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.