of firearms for self-defense within the home. By definition, the areas that the ordinance regulates are public places only. Second, the ordinance does not prohibit the mere possession of firearms in public places but spe- cifically regulates only the manner of possession, namely, knowingly possessing or carrying a loaded firearm in public and recklessly failing to remove all of the ammunition. Third, with the exceptions noted, the ordinance prohibits possessing or carrying of loaded firearms in all public places. Significantly, the ordinance does not prohibit a person from knowingly possessing or carrying a loaded firearm in a *7 public place if the “person [is] licensed to carry a concealed handgun.” PCC 14A.60.010(C)(3).
With those points in mind, we return to the parties’ arguments on review. Defendant challenges the ordinance under Article I, section 27, as facially overbroad. Defendant’s overbreadth challenge is based on the contention that the individual right to bear arms for the purpose of defense guaranteed by Article I, section 27, includes an unlimited right to carry a loaded firearm in all public places in a man- ner that would allow a person to immediately use the firearm to resist a deadly attack.
In response, the city and amicus curiae League of Oregon Cities ( amicus ) make a principled argument that overbreadth challenges that question the validity of all conceivable applications of a challenged law should not be cognizable in Article I, section 27, cases. To inform our decision in this case, we first turn to a brief review of our Article I, section 27, jurisprudence. We then examine the justification for overbreadth challenges in Article I, section 27, cases.
B. Article I, Section 27, Right to Bear Arms
Since statehood, Article I, section 27, has provided that “[t]he people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]” We have interpreted the meaning and scope of that constitutional guarantee and the legislature’s authority to regulate the manner of possession or use of protected arms on several occasions.
We have held that Article I, section 27, prevents the
legislature from infringing on the people’s individual right
to bear arms for purposes limited to self-defense.
State v.
Kessler
,
Of significance to this case, in Kessler , we considered early American examples of restrictions on the rights of individuals to “carry or use” personal weapons:
“A 1678 Massachusetts law forbade shooting near any
house, barn, garden, or highway in any town where a per-
son may be ‘killed, wounded, or otherwise damaged.’ The
courts of many states have upheld statutes which restrict
the possession or manner of carrying personal weapons.
The reasoning of the courts is generally that a regulation
is valid if the aim of public safety does not frustrate the
guarantees of the state constitution. For example many
courts have upheld statutes prohibiting the carrying of
concealed weapons,
see, e.g.
,
State v. Hart
, 66 Idaho 217,
157 P2d 72 (1945); and statutes prohibiting possession of
firearms by felons,
see, e.g.
,
State v. Cartwright
,
reversed because the underlying statute did not specifically
regulate the manner of possession or use of a billy club;
rather, the statute banned outright the mere possession of
the club, a weapon commonly used for personal defense.
See also State v. Blocker
, 291 Or 255, 630 P2d 824 (1981)
(conviction for mere possession of a billy club in public
reversed when statute did not specifically regulate the use
or manner of possession);
State v. Delgado
,
We have also held that the drafters of Article I,
section 27, did not intend to deprive the legislature of the
authority to specifically regulate the manner of possession
or use of arms when it determines that such regulation is
necessary to protect public safety, including, for example,
the enactment of a prohibition on the carrying of concealed
weapons or a restriction on the possession of arms by felons
as members of a group whose prior conduct demonstrated an
identifiable threat to public safety.
See Hirsch/Friend,
338
Or 622;
State v. Cartwright
,
In Robinson , we rejected an Article I, section 27, challenge directed at a statute prohibiting unnaturalized foreign-born persons and certain felons from owning or possessing concealable firearms. We concluded that Article I, section 27, was patterned on Indiana state constitutional provisions, and we followed a persuasive decision of the Indiana Supreme Court:
“Art I, § 27, was patterned upon and is identical to Art. I,
§§ 32 and 33, Constitution of Indiana.
[6]
McIntyre v. State
,
170 Ind 163,
people shall have a right to bear arms, for the defense of themselves and the State.” Article I, section 32, of the Indiana Constitution of 1851 provided that “[t]he Article I, section 33, of the Indiana Constitution of 1851 provided that “[t]he military shall be kept in strict subordination to the civil power.” In Robinson , we quoted with approval the observation *9 made in People v. McCloskey , 76 Cal App 227, 244 P 930 (1926), about the legislature’s authority to regulate the carry- ing and use of firearms to promote public safety:
“It has been held in a number of cases that the act is a valid and reasonable exercise of the police power of the state. It is a well-recognized function of the legislature in the exercise of the police power to restrain dangerous practices and to regulate the carrying and use of firearms and other weapons in the interest of public safety * * *.” Id. at 618 (internal quotation marks omitted; omission in original). [7]
Most recently, we extensively discussed the text and
history of Article I, section 27, in
Hirsch/Friend
, a case in which
the crime of felon in possession of a firearm, ORS 166.270(1), was
challenged as infringing on the right to bear arms guaranteed
under that constitutional provision. We concluded that, “in
enacting ORS 166.270(1), the legislature acted within its proper
authority to restrict the possession of arms by the members of
a group whose conduct demonstrates an identifiable threat to
public safety.”
Hirsch/Friend
,
Hirsch/Friend
the subsequent change in the usage of that phrase in of the state” when discussing the proper scope of legislative authority. We discussed
:
Robinson
When was decided, courts commonly referred to “the police power
“As noted, in both
Robinson
and
Cartwright
, this court grounded its
conclusions that the statutory prohibition at issue did not contravene Article I,
section 27, in the ‘police power’ doctrine, which generally seeks to determine
whether a legislative enactment reasonably ‘is in the interests of the public
health, safety, and general welfare.’
Christian et al. v. La Forge
,
“Nothing in the history of the English right suggests that the drafters of the English Bill of Rights intended the arms provision to preclude the disarmament of serious lawbreakers; indeed, the refusal of the King’s Bench in 1686 to enforce firearms restrictions against law-abiding citizens reinforces that reading of the history. That, in turn, counters any notion that the traditional right to bear arms inherited from England provided an absolute guarantee to those who violate criminal laws.” at 675-76. Second, in England and colonial America, the regulation of arms was generally directed at public safety concerns
“such as restrictions extending to those who posed a threat to the public peace or who were perceived to pose such a threat, and other prohibitions on the carrying of concealed weapons and the carrying of weapons or shooting of wea- pons in towns or crowded areas.” at 677. And, finally, we concluded that legislative enact- ments restricting arms must satisfy the purpose of promot- ing public safety:
“[T]he legislature’s authority to restrict the bearing of arms is [not] so broad as to be unlimited. Rather, any restriction must satisfy the purpose of that authority in the face of Article I, section 27: the protection of public safety.” Id.
Because the right to bear arms is not an absolute right, our Article I, section 27, holdings reflect a judicial recog- nition that the legislature has wide latitude to enact specific regulations restricting the possession and use of weapons to promote public safety. We have consistently acknowledged the legislature’s authority to enact reasonable regulations to promote public safety as long as the enactment does not unduly frustrate the individual right to bear arms for the purpose of self-defense as guaranteed by Article I, section 27. In the United States generally, it has been recognized that the right to bear arms is not absolute and that the exercise of legislative authority reasonably restricting the right to bear arms to promote public safety is constitutionally permissible. In Hirsch/Friend , we observed that
“most courts addressing challenges to statutory restrictions have concluded that state constitutional arms guarantees generally are subject to reasonable restraints. See generally John Levin, The Right to Bear Arms: The Development of the American Experience , 48 Chi-Kent L Rev, 148, 159 (1971) (so noting). Most significantly for our purposes * * *, the Indiana Supreme Court construed Article I, section 20, of the Indiana Constitution of 1816—which was virtually identical to Article I, section 27, of the Oregon Constitution— to allow legislative prohibition of the wearing or carrying of concealed weapons.”
As with a prohibition on the carrying of concealed weapons in the nineteenth century, the ordinance at issue here reflects a contemporary legislative response to identi- fiable threats to public safety stemming from the carrying of loaded firearms in public within a city, when the conduct creates an unreasonable and unjustified risk of harm to members of the public. The ordinance reflects a legislative determination that the risk of death or serious injury to members of the public moving about in public places is increased by the threat posed by individuals who recklessly fail to unload their firearms.
With those principles in mind, we now turn to defen- dant’s overbreadth challenge and examine the instances in which we have allowed overbreadth challenges in Article I, section 27, cases.
have historically been upheld in the United States: As noted in Heller , generally, prohibitions on carrying concealed weapons “Like most rights, the right secured by the Second Amendment is not
unlimited. From Blackstone through the 19th-century cases, commentators
and courts routinely explained that the right was not a right to keep and carry
any weapon whatsoever in any manner whatsoever and for whatever purpose.
See,
e.g
.,
Sheldon
, in 5 Blume, 346; Rawle 123; Pomeroy 152-153; Abbott 333.
For example, the majority of the 19th-century courts to consider the question
held that prohibitions on carrying concealed weapons were lawful under the
Second Amendment or state analogues. See,
e.g.
,
State v. Chandler
, 5 La Ann
at 489-90;
Nunn v. State
, 1 Ga at 251; see generally 2 Kent *340, n 2; The
American Students’ Blackstone 84, n 11 (G. Chase ed 1884).”
C. Defendant’s Article I, Section 27, Overbreadth Challenge
Defendant’s overbreadth argument is that the ordi-
nance, by prohibiting the possession or carrying of loaded
firearms in all public places, unduly limits the constitu-
tionally protected activity of self-defense. We have allowed
overbreadth challenges in Article I, section 27, cases on
two occasions. In
Blocker
,
In
Hirsch/Friend
,
“The state is correct that, when bringing certain facial constitutional challenges to a statute, the challenger ordi- narily must establish that the statute is unconstitutional in all its applications. Where that principle applies, if the challenger is unable to establish facial unconstitutionality in that manner, then the challenger is left to argue only that the statute is unconstitutional as applied to the particular facts at hand.
“However, defendants here do not assert that ORS 166.270(1) is unconstitutional on its face because it vio- lates Article I, section 27, in all its applications. Rather, they particularly argue that, on its face, that statute is unconstitutionally overbroad. The term ‘overbreadth’ con- notes a particular type of facial constitutional challenge in which the challenger contends that, although a statute con- stitutionally could apply in some circumstances, it imper- missibly, and necessarily, impinges on a constitutional guarantee in other circumstances by prohibiting conduct that is constitutionally protected. Unlike with other facial challenges, a challenger raising an overbreadth challenge need not demonstrate that the statute at issue is uncon- stitutional under the particular circumstances at hand. Rather, the challenger will prevail in his or her facial challenge if the court concludes that the statute in question prohibits constitutionally protected conduct of any kind.” at 627-28 (internal citation and footnote omitted). In Hirsch/Friend , we limited our justification for permitting an overbreadth challenge under Article I, section 27, to a citation of Blocker and the citation of several freedom of expression and assembly cases. [9] Indeed, Hirsch/Friend could be easily misread as authority for asserting overbreadth challenges whenever any statute, on its face, impinges on conduct protected by any constitutional provision. See id. at 628-29.
Thus, in Blocker and Hirsch/Friend , this court has addressed overbreadth challenges in Article I, section 27, in response to particular arguments raised by the parties in those cases. In neither case did the state counter the defendants’ overbreadth theories by claiming that such a theory was unavailable under Article I, section 27. Conse- quently, this court had no occasion to consider whether an overbreadth challenge should be allowed in Article I, illustrative of when we have addressed overbreadth challenges: (Article I, section 8) and right to peaceable assembly cases (Article I, section 26) as [9] Hirsch/Friend In , we specifically referred to freedom of expression cases
“To illustrate, this court on many occasions has addressed overbreadth chal-
lenges involving Article I, section 8, of the Oregon Constitution, which delin-
eates constitutionally protected conduct by guaranteeing the right to free
expression of opinion and the right to speak, write, or print freely on any
subject whatever.
See, e.g.
,
City of Hillsboro v. Purcell
, 306 Or 547, 556, 761
P2d 510 (1988);
State v. Ray
, 302 Or 595, 733 P2d 28 (1987) (both agreeing
with claims asserting overbreadth under Article I, section 8). More recently,
this court also addressed an overbreadth challenge invoking both Article I,
section 8, and Article I, section 26, which delineates constitutionally protected
conduct by guaranteeing the right to peaceable assembly.
State v. Ausmus
, 336
Or 493,
section 27, cases. Both the city and amicus now urge us to limit cognizable constitutional challenges under Article I, section 27, to “as applied” challenges and facial challenges that do not raise issues of overbreadth. The Court of Appeals, in this case, also questioned the justification for recognizing overbreadth challenges under Article I, section 27. We *13 accept the opportunity to examine the justification for recog- nizing overbreadth challenges in Article I, section 27, cases.
The city and amicus contend that the strong rationale justifying overbreadth challenges whenever laws might “chill” freedom of expression does not apply in the con- text of Article I, section 27, cases. The rationale for recognizing overbreadth challenges in First Amendment free speech cases has been articulated by the United States Supreme Court as follows:
“We have provided this expansive remedy out of con-
cern that the threat of enforcement of an overbroad law
may deter or ‘chill’ constitutionally protected speech—
especially when the overbroad statute imposes criminal
sanctions. Many persons, rather than undertake the con-
siderable burden (and sometimes risk) of vindicating their
rights through case-by-case litigation, will choose simply
to abstain from protected speech, harming not only them-
selves but society as a whole, which is deprived of the unin-
hibited marketplace of ideas.”
Virginia v. Hicks
,
The Court of Appeals stated: “It is also worth noting that this ‘overbreadth’ rule derives from United
States Supreme Court cases under the First Amendment,
State v. Blocker
,
291 Or 255, 261, 630 P2d 824 (1981), and is, in federal law, limited to such
cases,
Broadrick v. Oklahoma
,
As the Supreme Court earlier stated in
Broadrick v.
Oklahoma
,
“It has long been recognized that the First Amendment
needs breathing space * * *. Litigants, therefore, are permit-
ted to challenge a statute not because their own rights
of free expression are violated, but because of a judicial
prediction or assumption that the statute’s very existence
may cause others not before the court to refrain from con-
stitutionally protected speech or expression.”
See also Virginia v. Black
,
The overbreadth doctrine has been characterized as the Supreme Court’s
“solution to this speech-specific problem [of a chilling effect
on First Amendment rights]. * * * And as expression is,
by its very nature, so mutable, overbroad regulations can
easily encourage speakers to modify their speech, shifting
it away from controversy. No analogous arguments obtain
*14
in the Second Amendment context.”
United States v. Chester
, 628 F3d 673, 688 (4th Cir 2010).
The Supreme Court has not allowed overbreadth challenges
in the context of commercial speech,
Bates v. State Bar of
Arizona
,
As we earlier established, the legislature may spe- cifically regulate the manner of possession and use of pro- tected weapons to promote public safety as long as the exer- cise of that authority does not unduly frustrate the right to bear arms guaranteed by Article I, section 27. On exami- nation, we now conclude that the justification for recognizing overbreadth challenges in cases involving freedom of expres- sion and peaceable assembly does not apply in the context of Article I, section 27, cases. We agree with the city and amicus that, unlike protected speech and assembly, recog- nizing overbreadth challenges in Article I, section 27, cases is not necessary because the enforcement of an overbroad restriction on the right to bear arms does not tend to similarly deter or “chill” conduct that that provision protects.
We also emphasize the disadvantage of recognizing overbreadth challenges to laws without a substantial justifi- cation for doing so. In Hicks , the Supreme Court discussed that disadvantage in the First Amendment area:
“[H]owever, there comes a point at which the chilling effect of an overbroad law, significant through it may be, can- not justify prohibiting all enforcement of that law— particularly a law that reflects legitimate state interests in maintaining comprehensive controls over harmful, constitu- tionally unprotected conduct. For there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected con- duct.”
539 US at 119 (internal quotation marks and citation omitted; emphasis in original).
As the Supreme Court stated in
Broadrick
, “[a]ppli-
cation of the overbreadth doctrine [in the First Amendment
area] is, manifestly, strong medicine. It has been employed
by the Court sparingly and only as a last resort.” 413 US at
613. When an overbroad law cannot be narrowly construed,
a successful overbreadth challenge will often result in the
striking of major parts of an otherwise valid law reflecting
legitimate state interests. Moreover, overbreadth challenges
tend to raise hypothetical questions about the application
of laws untethered by facts on the ground. Overbreadth
challenges also ask courts to determine the rights of parties
who are not before the court. That is why, as a general rule, the
*15
constitutionality of laws are traditionally determined in the
context of an actual factual setting that makes a particular
determination of the rights of the parties necessary.
See,
e.g.
,
Jensen v. Whitlow
,
For the foregoing reasons, we hold that overbreadth challenges are not cognizable in Article I, section 27, chal- lenges. As such, the justification for recognizing overbreadth challenges in freedom of expression and assembly cases does not apply in the context of Article I, section 27, cases—a question that we were not asked to decide in Blocker and Hirsch/Friend . See Stranahan v. Fred Meyer, Inc. , 331 Or 38, 54, 11 P3d 228 (2000) (“Consistent with the [doctrine of stare decisis ], we remain willing to reconsider a previous ruling under the Oregon Constitution whenever a party presents to us a principled argument suggesting that, in an earlier decision, this court wrongly considered or wrongly decided the issue in question.”). To the extent that Blocker and Hirsch/Friend may provide authority for recognizing overbreadth challenges in Article I, section 27, cases, we overrule those cases . Blocker and Hirsch/Friend otherwise remain good law.
Accordingly, we do not address defendant’s over- breadth challenge in this case. Instead, we consider defen- dant’s constitutional challenge as a conventional facial challenge.
D. Article I, Section 27 , Facial Challenge
Our analysis of defendant’s facial challenge is
limited to whether the ordinance is capable of constitutional
application in any circumstance.
State v. Sutherland
, 329 Or
359, 365,
Here, therefore, it cannot be argued that “there can be no reasonably likely circumstances in which application of [the ordinance] would pass constitutional muster.” Sutherland , 329 Or at 365. As just one example, the ordi- nance permits a person who is licensed to do so to carry a firearm for self-defense. PCC 14A.60.010(C)(3). We therefore reject defendant’s facial challenge to the ordinance under Article I, section 27.
E. Defendant’s Second Amendment Challenge
Defendant also challenges the validity of the ordi-
nance under the Second Amendment to the United States
Constitution. The Second Amendment provides that “[a] well
regulated Militia, being necessary to the security of a free
state, the right to the people to keep and bear arms, shall
not be infringed.” Defendant bases his challenge on the
Supreme Court decisions in
Heller
,
In
Heller
, the Supreme Court addressed Second
Amendment challenges to a number of prohibitions on the
possession of handguns enacted by the District of Columbia.
Those prohibitions included, in relevant part, the crimi-
nalization of the carrying of unregistered firearms and a
prohibition on the registration of handguns, and a require-
ment that residents keep lawfully owned firearms unloaded
and disassembled or bound by a trigger lock or similar
device. The respondent was a special police officer whose
application “for a registration certificate for a handgun that
he wished to keep at home” was refused by the District.
Heller
,
After an extensive analysis of the text and historical circumstances pertaining to the Second Amendment, the Court invalidated the District of Columbia statutes as a total ban on handgun possession in the home and an effective ban on the possession of lawful firearms in the home, because the requirements rendered the firearms inoperable. In so doing, the Court explained:
“There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose .”
Id. at 595 (internal citations omitted; emphasis in original). Turning to the District of Columbia laws at issue, the Court further explained:
“As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.
“* * * [T]he inherent right of self-defense has been cen- tral to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to “keep” and use for protection of one’s home and family,’ would fail constitutional muster.” Id. at 628-29 (internal citations omitted).
In reaching that result, the Court emphasized that the Second Amendment right to keep and bear arms is not absolute and that lawful regulatory measures have been long recognized under the Second Amendment and state analogues:
“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 626-27 (footnote omitted). The Court also noted that it identified those “presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” at 627 n 26.
In this case, defendant argues that Heller ’s recog- nition of an individual right to keep and bear arms for the purpose of self-defense within the home implies a right to keep and carry loaded firearms in public without restriction. However, Heller does not support that expansive proposition. Further, we have described how the ordinance is not a total ban on the possession of firearms but, instead, specifically regulates the manner of possession and use of firearms in public places. As previously emphasized, the ordinance *18 expressly allows a person to knowingly possess or carry a loaded firearm in public if the “person [is] licensed to carry a concealed handgun.” PCC 14A.60.010(C)(3).
Defendant further contends that this court should apply strict scrutiny in examining whether the ordinance infringes upon his Second Amendment rights. In Heller , the Supreme Court did not designate a standard of review for courts to apply to Second Amendment challenges, concluding that the District of Columbia statutes failed constitutional muster “[u]nder any of the standards of scrutiny [the Court has] applied to enumerated constitutional rights.” 554 US at 628 (footnote omitted). However, the Court did expressly reject a test limited to ascertaining whether a challenged regulation lacks a rational basis, reasoning that, if a rational basis test applied, “the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.” Id. at 628 n 27; see also id . at 634-35 (majority also rejected the interest- based balancing test proposed by dissent).
Drawing on that discussion in Heller , federal courts have employed a two-pronged approach in examining Second Amendment challenges. Under that approach, a reviewing court first “ask[s] whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” United States v. Marzzarella , 614 F3d 85, 89 (3d Cir 2010), cert den , ___ US ___, 131 S Ct 958 (2011). If it does, then the reviewing court must “evaluate the law under some form of means-end scrutiny.” Under that approach, we conclude in the first instance that the ordinance does, to some extent, burden protected conduct falling within the scope of the Second Amendment’s guarantee. [11] Accordingly, we also look to federal law for guidance as to the appropriate level of scrutiny to apply to the ordinance.
Because
Heller
provided only general guidance for
analyzing Second Amendment challenges without designat-
ing the precise level of scrutiny to be applied, federal courts
have attempted to determine an appropriate standard of
review on a case-by-case basis. Some courts have applied a
strict scrutiny standard, which requires courts to examine
whether a challenged law is narrowly tailored to serve a com-
pelling governmental interest.
See Ezell v. City of Chicago
,
However, the majority of federal courts to date have
applied an intermediate scrutiny standard of review to most
Second Amendment challenges.
[12]
“To pass constitutional
muster under intermediate scrutiny, the government has
the burden of demonstrating that its objective is an impor-
tant one and that its objective is advanced by means sub-
stantially related to that objective.”
United States v. Williams,
Our review of federal law suggests that a strict
scrutiny review in Second Amendment cases is appropriate
only when a law imposes an absolute restriction on consti-
tutionally protected activity. Such is not the case here. As
earlier described, the ordinance does not absolutely restrict
the individual right to bear arms in public for the purpose
of self-defense.
See
PCC 14A.60.010(C)(3) (allows person to
States v. Yancey United
conviction for possession of a handgun with an obliterated serial number); ,
Applying the standard of intermediate scrutiny, we
conclude that the city has demonstrated that it is important
to protect the public from the many risks associated with
the presence of loaded firearms in public places. We also
conclude that enforcement of the ordinance, as carefully
drawn, is substantially related to that objective and advances
that objective.
See Williams
, 616 F3d at 692. The city has
demonstrated a sufficiently close fit between the ordinance
and the city’s substantial objective of protecting the public.
See Chester
,
III. CONCLUSION
For the reasons explained, we hold that the ordi- nance is constitutional both under Article I, section 27, of the Oregon Constitution and under the Second Amendment to the United States Constitution.
The decision of the Court of Appeals and the judg- ment of the circuit court are affirmed.