New Oregon decision on right to arms

State v. Hirsch, No. SC S49370 (Or. 06/23/2005)

[1] IN THE SUPREME COURT OF THE STATE OF OREGON

[2] Nos. SC S49370, S49371 (Consolidated for Argument and Opinion)

[4] June 23, 2005

[5] STATE OF OREGON, RESPONDENT ON REVIEW,
v.
MARK LEE HIRSCH, PETITIONER ON REVIEW.

STATE OF OREGON, RESPONDENT ON REVIEW,
v.
LAWRENCE AARON FRIEND, PETITIONER ON REVIEW.

[6] On review from the Court of Appeals.*fn1 Nos. CC 99CR2684FE,
99CR1105FE; CA A109091, A108859.

[7] Susan F. Drake, Deputy Public Defender, Salem, argued the
cause for petitioners on review. With her on the briefs were Walter
J. Ledesma, Deputy Public Defender, and David E. Groom, Public
Defender.

[8] Rolf C. Moan, Assistant Attorney General, Salem, argued the
cause for respondent on review. With him on the briefs were Hardy
Myers, Attorney General, and Mary H. Williams, Solicitor General.

[9] The opinion of the court was delivered by: Durham, J.

[10] Argued and submitted May 6, 2003.

[11] Before Carson, Chief Justice, and Gillette, Durham, Riggs,
De Muniz, and Balmer, Justices.*fn2

[12] The decisions of the Court of Appeals and the judgments of
the circuit court are affirmed.

[13] In these two criminal cases, consolidated for purposes of
review, the trial court convicted each defendant of the crime of
felon in possession of a firearm, ORS 166.270(1).*fn3 Defendants
contend that ORS 166.270(1) is facially unconstitutional because that
statute infringes on the right to bear arms guaranteed under Article
I, section 27, of the Oregon Constitution.*fn4 The Court of Appeals
disagreed with that contention and, in each case, affirmed the trial
court's decisions to overrule defendants' demurrers. State v. Friend,
178 Or App 157, 35 P3d 1105 (2001); State v. Hirsch, 177 Or App 441,
34 P3d 1209 (2001). We allowed review and now conclude, as did the
Court of Appeals, that ORS 166.270(1) is not unconstitutionally
overbroad on its face. Accordingly, we affirm the decisions of the
Court of Appeals and the judgments of the trial court.

[14] I. FACTS AND PROCEDURAL BACKGROUND

[15] The facts of each case are undisputed. In November 1999,
while on parole for a prior felony conviction, defendant Hirsch
brought a .308 caliber Winchester bolt-action rifle into a gun shop
to have it bore-sighted. The police arrested him, and the state
charged him with the crime of being a felon in possession of a
firearm, ORS 166.270(1). Defendant demurred to the indictment on the
ground that ORS 166.270(1) violated Article I, section 27. The trial
court overruled the demurrer and, after a bench trial, found
defendant guilty of the charged offense. Defendant appealed, and the
Court of Appeals affirmed. Hirsch, 177 Or App at 449.

[16] In May 1999, Deputy Sheriff Summers stopped defendant Friend
and arrested him for driving under the influence of intoxicants.
Because the police intended to impound defendant's vehicle, Deputy
Baimbridge conducted an inventory search. Baimbridge found a .223
caliber bolt-action rifle and several rounds of live ammunition in
the vehicle. Defendant admitted to Summers that he owned the rifle
and used it for hunting. Defendant was charged with, among other
things, the crime of being a felon in possession of a firearm.
Defendant demurred to that charge on the ground that ORS 166.270(1)
violated Article I, section 27. The trial court overruled that
demurrer and, after a bench trial, found defendant guilty of all
charges. Defendant appealed his felon in possession of a firearm
conviction, and the Court of Appeals affirmed, citing its decision in
Hirsch. Friend, 178 Or App at 157.

[17] In Hirsch, the Court of Appeals examined the history of the
right to bear arms and the restrictions on gun ownership in
precolonial England and the United States up to the adoption of
Article I, section 27, of the Oregon Constitution. The court
determined from that history that the drafters of the Oregon
Constitution would not have understood the right to bear arms to
guarantee an absolute right to the possession of arms. 177 Or App at
445-48. The court also determined that the framers would have
"regarded felons as noncitizens, not entitled to the constitutional
guarantee of political rights such as the franchise and the right to
bear arms." Id. at 449. Thus, the court concluded that Article I,
section 27, "does not prohibit the legislature from barring felons
from possessing firearms." Id.

[18] We allowed both defendants' petitions for review to
determine whether ORS 166.270(1) unconstitutionally infringes on the
right to bear arms set out in Article I, section 27, of the Oregon
Constitution.

[19] II. NATURE OF CONSTITUTIONAL CHALLENGE AT ISSUE

[20] A. Facial Overbreadth Challenge

[21] At the outset, we clarify the nature of the parties'
disputes under the Oregon Constitution. Defendants contend that ORS
166.270(1) is unconstitutionally "overbroad" on its face.
Specifically, defendants argue that, although the legislature might
have authority under Article I, section 27, to prohibit the
possession of firearms as to certain dangerous felons, the
legislature is without authority to prohibit possession categorically
as to all felons. The state responds that, because defendants raised
only facial challenges to ORS 166.270(1), they must establish that
that statute is unconstitutional in all its applications. In the
state's view, any such effort in that regard fails, in light of
defendants' apparent concession that the legislature permissibly may
limit arms possession as to certain dangerous felons. It follows, the
state argues, that defendants fall short of satisfying a prerequisite
to their facial challenges (that is, that the statute is
unconstitutional in all its applications) and, therefore, that this
court should refrain from reaching the merits of defendants'
arguments respecting Article I, section 27.

[22] The state is correct that, when bringing certain facial
constitutional challenges to a statute, the challenger ordinarily
must establish that the statute is unconstitutional in all its
applications. See Jensen v. Whitlow, 334 Or 412, 421, 51 P3d 599
(2002); State v. Sutherland, 329 Or 359, 365, 987 P2d 501 (1999)
(both stating principle). 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. See,
e.g., State ex rel Kane v. Goldschmidt, 308 Or 573, 590, 783 P2d 988
(1989) (although state-approved financing agreements did not
contravene constitutional debt limitations on their face, future,
unpredictable circumstances could render agreements in violation of
those limitations); Hunter v. State of Oregon, 306 Or 529, 533-34,
761 P2d 502 (1988) (although unavailability of post-conviction relief
to persons convicted of municipal ordinance violations did not in
itself contravene equal privilege and immunities protections, future
unequal application of ordinances to certain classes could implicate
those protections).*fn5

[23] However, defendants here do not assert that ORS 166.270(1)
is unconstitutional on its face because it violates Article I,
section 27, in all its applications. Rather, they particularly argue
that, on its face, that statute is unconstitutionally overbroad. The
term "overbreadth" connotes a particular type of facial
constitutional challenge in which the challenger contends that,
although a statute constitutionally could apply in some
circumstances, it impermissibly, and necessarily, impinges on a
constitutional guarantee in other circumstances by prohibiting
conduct that is constitutionally protected. State v. Robertson, 293
Or 402, 410, 649 P2d 569 (1982); State v. Blocker, 291 Or 255, 261,
630 P2d 824 (1981). Unlike with other facial challenges, a challenger
raising an overbreadth challenge need not demonstrate that the
statute at issue is unconstitutional 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.
See Blocker, 291 Or at 261 ("[T]o the extent that an overbroad law
forbids what may not constitutionally be forbidden, it is invalid as
such without regard to the facts in the individual case.").

[24] In short, a challenger appropriately raises a claim of
overbreadth whenever a legislative enactment, in certain
circumstances, purportedly contravenes a constitutional provision
that delineates protected conduct. To illustrate, this court on many
occasions has addressed overbreadth challenges involving Article I,
section 8, of the Oregon Constitution, which delineates
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). In all the foregoing cases, the court
concluded that the statutes at issue impinged on the rights
guaranteed under Article I, sections 8 and 26, in certain
circumstances, even though they did not necessarily do so in all
circumstances. See Ausmus, 336 Or at 507; Purcell, 306 Or at 555-56;
Ray, 302 Or at 600-01 (all so concluding). Further, consistently with
the nature of overbreadth challenges, the court did not examine the
particular facts of the cases before it. Rather, the court concluded
in each case that the fact that the statute at issue, on its face,
impinged on constitutionally protected conduct in certain
circumstances compelled invalidation of the statute.

[25] Like Article I, section 8, and Article I, section 26,
Article I, section 27, delineates constitutionally protected conduct,
by guaranteeing the right of the people to bear arms for the defense
of themselves and the state. Consequently, a claim of overbreadth is
appropriate when a challenger contends that, in certain
circumstances, a statute impinges on that right. Indeed, this court
recognized as much in Blocker, 291 Or at 261-62 (discussed further
below), when it concluded that a statute that prohibited possession
of certain types of weapons "reached beyond permissible limits to
impinge on a constitutionally protected right." Id. at 261. Likewise,
defendants here appropriately ground their challenges in the
overbreadth doctrine, because they argue that ORS 166.270(1)
unconstitutionally impinges on the right to bear arms in certain
circumstances, even though that statute arguably could apply in a
constitutional manner in other circumstances (that is, as to certain
dangerous felons).

[26] We clarify one further aspect of an overbreadth challenge
that bears on our analysis set out below. As this court has noted
before, courts may be able in some circumstances to resolve
overbreadth challenges through statutory interpretation. That is, the
court ultimately may determine that the legislature did not intend
the statute at issue to operate with the breadth that the challenger
attributes to it. See Robertson, 293 Or at 412 (explaining that, in
some circumstances, court may save overbroad law through narrowing
construction that is fully consistent with legislature's intent); see
also State v. Rangel, 328 Or 294, 304-06, 997 P2d 379 (1999)
(applying principle to criminal stalking statute in context of facial
overbreadth challenge). However, for purposes of the issue before us
here, the text of ORS 166.270(1) offers no opportunity for a
narrowing judicial construction: it prohibits all persons convicted
of any felony under state or federal law from possessing firearms in
all circumstances.*fn6

[27] B. Burden of Persuasion

[28] One further preliminary matter requires mention here. The
state asserts that, in bringing their facial challenges to ORS
166.270(1), defendants bear the burden of proving that that statute
prohibits conduct that Article I, section 27, protects. We disagree.
As this court has explained, "an ambiguity in the constitution or in
a statute does not, by itself, create an issue of fact, let alone one
that must be resolved by the presentation of evidence." Ecumenical
Ministries v. Oregon State Lottery Commission, 318 Or 551, 558, 871
P2d 106 (1994). Rather, the court's "'sole duty * * * is to resolve
the dispute in terms of the applicability of * * * the constitutional
provision[]'" that defendants invoke, that is, Article I, section 27.
Id. at 559 (quoting Monaghan v. School District No. 1, 211 Or 360,
363, 315 P2d 797 (1957) (first ellipsis in Ecumenical Ministries)).
We proceed to that task now.

[29] III. SCOPE OF THE RIGHT TO BEAR ARMS UNDER ARTICLE I, SECTION 27

[30] A. Preliminary Discussion

[31] ORS 166.270(1) operates to prohibit "[a]ny person who has
been convicted of a felony" under state or federal law from
possessing "any firearm." Defendants assert that that prohibition
renders ORS 166.270(1) unconstitutionally overbroad on its face
because Article I, section 27, guarantees the right of any person to
possess a firearm without regard to whether that person has been
convicted of a felony.

[32] Our task, then, is to determine whether Article I, section
27, protects the possession of a firearm by a person who has been
convicted of a felony. To do so, we must discern the intent of the
drafters of Article I, section 27, and the people who adopted it. The
goal of that inquiry is "to understand the wording in the light of
the way that wording would have been understood and used by those who
created the provision," Vannatta v. Keisling, 324 Or 514, 530, 931
P2d 770 (1997), and to "apply faithfully the principles embodied in
the Oregon Constitution to modern circumstances as those
circumstances arise," State v. Rogers, 330 Or 282, 297, 4 P3d 1261
(2000). Our analysis consists of an examination of the text of the
constitutional provision, the case law surrounding it, and the
historical circumstances that led to its creation. Priest v. Pearce,
314 Or 411, 415-16, 840 P2d 65 (1992).

[33] Before proceeding, we note that we are not unmindful of the
controversy surrounding the right to bear arms and the seemingly
practical wisdom of prohibiting convicted felons from possessing
firearms. However, as this court previously has explained, "we are
not free to interpret the constitution in any way that might seem to
us to be sound public policy." Stranahan v. Fred Meyer, Inc., 331 Or
38, 66 n 19, 11 P3d 228 (2000). Rather, our task "is to respect the
principles given the status of constitutional guarantees and
limitations by the drafters[.]" State v. Kessler, 289 Or 359, 362,
614 P2d 94 (1980).

[34] B. Construction of Article I, Section 27

[35] 1. Text

[36] Article I, section 27, has provided since statehood 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[.]" In the context of these cases,
the specific wording of Article I, section 27, raises two questions
of construction: (1) whether the legislature constitutionally may
exclude certain groups of persons from the constitutional guarantee;
and (2) whether the guarantee extends to all, or to only some,
purposes of arms possession.

[37] We answer the latter question quickly. Article I, section
27, clearly guarantees the right to bear arms for purposes of defense
-- specifically, "for the defence of [the people] themselves, and the
State." See Kessler, 289 Or at 371 (clarifying that the "defence of
themselves" wording includes right "to possess certain arms for
defense of person and property" (emphasis added)). Although the
parties do not focus their arguments on that part of the
constitutional provision, the "defence" wording nonetheless is
significant, because it serves to limit the scope of the
constitutionally protected conduct at issue in these cases.
Specifically, Article I, section 27, precludes the legislature from
infringing on the people's right to bear arms for purposes of
defense, but not for purposes other than defense. It follows that
Article I, section 27, does not preclude the legislature from
prohibiting persons convicted of felonies -- or any other persons --
from owning or possessing firearms for other than defensive purposes.

[38] We turn, then, to the central textual issue -- that is,
whether the phrase "[t]he people" set out in Article I, section 27,
excludes felons. Defendants argue simply that the drafters' use of
the broad phrase "[t]he people" demonstrates that Article I, section
27, guarantees the right to bear arms to all people, without
exception. The state advances two arguments in response. First, the
state argues that, by using the collective wording "[t]he people,"
instead of the more individual word "person," the drafters intended
the protection set out in Article I, section 27, to provide a
communal right of defense through the bearing of arms, but not an
individual right of defense. Alternatively, the state contends that,
even if Article I, section 27, guarantees an individual right
respecting the bearing of arms, the drafters of that provision
nevertheless did not intend to deprive the legislature of the
authority to regulate that right, including the authority to restrict
certain groups of persons from exercising the right.

[39] As to the state's "communal defense" argument, this court
previously has resolved that question contrary to the state's
position here. In Kessler, 289 Or at 365-68, 371, as noted above and
discussed in greater detail below, the court reviewed the history of
Article I, section 27, and concluded that, in addition to providing
for the defense of the community as a whole, that provision also
guaranteed individuals the right to defend themselves using
constitutionally protected arms. See id. at 371 (Article I, section
27, includes right to possess certain arms for personal defensive
purposes). As a contextual matter, we note that another provision in
the Oregon Bill of Rights -- Article I, section 9 -- similarly
protects individual rights through use of the words "the people." See
Or Const, Art I, ;st 9 ("[n]o law shall violate the right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable search, or seizure" (emphasis added)); State v.
Campbell, 306 Or 157, 166, 759 P2d 1040 (1988) ("the people" wording
in Article I, section 9, protects individual privacy rights). In sum,
we adhere to the reading of Article I, section 27, set out in Kessler
and therefore reject the state's argument that the drafters' use of
the words "[t]he people" limited the extent of the arms guarantee to
defense of the community as a whole.*fn7

[40] We turn to the state's argument that, notwithstanding the
drafters' use of the broad phrase "[t]he people" -- which, on its
face, appears to extend to all people -- the drafters nonetheless did
not intend to deprive the legislature of the authority to regulate
the bearing of arms, specifically the authority to exclude certain
groups of persons (such as felons) from that constitutional
guarantee. The text of Article I, section 27, itself is silent as to
any intent respecting such authority. However, other constitutional
provisions are helpful to our textual analysis, as discussed below.
See generally State v. Cavan, 337 Or 433, 441, 98 P3d 381 (2004)
(when construing text of original constitutional provision, court
must consider relevant context of that provision).

[41] We begin with Article II, section 3 (1859), which, at the
time of statehood, provided:

[42] "No idiot, or insane person, shall be entitled to the
privileges of an elector, and the privilege of an elector shall be
forfeited by a conviction of any crime which is punishable by
imprisonment in the penitentiary."

[43] (Emphasis added.)*fn8 By specifically removing persons
convicted of crimes punished by imprisonment in the penitentiary,
Article II, section 3 (1859), reflected an express intent on the
drafters' part to exclude that group of persons from the exercise of
a constitutional right -- specifically, the right to vote "[i]n all
elections, not otherwise provided for, by [the Oregon]
Constitution[.]" Or Const, Art II, ;st 2 (1859). By contrast, Article
I, section 27, contains no such expression of intent to exclude those
convicted of a crime punishable by imprisonment in the penitentiary
-- the very group of persons at issue in these cases. See generally
General Laws of Oregon, Crim Proc Code, ch I, ;st 3, p 441 (Deady
1845-1864) (crimes carrying penalty of imprisonment in penitentiary
all deemed to be felonies). Although the state argues that the
wording of Article II, section 3 (1859), supports its contention that
the drafters generally did not view felons as equal to other citizens
respecting certain constitutional protections, the wording of that
provision actually cuts against the state's argument here: The
drafters clearly knew how to exclude persons convicted of certain
felonies from the exercise of certain constitutional rights and yet
chose not to exclude those persons expressly from the right to bear
arms. See generally Jory v. Martin, 153 Or 278, 288, 56 P2d 1193
(1936) (absence of wording that limited legislative action in
provision at issue, in light of presence of limiting wording in other
constitutional provisions, "indicates most strongly that it was not
the intention of [the] framers" to limit legislature's authority
respecting provision at issue).*fn9

[44] Another provision of the original constitution further
supports a more expansive reading of Article I, section 27. Original
Article I, section 31 (1859), provided:

[45] "White foreigners who are, or may hereafter become residents
of this State[,] shall enjoy the same rights in respect to the
possession, enjoyment, and descent of property as native born
citizens. And the Legislative Assembly shall have power to restrain,
and regulate the immigration to this State of persons not qualified
to become Citizens of the United States."

[46] (Emphasis added.)*fn10 As to the immigration of certain
persons to Oregon, then, the drafters specifically chose to grant the
legislature express constitutional authority to "restrain[] and
regulate" that practice. We further note that the drafters did not
derive Article I, section 31 (1859), from any other state
constitutional provision existing at the time. Rather, the drafters
crafted it themselves and specifically added the passage respecting
the legislature's regulatory authority during the course of the
constitutional convention. See Charles Henry Carey, ed., The Oregon
Constitution and Proceedings and Debates of the Constitutional
Convention of 1857 317-18, 321, 469 (1926) (setting out suggested
amendment and approval of amendment respecting legislative authority
to restrain and regulate immigration; noting that no similar or
identical provisions appeared in any other state constitution).

[47] Original Article I, section 31 (1859), is significant to our
analysis here, because, in that provision, the drafters expressly
included the same type of wording that the state asserts in these
cases they incorporated implicitly in Article I, section 27. As with
Article II, section 3 (1859), the drafters' choice of wording in
Article I, section 31 (1859), demonstrates that the drafters knew how
to reserve regulatory authority in the legislature within the context
of the Oregon Bill of Rights but made a different choice when they
drafted and approved Article I, section 27.

[48] In sum, the text of Article I, section 27, expressly
delineates a limit respecting the intended purpose of the bearing of
arms (i.e., for defensive purposes); however, it does not delineate
any limit -- or express any intention respecting legislative
authority to delineate such a limit -- as to the groups of persons
falling within the constitutional guarantee. Other provisions of the
Oregon Constitution of 1859, however, demonstrate that the drafters
knew how to exclude felons expressly from the exercise of another
constitutional right and also knew how to reserve express regulatory
authority in the legislature respecting certain activity referred to
within the Bill of Rights.

[49] 2. Case Law

[50] This court has discussed the scope of the guarantee set out
in Article I, section 27, in a number of cases, which we discuss
below.

[51] In two cases, this court appears to have adopted a reading
of Article I, section 27, that is consistent with the state's reading
of that provision in the cases before us now. In State v. Robinson,
217 Or 612, 343 P2d 886 (1959), this court rejected a constitutional
challenge under Article I, section 27, to an earlier version of ORS
166.270, which, at the time, prohibited unnaturalized foreign-born
persons and certain convicted felons from owning or possessing two
general categories of weapons: firearms capable of concealment on the
person, including pistols and revolvers; and machine guns.*fn11
Citing a case from the Indiana Supreme Court,*fn12 the court
summarily concluded that Article I, section 27, "permits reasonable
regulation of the right to bear arms and that accordingly legislation
prohibiting the carrying of concealed weapons is valid. * * * It is
our belief that ORS 166.270, at least so far as ex-convicts are
concerned, is valid legislation."

[52] 217 Or at 619 (emphasis added). In the course of reaching
that decision, the court also cited "the police power of the state"
as an appropriate basis for the statutory restriction:

[53] "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."

[54] Id. at 618 (internal quotation marks omitted).

[55] In State v. Cartwright, 246 Or 120, 418 P2d 822 (1966), cert
den, 386 US 937 (1967), this court again upheld an earlier version of
ORS 166.270,*fn13 in the context of an as-applied constitutional
challenge to that statute. Citing Robinson, the court first stated
that, "notwithstanding Article I, [s]section 27, the state, in the
exercise of the police power, may provide that the ownership or
possession of certain firearms by an exconvict is a public offense;
for the [l]egislature might reasonably conclude that, in the
generality of cases, a person who had demonstrated his disregard for
the laws of society by committing a felony against the person or
property of another would be more likely than others to resort to
force and violence and would be a greater threat to the public safety
when in possession of a concealable firearm than when not."

[56] Cartwright, 246 Or at 135. The court next agreed with the
defendant that "there may be innocent possession of a concealable
firearm by an exconvict," id., and suggested that the legislature
might not have authority to criminalize arms possession in certain
defensive circumstances, citing Hutchinson v. Rosetti, 24 Misc 2d
949, 205 NYS 2d 526 (1960) (holding ordinance that prohibited
discharge of firearms within city limits inapplicable to defendant
who fired into ceiling to scare off would-be assailants). However,
the court ultimately concluded that the version of ORS 166.270 at
issue was not unconstitutional as applied in the defendant's
circumstances because the defendant had not been "faced with a sudden
onslaught and immediate threat of great bodily harm or possible
death." Id. at 136. The court explained that the defendant -- who
purportedly had possessed a pistol in his home to defend against a
forewarned robbery attempt -- instead could have utilized methods of
defense that the statute did not proscribe, such as using a rifle or
a shotgun, or notifying the police. Id.

[57] 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.

[58] It follows that this court's ultimate conclusions in
Robinson and Cartwright, respecting the legislature's authority to
prohibit certain groups of persons (there, certain felons) from
possessing certain types of firearms, erroneously relied on the
notion of "police power" as a source of constitutional authority for
legislative enactments. In that respect, then, those cases were
wrongly analyzed. However, the court's decision in Cartwright as to
the scope of the guarantee set out under Article I, section 27, is
helpful to the extent that it confirms that the guarantee is limited
to purposes of defense. The court in Cartwright further suggested --
although it came far from holding -- that the legislature might not
have authority to criminalize possession of arms in certain defensive
circumstances.*fn14

[59] This court next examined Article I, section 27, in Kessler,
289 Or 359. The defendant in that case challenged his conviction
under former ORS 166.510(1) (1979), repealed by Or Laws 1985, chapter
709, section 4, which, among other things, prohibited any person from
possessing a "slugging weapon." 289 Or at 361.*fn15 The state had
charged and convicted the defendant under that statute after the
police had found two billy clubs in his home.

[60] The court in Kessler first discussed the origins of Article
I, section 27, noting that it shared a common historical background
with other state constitutional arms provisions drafted in the
Revolutionary and post-Revolutionary War era. Id. at 363. In the
court's view, that common background suggested three likely purposes
of the Oregon guarantee: the historical preference for a citizen
militia; "the deterrence of government from oppressing unarmed
segments of the population"; and, as noted earlier, the protection of
the individual's right to bear arms to defend his or her person and
home. Id. at 366-67. The court further determined that the term
"arms" was intended to include "those weapons used by settlers for
both personal and military defense * * * [but] would not have
included cannon or other heavy ordnance not kept by militiamen or
private citizens." Id. at 368.

[61] After generally concluding that Article I, section 27,
"includes a right to possess certain arms for defense of person and
property," id. at 371, the court in Kessler held that that
constitutional provision protected the defendant's possession of the
billy clubs, after concluding that a billy club qualified as the type
of weapon "commonly used for personal defense" at the time that the
people adopted Article I, section 27, id. at 372. The court narrowed
its ultimate conclusion, however, to the particular circumstances of
the case before it, specifically holding that Article I, section 27,
protected defendant's possession of billy clubs in his home.*fn16

[62] In Blocker, 291 Or 255, this court addressed a defendant's
challenge to the same statute at issue in Kessler, involving a
conviction for possession outside the home of a weapon qualifying as
a billy club.*fn17 The court repeated its analysis from Kessler
regarding the premise that Article I, section 27, guaranteed the
right of a person "to bear arms for defense of self" and noted that
the wording of Article I, section 27, contained no limit or
qualification respecting the location of the weapon at issue. Id. at
258-59. The court further noted, citing Kessler, that legislation
that restricts the manner of possession or use of certain weapons
constitutionally may be permissible under Article I, section 27.*fn18
Id. at 259. However, the court clarified that Article I, section 27,
prohibited the legislature from enacting "a total proscription of the
mere possession" of "arms" that Article I, section 27, protects.
Id.
at 260. The court concluded that, as in Kessler, the statute at issue
ran afoul of Article I, section 27, for that reason. Id.

[63] As noted earlier in this opinion, the court in Blocker then
clarified the nature of the defendant's particular constitutional
challenge, in which he had argued that the statute at issue was
"vague and overbroad." Id. (internal quotation marks omitted). After
explaining the difference between the vagueness and overbreadth
doctrines, the court stated:

[64] "[D]efendant's attack on [former] ORS 166.510 [(1979)] as
'overbroad' impliedly asserted that [the statute] reached beyond
permissible limits to impinge on a constitutionally protected right.
This could only be the right to bear arms, although its source was
not identified, as it should have been. * * *

[65] "[W]e conclude 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 possess arms guaranteed by [Article I,
section] 27."

[66] Blocker, 291 Or at 261-62.*fn19

[67] Finally, in State v. Delgado, 298 Or 395, 692 P2d 610
(1984), this court again addressed a constitutional challenge to
former ORS 166.510(1) (1983), repealed by Or Laws 1985, chapter 709,
section 4.*fn20 That case concerned an overbreadth challenge
involving the possession of a switch-blade knife -- which the
defendant purportedly had carried "for protection" -- discovered
during a pat-down search. 298 Or at 397-98. The court noted at the
outset that, in the context of an overbreadth challenge such as the
one at issue before it, the court "[o]rdinarily * * * would have no
reason to go beyond the facts described in the accusatory instrument
to resolve whether error was committed in overruling defendant's
demurrer." Id. at 398 n 2. In light of the factual record before it,
however, the court chose to note that, in the particular
circumstances at hand, "there [was] no evidence to support any
possible charge of an illegal intent to use the weapon or an illegal
use of the weapon." Id.

[68] Applying Kessler and Blocker, the court in Delgado
ultimately concluded that the switch-blade knife in question
qualified as an "arm" that Article I, section 27, protected and that
the statute that prohibited the mere possession or carrying of a
switchblade knife therefore was facially unconstitutional. Id. at
403-04. In so holding, the court again emphasized that "this decision
does not mean individuals have an unfettered right to possess or use
constitutionally protected arms in any way they please. The
legislature may, if it chooses to do so, regulate possession and
use." Id. at 403.

[69] In sum, then, this court has held that Article I, section
27, generally precludes the legislature from prohibiting the mere
possession of constitutionally protected arms by "any person" but
also has noted that the legislature permissibly may regulate the
manner of possession and the use of constitutionally protected arms.
Further, although the court in Cartwright ultimately rejected the
defendant's as-applied challenge, the court intimated in that case,
without so holding, that the right to bear arms may extend to certain
defensive situations, even in the case of possession by a felon.
Finally, the court's holdings in Robinson and Cartwright suggest that
the legislature permissibly may prohibit the mere possession of a
constitutionally protected weapon based on one's status as a felon,
although this court has abandoned the "police power" rationale
underlying those cases.

[70] 3. Historical Circumstances

[71] a. Oregon Constitutional Debate, Indiana Constitutional
Debate, and Other State Constitutional Provisions

[72] As to the adoption of Article I, section 27, itself, the
historical evidence of the drafters' intent -- or of the people's
intent in adopting the Oregon Constitution of 1859 -- is limited.
There are no reported debates on that provision from Oregon's
constitutional convention, and the convention delegates adopted it as
the drafters originally proposed it. Claudia Burton and Andrew Grade,
A Legislative History of the Oregon Constitution of 1857 -- Part I
(Articles I & II), 37 Willamette L Rev 469, 545-46 (2001).

[73] As this court explained in Kessler, 289 Or at 363, the
drafters of the Oregon Constitution derived Article I, section 27,
almost verbatim from Article I, sections 32 and 33, of the Indiana
Constitution of 1851.*fn21 W.C. Palmer, The Sources of the Oregon
Constitution, 5 Or L Rev 200, 202 (1926). The convention debate
respecting the adoption of the Indiana Constitution of 1851 sheds
some light on the question whether or not the wording that the people
of Oregon eventually adopted as Article I, section 27, implicitly
deprived the legislature of the authority to regulate the bearing of
arms. See generally Armatta v. Kitzhaber, 327 Or 250, 265, 959 P2d 49
(1998) (although not as helpful as history or case law revealing the
intent of framers of Oregon Constitution, information demonstrating
intent of framers of Indiana Constitution of 1851 can be instructive
when interpreting Oregon constitutional provision patterned after
Indiana Constitution).

[74] By way of background, Article I, section 20, of the Indiana
Constitution of 1816 contained an arms provision that is virtually
identical to Article I, section 27, of the Oregon Constitution.*fn22
In 1833, the Indiana Supreme Court held that it was permissible under
that 1816 provision for the state legislature to prohibit the wearing
or carrying of concealed weapons. State v. Mitchell, 3 Blackf 229
(Ind 1833).

[75] At the 1850 Indiana constitutional convention, a standing
committee proposed revised wording for that state's arms provision;
as originally introduced, the revised guarantee would have provided
that "[n]o law shall restrict the right of the people to bear arms,
whether in defence of themselves or of the State." Journal of the
Convention of the People of the State of Indiana to Amend the
Constitution 188 (Ind Hist Bureau 1936). After a second reading, a
delegate asked whether the proposed wording was intended to permit or
prohibit the wearing of concealed weapons. 2 Report of the Debates
and Proceedings of the Convention for the Revision of the
Constitution of the State of Indiana 1850 1385 (1850). Another
delegate responded that, if the drafters wished to reserve such power
in the legislature, then they must revise the original wording of
Article I, section 20, of the 1816 constitution;*fn23 "For if it were
declared by Constitutional provision that the people should have the
right to bear arms, no law of the Legislature could take away that
right." Id. Suggested amendments then were offered and rejected, to
the following effect: (1) replacing the words "[n]o law shall
restrict the right of the people" with "no law shall deprive the
people of the right"; (2) inserting the words "in an open and
unconcealed manner" respecting the bearing of arms; and (3) striking
all words after "arms" (that is, all "defence" references).
Id.

[76] When the provision again came up for consideration, a
delegate moved that it be amended to read as follows: "No law shall
be passed restricting the right of the people to carry visible arms."
Journal of the Convention of the People of the State of Indiana to
Amend the Constitution at 580. As the minutes from the debate report
it:

[77] "As the section now stood, [the delegate] thought that it
gave a direct license to every desperado and ruffian in the State to
carry concealed weapons. He did not think, however, that this was the
opinion of the Convention, or that they would restrict the
Legislature from passing any law for carrying concealed weapons."

[78] 2 Report of the Debates and Proceedings of the Convention
for the Revision of the Constitution of the State of Indiana 1850 at
1391

[79] Another delegate then moved to strike the proposed wording
and to insert the wording from Article I, section 20, of the Indiana
Constitution of 1816, that is, that "the people have a right to bear
arms for the defense of themselves and the State[.]" Id. According to
the minutes, that delegate "was desirous whenever the words of the
old Constitution were unobjectionable, and had received judicial
construction, to retain them in the old form. He was opposed to the
reported section from a fear it might possibly be so construed as to
deprive the Legislature of power to prohibit the carrying of
concealed weapons. The practice of carrying concealed weapons was one
of the most dastardly, odious, and murderous practices that was ever
tolerated in the civilized world, and unquestionably there was not a
gentleman on that floor who would not feel shocked at the idea that
no such prohibition could be passed."

[80] Id. The proposed revision was recommitted for the purpose of
replacing the proposed wording with the original 1816 wording. The
convention eventually adopted the provision in that form as Article
I, section 32. Journal of the Convention of the People of the State
of Indiana to Amend the Constitution at 873.

[81] The foregoing debate is helpful to our analysis here,
because it demonstrates that the framers of the Indiana Constitution
of 1851 -- while generally protective of the right to bear arms --
nonetheless did not intend that the right extend so far as to
preclude legislative regulation respecting the carrying of concealed
weapons. Stated differently, in rejecting proposed wording that
expressly prohibited legislative restriction, and in adopting the
wording previously construed in Mitchell, the drafters of the Indiana
Constitution of 1851 demonstrably did not intend to deprive the state
legislature of the authority to regulate a particular aspect of the
right to bear arms that related to public safety. That, in turn,
supports this court's conclusion in Kessler that the guarantee set
out in Article I, section 27, of the Oregon Constitution was subject
to certain regulatory authority on the legislature's part -- at the
least, the authority to prohibit the carrying of concealed weapons
and, possibly, a broader authority to act to prevent threats to
public safety. However, the Indiana history does not conclusively
demonstrate whether that regulatory authority extends to exclude
certain groups of persons from the constitutional guarantee.

[82] As to the basis of the arms provision of the Indiana
Constitutional of 1816, we note that Indiana patterned that provision
on the Ohio Constitution of 1802 and the Kentucky Constitution of
1792.*fn24 Robert Twomley, The Indiana Bill of Rights, 20 Ind LJ 211,
212 (1944). The Ohio and Kentucky provisions, in turn, likely were
patterned on the Pennsylvania Constitution of 1790.*fn25 See Steven
H. Steinglass and Gino J. Scarselli, The Ohio State Constitution: A
Reference Guide 16 (2004); Robert M. Ireland, The Kentucky State
Constitution: A Reference Guide 2 (1999). Pennsylvania, among other
states, patterned its expression of the right to bear arms on the
English Bill of Rights of 1689, which we discuss further below. See
Kessler, 289 Or at 363-65 (discussing origins of right to bear arms).

[83] The Kentucky Constitution of 1792 generated what appears to
be the first appellate decision construing a state constitutional
arms provision. Article XII of that constitution provided in part
that "the right of the citizens to bear arms in defence of themselves
and the State shall not be questioned." In 1822, the Kentucky Court
of Appeals held that that provision prohibited legislation that
criminalized the carrying of concealed weapons, reasoning that such
legislation unconstitutionally restrained the citizenry's right to
bear arms:

[84] "The right [to bear arms] existed at the adoption of the
constitution; it had then no limits short of the moral power of the
citizens to exercise it, and it in fact consisted in nothing else but
in the liberty of the citizens to bear arms. Diminish that liberty,
therefore, and you necessarily restrain the right; and such is the
diminution and restraint, which the act in question most indisputably
imports, by prohibiting the citizens wearing weapons in a manner
which was lawful to wear them when the constitution was adopted. * *
* [I]n principle, there is no difference between a law prohibiting
the wearing of concealed arms, and a law forbidding the wearing such
as are exposed; and if the former be unconstitutional, the latter
must be so likewise."

[85] Bliss v. Commonwealth, 2 Litt 90, 92, 12 Ky 90 (1822). The
people of Kentucky thereafter amended their constitution expressly to
allow prohibitions on the carrying of concealed weapons. See Ky Const
of 1850, Art XIII, ;st 25 ("[T]he rights of the citizens to bear arms
in defence of themselves and the State shall not be questioned; but
the general assembly may pass laws to prevent persons from carrying
concealed arms.").*fn26

[86] The protective view of the state constitutional arms
guarantee expressed in Bliss is rare; to the contrary, 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).*fn27 Most significantly for our purposes
here, as discussed above, 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. Mitchell, 3 Blackf at 229.*fn28

[87] As to the wording of the various state constitutional arms
provisions in effect in 1859 -- all of which theoretically were
available as resources to the drafters of the Oregon Constitution --
we note that none of those provisions expressly prohibited felons or
criminals from possessing arms. Further, none expressly demonstrated
any intent respecting legislative authority to regulate the bearing
of arms, although one -- the Kentucky Constitution of 1850 --
expressly authorized the general assembly to regulate the carrying of
concealed arms.*fn29 Notwithstanding the absence of express
provisions, as discussed above, a number of state courts had
construed their constitutional provisions to authorize such
restrictions. Most significantly for our purposes here, the Indiana
Supreme Court had construed its 1816 arms provision to allow
legislative restrictions on the carrying of concealed weapons,
notwithstanding the absence of any wording to that effect, and the
1850 Indiana constitutional convention delegates recognized the
necessity for such a restriction when they incorporated the 1816
provision into the Indiana Constitution of 1851.

[88] b. Oregon Territorial Laws and Statutes at Statehood

[89] Few statutes enacted by the Oregon territorial legislature
or by the Legislative Assembly soon after statehood in 1859 related
to the regulation of firearms. However, some statutes are helpful to
our analysis as to whether the guarantee set out in Article I,
section 27, carried with it legislative regulatory authority
respecting the possession of arms as to certain groups of persons.
See generally Lakin v. Senco Products, Inc., 329 Or 62, 71-72, 987
P2d 463 (1999) (examining relevant territorial laws to discern
framers' intent respecting particular constitutional provision);
Jory, 153 Or at 294-96 (examining legislative actions at time of
statehood as demonstrative of drafters' intent respecting
legislature's constitutional power to increase salaries of
governmental officials).

[90] At the outset, we note that the right to bear arms was
incorporated as part of the Organic Law of the Provisional
Government, adopted by a vote of the people of Oregon in 1845.
Article I, section 5, of the Organic Law provided, in part, that
"[n]o person shall be deprived of the right of bearing arms in his
own defence[.]" Organic Law of the Provisional Government of Oregon,
Art I, ;st 5, p 59-60 (Deady 1845-1864). No statute existing at
statehood operated to restrict that right as to any groups of
persons, including criminals, minors, vagrants, or the insane. Within
the first years after statehood, the only statute that imposed a
firearm restriction prohibited selling or giving any firearms or
ammunition to any Native Americans without the authority of the
United States. General Laws of Oregon, Crim Code, ch XLIX, ;st 654, p
564-65 (Deady 1845-1864) (effective October 1864).*fn30

[91] In 1869, 10 years after the adoption of the Oregon
Constitution, the legislature enacted a statutory right as to certain
firearms for white male citizens, with no exceptions:

[92] "* * * Every white male citizen of this state above the age
of sixteen years, shall be entitled to have, hold, and keep, for his
own use and defence, the following firearms, to wit: either or any
one of the following named guns, and one revolving pistol: a rifle,
shotgun (double or single barrel), yager, or musket; the same to be
exempt from execution, in all cases, under the laws of Oregon.

[93] "* * * No officer, civil or military, or other person, shall
take from or demand of the owner any firearms mentioned in this
chapter, except where the services of the owner are also required to
keep the peace or defend the state."

[94] General Laws of Oregon, Misc Laws, ch XXII, ;st 1-2, p 613
(Deady & Lane 1843-1872) (effective October 1868). Relatedly,
Oregon's early militia laws did not exempt felons or other
ex-convicts from voluntary militia service. Laws of Oregon 1855-1856,
7th Regular Session (1855-56), An Act to Organize the Militia, p
55-63 (setting out no exceptions to military service) (effective
January 1856); Oregon Laws 1856-1858, 8th Regular Session (1856-57),
An Act to Amend an Act Entitled "An Act to Organize the Militia," p
34 (effective December 1856) (exempting from militia service persons
"subject to bear arms" under original militia law who are
conscientiously opposed to bearing arms); General Laws of Oregon,
Misc Laws, ch XXXVI, ;st 4, p 666 (Deady & Lane 1843-1872) (exempting
persons exempt under federal law, ministers, various state officers,
and clerks in telegraph offices, "and no other persons") (effective
October 1862).

[95] Most statutes that pertained to firearms at statehood or
shortly thereafter were directed at prohibiting dueling and
increasing punishment for crimes that involved the use of dangerous
weapons. See, e.g., General Laws of Oregon, Crim Code, ch XLIII, ;st
524, p 530-31 (Deady 1845-1864) (crime to engage in, or to challenge
someone to, duel with deadly weapon) (effective October 1864); id. at
;st 529, p 531 (assault and robbery while armed with dangerous
weapon) (effective October 1864); id. at ;st 532, p 532 (assault
while armed with dangerous weapon) (effective October 1864); Oregon
Laws 1857-1858, 9th Regular Session (1858), An Act to prevent the
escape of Penitentiary Convicts, p 57-58 (death penalty to be imposed
on territorial convict who, with deadly weapon, strikes, wounds,
stabs, shoots, or shoots at penitentiary personnel or sheriff)
(effective January 1858). The legislature did not act to prohibit the
carrying of concealed weapons until 1885 and did not act to limit the
possession of firearms by felons -- or the possession of certain arms
by any persons -- until 1925. See Laws of Oregon 1885, An Act to
prevent Persons from Carrying Concealed Weapons and to provide for
the Punishment of the same, ;st;st 1-4, p 33 (enacting original
statutory prohibition on carrying of concealed weapons); General Laws
of Oregon 1925, ch 260, ;st;st 2, 5 (enacting predecessor statutes to
former ORS 166.250 (1953) (ultimately held unconstitutional in
Kessler, Blocker, and Delgado) and ORS 166.270).

[96] As to the rights of felons or ex-convicts generally, the
following provisions from Chapter LIII of the Criminal Code of 1864
are informative:

[97] "§ 701. A judgment of imprisonment in the penitentiary for
any term less than for life, suspends all the civil rights of the
person so sentenced, and forfeits all public offices and all private
trusts, authority or power during the term or duration of such
imprisonment.

[98] "§ 702. A person sentenced to imprisonment in the
penitentiary for life, is thereafter deemed civilly dead.

[99] "§ 703. The person of a convict sentenced to imprisonment in
the penitentiary is under the protection of the law, and any injury
to his person not authorized by law, is punishable in the same manner
as if he was not convicted or sentenced.

[100] "* * * * *

[101] "§ 706. No conviction of any person for crime, works any
forfeiture of any property, except in cases where the same is
expressly provided by law; but in all cases of the commission or
attempt to commit a felony, the state has a lien, from the time of
such commission or attempt, upon all the property of the defendant,
for the purpose of satisfying any judgment which may be given against
him for any fine on account thereof, and for the costs and
disbursements in the proceedings against him for such crime."

[102] General Laws of Oregon, Criminal Code, ch LIII, ;st;st
701-703, 706, p 575-76 (Deady 1845-1864) (effective October 1864)
(emphasis added); see also Laws of Oregon 1858-1859, 10th Regular
Session (1858-59), An Act to Amend an Act to create a Lien upon the
Property of Criminals in certain cases, p 43-44 (effective January
1859) (setting out enactment creating lien on property of "all
persons who shall be convicted of any crime"). Thus, as to the rights
of persons convicted of felonies, the first Oregon Criminal Code
provided a distinction between those persons sentenced to the
penitentiary for life (thereafter deemed "civilly dead") and those
sentenced for less than life. As to that latter group -- which
presently would include "felons" as at issue here -- imprisonment
operated to suspend their civil liberties during the course of that
imprisonment but not to terminate those liberties. Notably, that
statutory provision made no exception respecting the bearing of arms.
Further, although the state automatically had a lien on the property
of such persons dating to territorial law, the legislature soon after
statehood exempted firearms from execution under the statutory
guarantee, set out earlier, that granted all males older than 16
years the right to possess certain firearms. See General Laws of
Oregon, Misc Laws, ch XXII, ;st 1-2, p 613 (Deady & Lane 1843-1872)
(effective October 1868).

[103] Additional territorial and early statutes, to some extent,
addressed other topics relating to felons or ex-convicts. For
example, an 1859 law disqualified persons convicted of felonies or
misdemeanors involving moral turpitude from serving as jurors. Laws
of the State of Oregon, First Extra Session, ;st 1 (1859), p 14.
However, the original territorial laws did not prohibit felons or
ex-convicts from voting. See An Act to Establish the Territorial
Government of Oregon, 9 Stat 323, ;st 5 (1848), reprinted in General
Laws of Oregon, p 54 (Deady & Lane 1843-1872).*fn31 Further, although
the territorial and early state legislatures developed a
comprehensive statutory framework governing operation of the state
penitentiary and the monitoring of inmates, nothing in the statutes
at statehood or shortly thereafter created any system for monitoring
ex-convicts after their release from the penitentiary.*fn32 Rather,
the only statutory provisions pertaining to the discharge of inmates
concerned payment upon discharge. See General Laws of Oregon, Misc
Laws, ch XLIV ;st;st 26-27, p 704 (Deady & Lane 1843-1872) ($5 paid
to convicts upon discharge, plus $0.50 for each merit mark, subject
to forfeiture for damages caused while incarcerated) (effective
October 1864).

[104] Finally, we note that, unlike the state of the law in
colonial America (discussed below), early Oregon statutes imposed the
death penalty for only first-degree murder and certain crimes
committed during incarceration in the penitentiary. See Statutes of
Oregon 1855, ch III, ;st 1-3, p 208 (death penalty for first-degree
murder; imprisonment for second-degree murder); Oregon Laws
1857-1858, 9th Regular Session (1858), An Act to prevent the escape
of Penitentiary Convicts, p 57-58 (death penalty to be imposed on
territorial convict who, with deadly weapon, strikes, wounds, stabs,
shoots, or shoots at penitentiary personnel or sheriff) (effective
January 1858); see also generally Don B. Kates, Jr., Handgun
Prohibition and the Original Meaning of the Second Amendment, 82 Mich
L Rev 204, 266 (1983) (felons at colonial times punished "with
automatic forfeiture of all goods, usually accompanied by death"). As
to the types of laws qualifying as felonies, Oregon's first criminal
code identified certain crimes as felonies that did not involve any
injury to person or property. See, e.g., General Laws of Oregon, Crim
Code, ch XLVI, ;st;st 616-18, p 554 (Deady 1845-1864) (felony to
bribe Oregon voter or to receive such bribe) (effective 1864);
General Laws of Oregon, Crim Code, ch V, ;st 632-35, p 429 (Deady &
Lane 1843-1872) (felony to induce or persuade voter from another
state to vote in Oregon or to induce Oregon voter to stay away from
polls) (effective 1870).

[105] In short, like the Oregon Constitution of 1859, the Oregon
statutes in effect both before and shortly after statehood limited
the rights of felons in some circumstances (e.g., in suspending civil
liberties while imprisoned and in disqualifying felons from serving
on juries). However, nothing in those statutes expressly provided for
the disarmament of felons after release from the penitentiary.
Further, the statutes in effect at that time expressly protected arms
possession, both in prohibiting deprivation of the right generally
and in guaranteeing the right of all white males over 16 years old to
possess certain firearms.

[106] c. English History

[107] As discussed above, Article I, section 27, shares a common
historical background with other early state constitutional
provisions that is rooted in the English understanding of the right
to bear arms. This court discussed that history at length in Kessler,
289 Or at 363. Below, we summarize this court's discussion from
Kessler and add further discussion that bears on the issue before us
now.

[108] Before the late seventeenth century, bearing arms in England
was considered to be a duty, rather than a right. Joyce Lee Malcolm,
To Keep and Bear Arms: The Origins of an Anglo-American Right 1
(1994). The Crown relied on citizen-soldiers to defend the country
and to provide local law enforcement. Thus, the bearing of arms was
part of a citizen's civic duty to defend himself and his family,
property, neighbors, and community, as well as to serve in the
militia. Id. at 2-3. Despite that duty, however, the Crown imposed
numerous restrictions on arms ownership, as discussed below.

[109] In the sixteenth century, when firearm use became more
common, the Crown "attempted to place guns under special control,"
Malcolm, To Keep and Bear Arms at 9, by enacting statutes that
"limit[ed] ownership and use of two concealable weapons frequently
employed in crime, the handgun and the crossbow." Id.*fn33 The Crown
also imposed other restrictions on firearm use, such as restricting
shooting near towns and restricting the type of shot that could be
used. Id. at 10. In the seventeenth century, Parliament often
disarmed Catholics during times of religious tension, because it
regarded them as potential subversives. See id. at 11. Similar acts
of disarmament occurred during the reign of Charles II. Id. at 92.

[110] In 1685, James II, a Catholic, acceded to the English
throne. He established a strong standing army, which he quartered in
private homes, Kessler, 289 Or at 363-64, which traditionally had
included criminals and societal outcasts, David B. Kopel, It Isn't
About Duck Hunting: The British Origins of the Right to Arms, 93 Mich
L Rev 1333, 1340-41 (1995) (citing Lois G. Schwoerer, "No Standing
Armies!" The Antiarmy Ideology in Seventeenth-Century England 11, 22
(1974)).*fn34 James II also rigorously sought to disarm his subjects,
with a particular aim toward disarming those who opposed his
religious policies. He did so by strictly enforcing earlier firearms
restrictions, including those set out in a series of game acts, which
effectively disarmed those of little economic means,*fn35 and in the
then-dormant 1328 Statute of Northampton, which forbade the carrying
of arms in fairs and markets, among other things. See Malcolm, To
Keep and Bear Arms at 102-104. In 1686, James II charged a former
sheriff, who had fallen out of political favor, with wrongful use of
a firearm under the dormant 1328 statute. A jury, however, acquitted
the former sheriff, and the King's Bench "specifically recognized a
'general Connivance to Gentlemen to ride armed for their security.'"
Id. at 104-05. In the words of Malcolm, the King's Bench "was not
prepared to approve the use of [the 1328] statute to disarm
law-abiding citizens." Id.

[111] In his continued efforts to disarm the critics of the Crown
-- particularly Protestants -- James II strictly enforced the Militia
Act of 1662, which permitted the disarmament of subjects at the
militia officers' discretion. See id. at 115-16, 118; Kates, 82 Mich
L Rev at 238-39 (quoting Militia Act, which empowered officials "to
search for and seize all arms in the custody or possession of any
person or persons whom [the officials] shall judge dangerous to the
peace of the kingdom"). The Protestants revolted in 1688 in the
"Glorious Revolution," deposed James II, and offered his Protestant
daughter, Mary, and her husband, William of Orange, the Crown, on the
condition that they sign a new Declaration of Rights. Kessler, 289 Or
at 364. William then summoned a "Convention Parliament" to draft the
declaration (discussed further below); William and Mary ultimately
signed the Declaration of Rights of 1689, which was later enacted as
a statute, id., and which is commonly referred to as the Bill of
Rights of 1689.

[112] The Bill of Rights of 1689 listed the abuses of James II and
declared the rights of the people in response to those abuses. See
Malcolm, To Keep and Bear Arms at 117-18. In it, the convention
transformed the "duty" to bear arms into a "right" of the people,
by
including a right-to-bear-arms provision.*fn36 The convention
included that provision because of the outrage toward the Crown's
disarmament of "law-abiding" and "good Subjects" during the
seventeenth century as a political means to enhance the Crown. Id. at
115-18; see also Stephen P. Halbrook, That Every Man Be Armed: The
Evolution of a Constitutional Right 45 (1st ed 1984) (setting out
provision of English Bill of Rights that identified James II's
disarmament abuses as follows: "By causing several good Subjects,
being Protestants, to be disarmed * * *" (quoting English Bill of
Rights, 1 W & M, 2d sess, ch 2 (1689) (emphasis added)). The arms
provision of the Bill of Rights -- which was limited to the
Protestant targets of James II's disarmament policies -- set out the
right as follows:

[113] "that the subjects which are Protestants may have arms for
their defence suitable to their conditions and as allowed by
law."*fn37

[114] English Bill of Rights, 1 W & M, 2d sess, ch 2 (1689),
reprinted in Bernard Schwartz, 1 The Bill of Rights: A Documentary
History 43 (1971).

[115] As noted, disarmament policies in sixteenth and seventeenth