State v. Christian

22 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.

249 Or App 1, 274 P3d 262 (2012).

Cite as 354 Or 22 (2013) 23

Before Balmer, Chief Justice, and Kistler, Walters, Linder,

Landau, and Baldwin, Justices.**

BALDWIN, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

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, 291 Or 255, 630 P2d 824 (1981)

and State v. Hirsch/Friend, 338 Or 622, 114 P3d 1104 (2005), are overruled

insofar as those cases permitted overbreadth challenges in Article I, section

27, cases; (3) construing defendant’s Article I, section 27, challenge as a facial

challenge, PCC 14A.60.010 did not violate Article I, section 27, because it could

be constitutionally applied in some circumstances; and (4) PCC 14A.60.010 is

substantially related to the city’s important objective in promoting public safety

and, as carefully drawn, it does not violate the Second Amendment.

The decision of the Court of Appeals and the judgments of the circuit court

are affirmed.

______________

**  Brewer, J., did not participate in the consideration or decision of this case.

24 State v. Christian

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,

249 Or App 1, 274 P3d 262 (2012). Defendant petitioned this

court to review his convictions for violating a City of Portland

ordinance prohibiting the possession or the carrying of a

firearm in a public place having recklessly failed to unload

it. After considering defendant’s constitutional challenges to

the ordinance under Article I, section 27, of the Oregon Consti-

tution, and under the Second Amendment to the United States

Constitution, we conclude that the ordinance enacted by the

City of Portland is constitutional, and we affirm.

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

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

1

We only briefly refer to the underlying facts, because defendant has not

asserted an “as applied” challenge to the ordinance at issue in this appeal. See

ORAP 5.45(1) (“No matter claimed as error will be considered on appeal unless

the claim of error was preserved in the lower court and is assigned as error in the

opening brief * * *.”). An “as applied” constitutional challenge asserts that a law

has been applied in a manner that violates the rights of the person making the

challenge even when a law is constitutional on its face. Here, defendant did not

assert an “as applied” challenge to the ordinance at any point in the proceedings

before the Court of Appeals, and that court concluded that defendant did not raise

such a challenge. Christian, 249 Or App at 3 (concluding that defendant challenged

the ordinance facially).

Cite as 354 Or 22 (2013) 25

Defendant was charged with two counts of violating

a state statute prohibiting the carrying of a concealed fire-

arm, two counts of violating a City of Portland ordinance

prohibiting the carrying of a firearm in a public place having

recklessly failed to unload it, and one count of violating a

state law prohibiting the carrying of a concealed knife. With

respect to the four firearm charges, the state alleged that

defendant had violated the state statute and Portland City

Code (PCC) 14A.60.010 (ordinance),2 by carrying the two

loaded handguns, concealed in the black bag, across a public

sidewalk and into the convenience store.

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 Constitution3 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, 338 Or 622, 114 P3d

1104 (2005). Defendant further asserted that the ordinance

violated the Second Amendment as interpreted in District

of Columbia v. Heller, 554 US 570, 128 S Ct 2783, 171 L Ed

2d 637 (2008). The trial court overruled the demurrer and

denied defendant’s motion to dismiss. The case proceeded to

a bench trial, and defendant was convicted on all charges.

2

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 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

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.”

26 State v. Christian

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.5

5

The exceptions, which also constitute affirmative defenses to a violation of

the ordinance, are as follows:

Cite as 354 Or 22 (2013) 27

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).

28 State v. Christian

“ ‘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

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, 334 Or 122, 132, 46 P3d

729 (2002) (interpretation of anti-stalking statute where

placement of adverbs “intentionally,” “knowingly,” and “reck-

lessly” immediately before the verb “engage[ ]” demonstrated

Cite as 354 Or 22 (2013) 29

that the adverbs modified the verb). The first clause of the

ordinance includes the adverb (and mental state) “knowingly,”

to modify the verbs “possess” and “carry.” To also modify

those verbs with “recklessly” unnecessarily creates ambi-

guity with respect to the required mental state for a con-

viction under the ordinance. We therefore conclude that

the proper interpretation of the ordinance is the meaning

agreed to by the parties. Therefore, a person violates the

ordinance when he or she knowingly possesses or carries

a firearm in a public place except under circumstances

specifically exempted.

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

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

30 State v. Christian

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, 289 Or 359, 614 P2d 94 (1980). In Kessler, we also

concluded that the term “arms” includes some firearms

and certain hand-carried weapons commonly used for self-

defense at the time the provision was drafted. Id. at 368.

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, 246 Or 120,

418 P2d 822 (1966).”

Id. at 370 (footnote omitted). The conviction in Kessler was

reversed because the underlying statute did not specifically

Cite as 354 Or 22 (2013) 31

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, 298 Or 395, 692

P2d 610 (1984) (same holding with respect to mere possession

of a switchblade knife when prohibition a total ban).

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, 246 Or 120, 418 P2d 822 (1966),

cert den, 386 US 937 (1967); State v. Robinson, 217 Or 612,

343 P2d 886 (1959).

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, 83 NE 1005, held that the Indiana provision

(§ 32) permits reasonable regulation of the right to bear

arms and that accordingly legislation prohibiting the

carrying of concealed weapons is valid.”

Robinson, 217 Or at 619.

6

Article I, section 32, of the Indiana Constitution of 1851 provided that “[t]he

people shall have a right to bear arms, for the defense of themselves and the State.”

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.”

32 State v. Christian

In Robinson, we quoted with approval the observation

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, 338 Or at 679.

7

When Robinson was decided, courts commonly referred to “the police power

of the state” when discussing the proper scope of legislative authority. We discussed

the subsequent change in the usage of that phrase in Hirsch/Friend:

“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, 194 Or 450,

462, 242 P2d 797 (1952). However, this court in more recent years has

explained that any constitutional notion of the ‘police power’ does not refer to

an independent source of legislative power itself; rather, it merely represents

the legislature’s general plenary power to legislate. Dennehy v. Dept. of Rev.,

305 Or 595, 604 n 3, 756 P2d 13 (1988); see also Eckles v. State of Oregon, 306

Or 380, 399, 760 P2d 846 (1988), cert dismissed, 490 US 1032 (1989) (‘[T]he

“police power” is indistinguishable from the state’s inherent power to enact

laws and regulations; the existence of that power cannot explain the extent to

which the power is constitutionally limited.’). The court similarly has clarified

that ‘the state cannot avoid a constitutional command by “balancing” it against

another of the state’s interests or obligations, such as protection of the “vital

interests” of the people’; rather, any constitutional limitations on the state’s

actions ‘must be found within the language or history’ of the constitution itself.

Eckles, 306 Or at 399.”

338 Or at 638-39. Thus, Robinson and Cartwright were properly decided because

Article I, section 27, did not impose a constitutional limitation on the legislature’s

authority to enact the statutes upheld in those cases.

Cite as 354 Or 22 (2013) 33

Our extensive summary in Hirsch/Friend of his-

torical circumstances pertaining to Article I, section 27,

included several important conclusions pertinent to the

resolution of this case. First, the guarantee is not absolute:

“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.”

Id. 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.”

Id. 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

34 State v. Christian

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.”

338 Or at 648-49 (internal footnote omitted).8

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.

8

As noted in Heller, generally, prohibitions on carrying concealed weapons

have historically been upheld in the United States:

“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).”

554 US at 626.

Cite as 354 Or 22 (2013) 35

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, 291 Or 255, for the first time, we

addressed an overbreadth challenge in an Article I, section

27, case where a statute criminalized the mere possession

of certain weapons, including the possession of a billy club,

without regard to the application of the statute to the facts of

that particular case. Although we had previously addressed

such overbreadth challenges only in freedom of expression

cases, we gave no justification for extending the doctrine to

Article I, section 27, cases. We simply referred to an “over-

broad” challenge “as that term has been developed by the

United States Supreme Court” and “conclude[d] that it is

proper for us to consider defendant’s ‘overbreadth’ attack

to mean that the statute swept so broadly as to infringe

rights that it could not reach, which in this setting means

the right to possesses arms guaranteed by § 27.” Id. at

261-62.

In Hirsch/Friend, 338 Or 622, we considered, and

rejected on the merits, a facial overbreadth challenge under

Article I, section 27, to a statute prohibiting felons from pos-

sessing firearms (ORS 166.270(1)). We discussed the parties’

arguments and the characteristics of overbreadth challenges

as follows:

“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

36 State v. Christian

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.”

Id. 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,

9

In Hirsch/Friend, we specifically referred to freedom of expression cases

(Article I, section 8) and right to peaceable assembly cases (Article I, section 26) as

illustrative of when we have addressed overbreadth challenges:

“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, 85 P3d 864 (2004).”

338 Or at 628.

Cite as 354 Or 22 (2013) 37

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 27.10 We

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, 539 US 113, 119, 123 S Ct 2191, 156 L Ed

2d 148 (2003) (internal citation omitted).

10

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, 413 US 601, 611, 93 S Ct 2908, 37 L Ed 2d 830

(1973). As the Fourth Circuit has explained, overbreadth analysis addresses

a ‘speech-specific problem, [Broadrick] at 611-12. * * * [O]verbroad regulations

[of expression] can easily encourage speakers to modify their speech, shifting

it away from controversy. No analogous arguments obtain in the Second

Amendment context.’ U.S. v. Chester, 628 F3d 673, 688 (4th Cir 2010) (emphasis

added). Nonetheless, the Oregon Supreme Court in Blocker, 291 Or at 261,

applied First Amendment overbreadth in the context of Article I, section 27,

without explaining why the doctrine should apply outside of free expression or

assembly cases, and Blocker was cited as authority in Hirsch/Friend, 338 Or

at 626-29—again without explanation or analysis.”

Christian, 249 Or App at 4 n 1.

38 State v. Christian

As the Supreme Court earlier stated in Broadrick v.

Oklahoma, 413 US 601, 611, 93 S Ct 2908, 37 L Ed 2d 830

(1973):

“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, 538 US 343, 365, 123 S Ct 1536,

155 L Ed 2d 535 (2003); Dombrowski v. Pfister, 380 US 479,

486-87, 85 S Ct 1116, 14 L Ed 2d 22 (1965).

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

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, 433 US 350, 380, 97 S Ct 2691, 53 L Ed 2d 810 (1977)

(justification for allowing overbreadth challenge “applies

weakly, if at all, in the ordinary commercial context”), and

has not allowed such challenges to laws outside the First

Amendment area, see, e.g., Schall v. Martin, 467 US 253,

268 n 18, 104 S Ct 2403, 81 L Ed 2d 207 (1984) (noting that

“outside the limited First Amendment context, a criminal

statute may not be attacked as overbroad”).

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

Cite as 354 Or 22 (2013) 39

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

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, 334 Or 412, 421, 51 P3d 599 (2002)

(stating that effect); Stevens v. City of Cannon Beach, 317 Or

131, 147, 854 P2d 449 (1993) (same).

40 State v. Christian

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, 987 P2d 501 (1999) (“For a statute to be facially

unconstitutional, it must be unconstitutional in all circum-

stances, i.e., there can be no reasonably likely circumstances

in which application of the statute would pass constitutional

muster.”). We begin by observing that the ordinance

expressly allows a person to knowingly possess or carry a

loaded firearm in a public place if the “person [is] licensed to

carry a concealed handgun.” PCC 14A.60.010(C)(3). Thus,

the ordinance is not a total ban on possessing or carrying

a firearm for self-defense in public like those bans that this

court held violated Article I, section 27, in previous cases.

See Blocker, 291 Or at 259 (prohibition of “mere possession”

of billy club in public without specific regulation of use or

manner of possession a violation of Article I, section 27);

Delgado, 298 Or at 403-04 (same holding with respect to

Cite as 354 Or 22 (2013) 41

mere possession of a switchblade knife in public: “The prob-

lem here is that ORS 166.510(1) absolutely proscribes the

mere possession or carrying of such arms. This the consti-

tution does not permit.”).

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, 554 US 570 (recognizing

an individual right to keep and bear arms for the purpose of

self-defense and invalidating legislation banning handgun

possession in the home), and McDonald v. City of Chicago, ___

US ___, 130 S Ct 3020, 177 L Ed 2d 894 (2010) (holding that

the individual rights recognized in Heller are applicable to

states by virtue of the Due Process Clause of the Fourteenth

Amendment to the United States Constitution).

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, 554 US at 575. The Court characterized the issue for

42 State v. Christian

determination as “whether a District of Columbia prohibition

on the possession of usable handguns in the home violates

the Second Amendment to the Constitution.” Id. at 573.

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

Cite as 354 Or 22 (2013) 43

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.”

Id. 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

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

44 State v. Christian

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.”

Id. 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,

651 F3d 684, 707 (7th Cir 2011). In Ezell, for example, the

court issued a preliminary injunction preventing enforce-

ment by the city of ordinances that mandated firing range

training as a prerequisite to lawful gun ownership and

that prohibited firing ranges within the city. The court did

so because the city did not demonstrate why more modest

burdens on the Second Amendment, rather than an absolute

11

In Heller, the Supreme Court stated that “the central component” or “core”

of the protection guaranteed by the Second Amendment is the right of law-abiding,

responsible citizens to use arms in defense of hearth and home. 554 US at 599,

630 (emphasis in original). Thus, Heller focused on the individual right to self-

defense within the home. Although Heller did not define the scope of the right to

self-defense outside the home, we read the opinion as recognizing a right to self-

defense outside the home to a degree yet to be determined by the Court. We do not,

however, read Heller as interpreting the Second Amendment to confer an unlimited

right to carry loaded firearms in all public places, as argued by defendant.

Cite as 354 Or 22 (2013) 45

restriction, would not advance the city’s objectives. The court

viewed the ordinances as “a severe burden on the core Second

Amendment right of armed self-defense *  * requir[ing] an

*

extremely strong public interest justification and a close fit

between the government’s means and its end.” Id. at 708;

see also Marzzarella, 614 F3d at 96 (recognizing that strict

scrutiny may apply to some Second Amendment challenges

but does not “apply automatically” in all such challenges).

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,

616 F3d 685, 692 (7th Cir), cert den, ___ US ___, 131 S Ct

805 (2010); see also Marzzarella, 614 F3d at 96-97 (applying

intermediate scrutiny because law should merit a less

stringent standard than applied to more intrusive statutes

in Heller); Chester, 628 F3d at 682-83 (intermediate level

of scrutiny applied such that government was required to

demonstrate a reasonable fit between the regulation and its

substantial government objective).

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

12

See Marzzarella, 614 F3d at 96-97 (applying intermediate scrutiny to uphold

conviction for possession of a handgun with an obliterated serial number); United

States v. Yancey, 621 F3d 681, 687 (7th Cir 2010) (same, with respect to prohibiting

illegal drug users from firearm possession); Chester, 628 F3d at 682-83 (applying

intermediate level of scrutiny to uphold conviction for possessing a firearm after

being convicted of a misdemeanor crime of domestic violence); United States v.

Reese, 627 F3d 792, 800-04 (10th Cir 2010), cert den, ___ US ___, 131 S Ct 2476

(2011) (statute prohibiting the possession of all types of firearms while subject to a

domestic protection order held valid under immediate scrutiny standard); United

States v. Booker, 644 F3d 12, 25 (1st Cir 2011), cert den, ___ US ___, 132 S Ct 1538

(2012) (Lautenberg Amendment prohibiting gun possession by individuals with

domestic violence conviction upheld because it substantially promoted important

governmental interest in preventing domestic gun violence).

46 State v. Christian

possess or carry loaded firearm in public places if person

licensed to carry a concealed handgun). The ordinance, as

tailored, also makes additional exceptions to the prohibition

of possession or carrying loaded firearms in public places,

some of which lessen the burden of the ordinance on Second

Amendment rights. See Christian, 354 Or at 26-27 n 5 for

14 exceptions set forth in PCC 14A.60.010(C). Accordingly,

we apply the standard of intermediate scrutiny to review

the ordinance.

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, 628 F3d at 682-83. Thus, the ordinance does not

violate the Second Amendment to the United States Consti-

tution.

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.