State v. Jorgenson

González, J.

¶1 Washington law prohibits firearms possession by someone released on bond after a judge has found probable cause to believe that person has committed a serious offense. RCW 9.41.040(2)(a)(iv). Roy Jorgenson was released on bond after a trial court judge found probable cause to believe he had shot someone. He was arrested with a handgun and an AR-15 rifle. Jorgenson was not at home at the time, nor is there any evidence that he was defending himself. He was convicted of violating RCW 9.41.040(2)(a)(iv).

¶2 Jorgenson claims that RCW 9.41.040(2)(a)(iv) violates his rights to bear arms under the federal and state constitutions. We defer to the legislature’s conclusion that when a trial judge finds probable cause to believe a defendant committed a serious offense, public safety justifies temporarily limiting that person’s right to possess arms. We hold that the statute is constitutional as applied to Jorgenson and affirm his conviction.

I. FACTS AND PROCEDURAL HISTORY

¶3 The State charged Jorgenson with assault in the first degree for shooting another man. On June 6, 2008, a Cowlitz County Superior Court judge found probable cause to believe Jorgenson had committed the crime. See CrR 2.2(a), 3.2.1. Jorgenson posted bond and was released from jail with no specified release conditions.

¶4 At a pretrial hearing on August 5, 2008, the prosecutor requested a specific release condition barring possession of firearms but the judge declined to impose the condition. At another pretrial hearing on October 14, 2008, while Jorgenson was present, the prosecutor advised the court that RCW 9.41.040(2)(a)(iv) forbade Jorgenson from possessing a firearm while his case was pending. The court declined to directly advise Jorgenson of the prohibition, relying on defense counsel’s assurance that he would “take care of it.” Clerk’s Papers at 30.

¶5 On November 25, 2008, police officers responded to a 911 call reporting a gunshot and found Jorgenson standing outside his car. Jorgenson admitted he had a rifle and a handgun in the car, and the officers could see the rifle in plain view. The officers knew of Jorgenson’s pending trial for first degree assault and arrested him for second degree unlawful possession of a firearm. On a later search pursuant to a warrant, officers found a 9 mm Tokarev handgun and an Olympic Arms AR-15 rifle inside Jorgenson’s car.

¶6 Jorgenson was charged with two counts of second degree unlawful possession of a firearm under RCW 9.41-.040(2)(a)(iv).1 The trial court denied Jorgenson’s motion to dismiss on grounds of due process, equal protection, and the state and federal constitutional rights to possess firearms. Jorgenson was convicted on both counts by stipulation of facts.

¶7 Jorgenson appealed his convictions, arguing that RCW 9.41.040 violates the United States Constitution and the Washington Constitution. Chief Justice Worswick of the Court of Appeals certified the case to this court pursuant to RCW 2.06.030.

II. STANDARD OF REVIEW

¶8 Constitutional issues are reviewed de novo. State v. Sieyes, 168 Wn.2d 276, 281, 225 P.3d 995 (2010) (citing State v. Chavez, 163 Wn.2d 262, 267, 180 P.3d 1250 (2008)). This court will presume a legislative enactment constitutional and, if possible, construe an enactment so as to render it constitutional. City of Seattle v. Montana, 129 Wn.2d 583, 589-90, 919 P.2d 1218 (1996).

¶9 It is unclear to us from the briefing whether Jorgenson contends RCW 9.41.040(2)(a)(iv) is facially unconstitutional or only as applied to him, but we treat this as an as-applied challenge.1 2 See Wash. State Republican Party v. Pub. Disclosure Comm’n, 141 Wn.2d 245, 282 n.14, 4 P.3d 808 (2000) (“a facial challenge must be rejected if there are any circumstances where the statute can constitutionally be applied” (citing In re Det. of Turay, 139 Wn.2d 379, 417 n.28, 986 P.2d 790 (1999))). A statute that is found unconstitutional as applied remains good law except in similar circumstances. City of Redmond v. Moore, 151 Wn.2d 664, 669, 91 P.3d 875 (2004).

III. ANALYSIS

¶10 Jorgenson argues that RCW 9.41.040(2)(a)(iv) unconstitutionally infringes on his right to bear arms under article I, section 24 of the Washington Constitution and under the Second Amendment to the United States Constitution. 3 RCW 9.41.040(2)(a)(iv) proscribes the ownership, possession, or control of any firearm by a person who is “free on bond or personal recognizance pending trial, appeal, or sentencing for a serious offense as defined in RCW 9.41.010.” “Serious offenses” are felonies including any crime of violence, indecent liberties, and sexual exploitation. RCW 9.41.010(18).

1. Washington Constitution

¶11 Where feasible, we resolve constitutional questions first under our own state constitution before turning to federal law. O’Day v. King County, 109 Wn.2d 796, 801-02, 749 P.2d 142 (1988) (citing State v. Coe, 101 Wn.2d 364, 373-74, 679 P.2d 353 (1984)). “Besides our responsibility to interpret Washington’s Constitution, we must furnish a rational basis ‘for counsel to predict the future course of state decisional law.’ ” Id. at 802 (quoting State v. Gunwall, 106 Wn.2d 54, 60, 720 P.2d 808 (1986)).

¶12 Article I, section 24 of the Washington Constitution provides, “The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.” Jorgenson argues that article I, section 24 provides broader protection than the Second Amendment. We declined to address this issue in Sieyes, but it is properly before us now. In comparing the scope of the state and federal constitutions, we look to six factors: the text of the state constitution, differences in the text of parallel state and federal constitutional provisions, the history of the state constitution, preexisting state law, structural differences between the state and federal constitutions, and matters of particular state interest or local concern. Gunwall, 106 Wn.2d at 61-62. As we discuss below, these factors show that the state and federal rights to bear arms have different contours and mandate separate interpretation.

Textual language and differences between parallel provisions

¶13 We examine the first two Gunwall factors together because they are closely related. These factors indicate that the firearm rights guaranteed by the Washington Constitution are distinct from those guaranteed by the United States Constitution.

¶14 Like the United States Constitution, the Washington Constitution vests firearm rights in the “individual citizen.” Wash. Const, art. I, § 24; District of Columbia v. Heller, 554 U.S. 570, 577,128 S. Ct. 2783,171 L. Ed. 2d 637 (2008). But unlike the federal “right ... to keep and bear arms,” U.S. Const, amend. II, the state right protects an individual’s right to “bear arms in defense of himself, or the state,” Wash. Const, art. I, § 24. The phrase “in defense of himself, or the state” is no mere prefatory clause, as the Supreme Court found the language “ ‘[a] well regulated Militia, being necessary to the security of a free State’ ” to be in Heller. 554 U.S. at 577 (quoting U.S. Const, amend. II). Rather, the phrase is a necessary and inseparable part of the right in itself. See Montana, 129 Wn.2d at 594 (“The constitutional text indicates the right is secured not because arms are valued per se, but only to ensure self-defense or defense of state.”). Reading the Washington Constitution to give these additional words meaning, we conclude that the plain language of article I, section 24 is distinct and should be interpreted separately from the Second Amendment to the federal constitution.

Constitutional and common law history

¶15 Another factor supporting a different reading of the Washington Constitution is our common law history. Our constitution is patterned primarily on other state constitutions, which themselves draw from prerevolutionary common law. See State v. Earls, 116 Wn.2d 364, 391, 805 P.2d 211 (1991) (Utter, J., dissenting) (“Washington’s Declaration of Rights in article 1 of the constitution had its sources primarily in other states’ constitutions, rather than the federal charter.” (citing Robert J. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491,497 (1984); The Journal of the Washington State Constitutional Convention 1889, at 512 n.40 (Beverly Paulik Rosenow ed., 1962) (article I, section 24 borrows from the Second Amendment to the United States Constitution; article I, section 27 of the Oregon Constitution; and W. Lair Hill’s proposed article I, section 28))).

¶16 In turn, many early state constitutions couch firearm rights in terms of self-defense or defense of the state. See Heller, 554 U.S. at 585 & n.8 (quoting constitutional provisions from nine states guaranteeing the right to “ ‘bear arms in defense of themselves and the state’ ” or “ ‘bear arms in defense of himself and the state’ ” (quoting Mo. Const, art. XIII, § 3; Conn. Const, art. I, § 7). The plain text of these rights is different from the plain text of the federal right to bear arms. Therefore, like the first and second Gunwall factors, the third Gunwall factor points toward a separate interpretation.

Preexisting state law

¶17 Preexisting state law does not demonstrate how the state right compares to its federal counterpart. Gun-wall, 106 Wn.2d at 62. The right to bear arms under the state constitution is not absolute but is instead subject to “ ‘reasonable regulation.’ ” Montana, 129 Wn.2d at 593 (quoting Morris v. Blaker, 118 Wn.2d 133,144, 821 P.2d 482 (1992)); see, e.g., id. at 592-96 (upholding Seattle’s ban on carrying fixed-blade knives); Second Amendment Found, v. City of Renton, 35 Wn. App. 583, 586-87, 668 P.2d 596 (1983) (upholding municipal ban on carrying firearms while on any premises where alcoholic beverages are dispensed by the drink); State v. Tally, 198 Wash. 605, 606-07,89 P.2d 517 (1939) (upholding concealed weapons license requirement and law prohibiting those convicted of a violent crime from possessing a pistol). As we explain below, Second Amendment case law is currently evolving. It is uncertain how the federal right compares to our preexisting “reasonable regulation” analysis. We move on to the fifth Gunwall factor.

Structural differences

¶18 In Gunwall, we found the structural differences between the state and federal constitutions required us to read article I, section 7 of the Washington Constitution more broadly than its federal equivalent. We observed that where the United States Constitution is a grant of enumerated powers, the Washington Constitution is a limitation on the otherwise plenary power of the state. Gunwall, 106 Wn.2d at 66-67. The same reasoning applies here. Because the state has the plenary power to act unless expressly forbidden by the state constitution or federal law, we give a broad reading to the “explicit affirmation of fundamental rights in our state constitution.” Id. at 62.

Particular state interest and concern

¶19 The final Gunwall factor directs us to consider whether the subject matter is local in character or a matter of national policy. Id. Firearm ownership varies radically between localities, as does the incidence of firearm violence. McDonald v. City of Chicago, 561 U.S. 742, 927, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010) (Breyer, J., dissenting). Furthermore, federalism and comity place the state courts in the role of the “primary protectors of the rights of criminal defendants.” Cabana v. Bullock, 474 U.S. 376, 391, 106 S. Ct. 689,88 L. Ed. 2d 704 (1986). Therefore, this factor also instructs us to look to the state right separately from the federal right.

¶20 The Gunwall analysis, aside from the inconclusive fourth factor, suggests we should interpret the state right separately and independently of its federal counterpart. We analyze article I, section 24 below.

¶21 We have long held that the firearm rights guaranteed by the Washington Constitution are subject to reasonable regulation pursuant to the State’s police power. State v. Krantz, 24 Wn.2d 350, 353,164 P.2d 453 (1945); see also Montana, 129 Wn.2d at 593; Morris, 118 Wn.2d at 144; State v. Rupe, 101 Wn.2d 664, 707 n.9, 683 P.2d 571 (1984). Heller and McDonald left this police power largely intact. Heller explicitly recognized “presumptively lawful” firearm regulations, such as those banning felons and the mentally ill from possessing guns. 554 U.S. at 626-27 & n.26. And while Heller rejected the use of a “freestanding ‘interest-balancing’ approach” to determine the scope of Second Amendment rights, id. at 634, we read the Washington Constitution’s provisions independently of the Second Amendment pursuant to Gunwall.

¶22 Under this court’s precedent, a constitutionally reasonable regulation is one that is “reasonably necessary to protect public safety or welfare, and substantially related to legitimate ends sought.” Montana, 129 Wn.2d at 594 (citing State v. Spencer, 75 Wn. App. 118,121, 876 P.2d 939 (1994); Second Amendment Found., 35 Wn. App. at 586-87). We “balancfe] the public benefit from the regulation against the degree to which it frustrates the purpose of the constitutional provision.” Id. The Court of Appeals applied this test to the statute at bar in State v. Spiers, 119 Wn. App. 85, 79 P.3d 30 (2003).

¶23 The Spiers court held that RCW 9.41.040 was unconstitutional to the extent it proscribed mere ownership of firearms by a person charged with a serious crime. Id. at 94. The statute, the Court of Appeals held, effectively forced a defendant to dispose of all his or her weapons before leaving custody in order to avoid prosecution. Id. at 93. Therefore, the statute burdened firearm rights to the point of frustrating the appellant’s article I, section 24 rights almost entirely. Id. at 93-94. Specifically, the Court of Appeals held that criminalizing firearm ownership did not advance public safety over and above the effects of criminalizing possession and control. Id. at 94 (“The prohibition against possession and control of a firearm is sufficient to protect public safety and welfare. The public does not derive much, if any, additional benefit by forbidding a person who is free on bond pending trial for a serious offense from owning firearms beyond that benefit secured by forbidding such persons from possessing or controlling firearms.”). The Court of Appeals held that the ownership ban of RCW 9.41.040(2)(a)(iv) was not reasonably necessary to protect public safety and reversed those convictions not based on evidence of actual possession and control. Id. at 95.

¶24 Following Montana, we look first to public benefit, then to whether the regulation frustrates the purpose of article I, section 24. The State has an interest in preventing crime by persons awaiting trial. Although we do not find relevant legislative history specifically regarding the ban on defendants charged with serious offenses, we can safely presume that this provision pertains to the legislature’s goal of “ ‘reducing the unlawful use of and access to firearms’ ” as a means of addressing “ ‘increasing violence in our society.’ ” Matthew R. Kite, State v. Radan: Upsetting the Balance of Public Safety and the Right To Bear Arms, 37 Gonz. L. Rev. 201, 206 (2002) (quoting violence reduction programs act, Laws of 1994, 1st Spec. Sess., ch. 7, § 101).4 Thus, we turn to the question of whether proscribing possession or control of a firearm by a defendant unduly frustrates the purposes of article I, section 24.

¶25 We conclude that RCW 9.41.040(2)(a)(iv) is substantially related to its purpose of protecting the public from firearm violence. Although, as the Court of Appeals noted in Spiers, it is questionable whether public safety is furthered by prohibiting mere ownership of firearms rather than only their possession by defendants released on personal recognizance or bail, that issue is not before us because Jorgenson does not dispute the trial court’s conclusion that he possessed the guns. Moreover, the legislature limited this prohibition to a defendant charged with a specific serious offense, and only after a neutral judge has found probable cause to believe the defendant committed a serious offense. See CrR 2.2(a), 3.2.1. The aptness of this firearm restriction is particularly apparent in this case, where Jorgenson violated the firearm prohibition while on bail after a judge found probable cause to believe Jorgenson had shot someone. Jorgenson also possessed the firearms while driving, rather than in the home, “where the need for defense of self, family, and property is most acute.” Heller, 554 U.S. at 628. In deference to the legislature’s finding that certain crimes justify limited restriction of firearms, and because the trial court found probable cause to believe Jorgenson had shot someone, we hold that RCW 9.41-.040(2)(a)(iv) is reasonably necessary and does not violate article I, section 24 as applied to Jorgenson.5

2. Second Amendment

¶26 We next consider whether RCW 9.41-.040(2)(a)(iv) violates the Second Amendment to the United States Constitution. The Second Amendment 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.” This protection binds Washington State. McDonald, 561 U.S. at 750; Sieyes, 168 Wn.2d at 291.

¶27 The Second Amendment vests the right to bear arms in the individual. Heller, 554 U.S. at 602. In Heller, the Court struck down under the Second Amendment a District of Columbia law that totally banned handgun possession in the home and required any lawful firearm in the home to be disassembled or secured with a trigger lock. Id. at 628, 635. But the rights guaranteed by the Second Amendment are neither absolute nor unconditional. The Court identified “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” as examples of “presumptively lawful regulatory measures” controlling ownership of firearms. Id. at 626-27 & n.26.

¶28 The level of scrutiny (if any) applicable to firearm restrictions challenged under the Second Amendment is not settled. In light of Heller, we declined to analyze a different subsection of RCW 9.41.040 under any level of scrutiny, instead looking to the original meaning and traditional understanding of the right protected by the Second Amendment, together with the burden imposed by upholding a statutory provision forbidding children from possessing firearms. Sieyes, 168 Wn.2d at 295 (citing Eugene Volokh, Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1449 (2009)). But the Heller Court did not rule out the possibility that traditional levels of scrutiny may be appropriate to evaluate some Second Amendment challenges. Rather, the Court found that rational basis did not sufficiently protect the right to bear arms and that the District of Columbia’s broad handgun prohibition would fail constitutional muster “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” 554 U.S. at 628 & n.27. Furthermore, it is at least questionable whether some of the presumptively constitutional regulations identified by the Court would withstand scrutiny under the historical understanding of the right to bear arms. Compare C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J. L. & Pub. Pol’y 695, 708 (2009) (“Though recognizing the hazard of trying to prove a negative, one can with a good degree of confidence say that bans on convicts possessing firearms were unknown before World War I.”), with Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 266 (1984) (“Felons simply did not fall within the benefits of the common law right to possess arms.”); and compare Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1376 (2009) (“One searches in vain through eighteenth-century records to find any laws specifically excluding the mentally ill from firearms ownership. Such laws seem to have originated in the twentieth century”), with United States v. Emerson, 270 F.3d 203, 226 n. 21 (5th Cir. 2001) (noting that “ ‘lunatics’ ” and “ ‘those of unsound mind’ ” were historically prohibited from firearm possession (quoting Robert Dowlut, The Right to Arms: Does the Constitution or the Predilection of Judges Reign? 36 Okla L. Rev. 65, 96 (1983); Stephen R Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to “Bear Arms,” 49 Law & Contemp. Probs. 151 (1986))). The historical test we embraced in Sieyes may not be appropriate for evaluating every type of firearm regulation, and a level of scrutiny analysis may be proper.

¶29 Federal courts after Heller have considered different levels of scrutiny depending, at least in part, on the type of law challenged and the type of limit imposed on the right to bear arms. United States v. Call, 874 F. Supp. 2d 969, 976 (D. Nev. 2012) (quoting United States v. Reese, 627 F.3d 792, 801 (10th Cir. 2010)). Courts have compared Second Amendment challenges to those brought under the First Amendment, noting that intermediate scrutiny is applied when reviewing time, place, and manner restrictions on speech. United States v. Laurent, 861 F. Supp. 2d 71, 103 (E.D.N.Y. 2011) (collecting cases). By analogy, many courts have adopted intermediate scrutiny when evaluating restrictions on gun possession by particular people or in particular places. Id. In Laurent, for example, the court considered a Second Amendment challenge to a ban on receipt of firearms by a person who is under indictment for a crime punishable by imprisonment for more than one year. Id. at 104; 18 U.S.C. § 922(n).6 The court found that the firearm ban applied to only a narrow class of persons, unlike the prohibition in Heller that extended to the public at large; that the provision did not prohibit possessing firearms but merely shipping or receiving them; and that the ban applied for only the time between indictment and either acquittal or conviction. Laurent, 861 F. Supp. 2d at 104. The Laurent court therefore concluded that intermediate scrutiny was the appropriate standard. Id.', see also Reese, 627 F.3d at 801, 802 (considering under intermediate scrutiny a law prohibiting possession of a firearm by a person subject to a domestic protection order); United States v. Masciandaro, 638 F.3d 458, 471 (4th Cir. 2011) (reviewing under intermediate scrutiny a former federal regulation that prohibited carrying or possessing a loaded weapon in a motor vehicle within national park areas). But see United States v. Engstrum, 609 F. Supp. 2d 1227, 1231-32 (D. Utah 2009) (applying strict scrutiny to a statute banning persons convicted of misdemeanor domestic violence from possessing firearms); Nordyke v. King, 681 F.3d 1041,1044-45 (9th Cir. 2012) (declining to determine what type of heighted scrutiny applies to laws that substantially burden Second Amendment rights); United States v. Skoien, 614 F.3d 638, 641-42 (7th Cir. 2010) (rejecting rational basis as the appropriate standard but otherwise avoiding “the levels of scrutiny’ quagmire”).

¶30 We find intermediate scrutiny is appropriate to evaluate RCW 9.41.040(2)(a)(iv). Although there is no exact federal counterpart to this restriction, we are guided by the court’s analysis of the comparable statute in Laurent.7 Unlike the handgun prohibition in Heller, for example, which applied to everyone in the jurisdiction, Washington’s law bans only persons who have been charged with any of an enumerated list of “serious offenses.” Moreover, unlike the ban on convicted felons possessing firearms, RCW 9.41.040(2)(a)(iv) is limited in duration, affecting a person only while on bond or personal recognizance. Although Washington’s firearm ban is broader than 18 U.S.C. § 922(n) because it prohibits possession of firearms, rather than only shipping, receiving, or transporting them, the ban is also narrower in that it applies to persons charged with only a subset of serious crimes. We find that RCW 9.41.040(2)(a)(iv)’s imposition on a person’s Second Amendment rights is sufficiently limited in the scope of affected persons and its duration to warrant review under intermediate scrutiny.

¶31 A law survives intermediate scrutiny if it is substantially related to an important government purpose. Sieyes, 168 Wn.2d at 295 n.18 (citing United States v. Virginia, 518 U.S. 515, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996)). The State has an important interest in restricting potentially dangerous persons from using firearms. See Skoien, 614 F.3d at 642 (“[N]o one doubts that the goal of... preventing armed mayhem[ ] is an important governmental objective.”). RCW 9.41.040(2)(a)(iv) substantially relates to this interest because it forbids only persons charged with specific serious offenses from possessing firearms, and only while released on bond or personal recognizance. We need not determine whether all the listed serious offenses are sufficiently related to the State’s interest in protecting the public because, as applied to Jorgenson, this relation is certainly met. While released on bond after a judge had found probable cause to believe Jorgenson had shot someone, Jorgenson was found with two guns in his car by police officers investigating the discharge of a firearm. The legislature’s attempt to keep guns from potentially dangerous persons while released on bail is justified as applied here. See Laurent, 861 F. Supp. 2d at 105 (“The fact that Laurent was charged with the instant crime because he apparently committed a crime of violence while under indictment undermines any claim he might have that § 922(n) is not substantially related to preventing him from engaging in further violence.”).

¶32 We are mindful, however, of the significant burden this statute places on persons charged with a serious offense. Unlike the federal statutes prohibiting possession of firearms with obliterated serial numbers and banning loaded weapons in national park areas, RCW 9.41.040(2)(a)(iv) substantially impedes a person from exercising the right to self-defense. And, this statute differs from the ban on firearm possession by felons because it limits the Second Amendment rights of persons before they have been found guilty of a crime. But, as the Seventh Circuit has found, “some categorical disqualifications are permissible: Congress is not limited to case-by-case exclusions of persons who have been shown to be untrustworthy with weapons, nor need these limits be established by evidence presented in court.” Skoien, 614 F.3d at 641. Indeed, courts have upheld categorical bans on firearm possession that do not require an individualized determination of dangerousness. See, e.g., United States v. Huitron-Guizar, 678 F.3d 1164,1170 (10th Cir. 2012) (affirming ban on firearm possession by noncitizens who are unlawfully in the country); United States v. Seay, 620 F.3d 919, 925 (8th Cir. 2010) (upholding federal statute prohibiting illegal drug users from firearm possession); United States v. Yancey, 621 F.3d 681, 687 (7th Cir. 2010) (per curiam) (same);8 see also 18 U.S.C. § 922(g)(6) (firearm ban affecting any person who has been dishonorably discharged from the armed forces); 18 U.S.C. § 922(g)(7) (prohibition on firearm possession by any person who has renounced United States citizenship). We simply hold that as applied here, the temporary restriction on Jorgenson’s right to bear arms after a trial court judge found probable cause to believe he had shot someone does not violate the Second Amendment.

IV. CONCLUSION

¶33 We find that the limited, temporary ban on possession of firearms while released on bail pending proceedings for a serious offense did not violate Jorgenson’s right to bear arms under either the state or federal constitution. We affirm.

Madsen, C.J., and Owens, Fairhurst, and Stephens, JJ., concur.

1 “A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the second degree, if the person does not qualify under subsection (1) of this section for the crime of unlawful possession of a firearm in the first degree and the person owns, has in his or her possession, or has in his or her control any firearm:... If the person is free on bond or personal recognizance pending trial, appeal, or sentencing for a serious offense as defined in RCW 9.41.010.”

2 Jorgenson apparently framed his argument as an as-applied challenge during oral argument. Wash. Supreme Court oral argument, State v. Jorgenson, No. 87448-4 (Oct. 4, 2012), at approx. 14 min., 45 sec., audio recording by TVW, Washington State’s Public Affairs Network, available at http://www.tvw.org.

3 The dissent concludes RCW 9.41.040(2)(a)(iv) is facially invalid, apparently under the due process clause of the Fourteenth Amendment. See dissent at 167. While this is an interesting issue, it is not properly before this court because the parties did not brief it. However, we respectfully disagree with our colleague’s characterization of the relevant case law. Federal courts have not consistently found the Adam Walsh Amendments’ pretrial prohibition on firearm possession unconstitutional, as the dissent suggests. See dissent at 169-70. In some cases the dissent relies on, the courts considered only the Adam Walsh Amendments’ curfew, home detention, or home monitoring requirements. United States v. Karper, 847 F. Supp. 2d 350, 356-57 (N.D.N.Y. 2011); United States v. Smedley, 611 F. Supp. 2d 971,974 (E.D. Mo. 2009) (expressly declining to consider the defendant’s challenge to the firearm restriction); United States v. Merritt, 612 F. Supp. 2d 1074,1075-76 (D. Neb. 2009); see also United States v. Torres, 566 F. Supp. 2d 591, 596-98 (W.D. Tex. 2008) (declaring all the pretrial release restrictions facially invalid, but primarily discussing the curfew). In contrast, several courts have upheld categorical limits on firearm possession. Infra pp. 163-64. Moreover, the case raised by the dissent that considered the firearm prohibition in greatest detail also remarked on the tenuous connection between the charged crime (receiving and possessing child pornography) and the firearm restriction — a disconnect we do not have in the case at bar. United States v. Arzberger, 592 F. Supp. 2d 590,603 (S.D.N.Y. 2008) (“Indeed, the Government may well find it difficult to articulate a nexus between an accusation of receiving child pornography and the need to prohibit possession of a firearm.”). There is much less distance between first degree assault with a firearm and a firearm restriction.

4 But we note that the legislature was not contemplating firearm crimes specifically by persons released on bond or personal recognizance. RCW 9.41-.040(2)(a)(iv) was not added to the code until 1996. Laws of 1996, ch. 295, § 2.

5 Although not before us here, we note that Washington courts have recognized the defense of necessity for unlawful possession of a firearm. State v. Jeffrey, 77 Wn. App. 222, 225-26, 889 P.2d 956 (1995) (a defendant must show “(1) he was under unlawful and present threat of death or serious injury, (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct, (3) he had no reasonable alternative, and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm”); State v. Stockton, 91 Wn. App. 35, 43-44, 955 P.2d 805 (1998). Thus, when self-defense is most urgent, courts have recognized that use of a firearm may be defensible.

6 18 U.S.C. § 922(n) provides that it is unlawful for “any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

7 We also note that at least two other states ban persons who have been charged with certain crimes and released on bail or personal recognizance from possessing weapons. Haw. Rev. Stat. § 134-7(b); Baldwin’s Ohio Rev. Code Ann. § 2923.13(A)(2)-(3) (West). Neither state has reviewed the validity of such restrictions under the Second Amendment after Heller.

8 We respectfully disagree with the dissent’s characterization of Yancey as upholding a restriction on firearm possession after conviction of a crime. See dissent at 176. Yancey was charged with violating 18 U.S.C. § 922(g)(3), which makes it a felony for a person “ ‘who is an unlawful user of or addicted to any controlled substance’ to possess a gun.” Yancey , 621 F.3d at 682 (quoting 18 U.S.C. § 922(g)(3)). Although the court noted that Yancey had been arrested for marijuana possession in the past, that fact was used merely to corroborate Yancey’s admission that he regularly used marijuana. Id. The federal statute categorically prohibits unlawful drug users from possessing firearms — regardless of whether they have ever been convicted of, or even arrested for, any offense.