State v. Hirsch/Friend, No. CC 99CR2684FE, 99CR1105FE; CA A109091, A108859; SC S49370, S49371.

• Court: Supreme Court of Oregon
• Writing for the Court: DURHAM, J.
• Citation: 114 P.3d 1104,338 Or. 622,338 Ore. 622
• Parties: 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.
• Docket Number: No. CC 99CR2684FE, 99CR1105FE; CA A109091, A108859; SC S49370, S49371.
• Decision Date: 23 June 2005

114 P.3d 1104
338 Or. 622
338 Ore. 622

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

No. (CC 99CR2684FE, 99CR1105FE; CA A109091, A108859; SC S49370, S49371).

Supreme Court of Oregon.

Argued and Submitted May 6, 2003.

Decided June 23, 2005.

Susan F. Drake, Deputy Public Defender, Salem, argued the cause for petitioners on review. With her on the briefs were Walter

114 P.3d 1106

J. Ledesma, Deputy Public Defender, and David E. Groom, Public Defender

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.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, De MUNIZ, and BALMER, Justices.¹

114 P.3d 1105

DURHAM, J

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).² 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.³ 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 P.3d 1105 (2001); State v. Hirsch, 177 Or.App. 441, 34 P.3d 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.

I. FACTS AND PROCEDURAL BACKGROUND

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, 34 P.3d 1209.

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, 35 P.3d 1105.

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, 34 P.3d 1209. The court

114 P.3d 1107

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, 34 P.3d 1209. Thus, the court concluded that Article I, section 27, "does not prohibit the legislature from barring felons from possessing firearms." Id.

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.

II. NATURE OF CONSTITUTIONAL CHALLENGE AT ISSUE

A. Facial Overbreadth Challenge

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.

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 P.3d 599 (2002); State v. Sutherland, 329 Or. 359, 365, 987 P.2d 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 P.2d 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 P.2d 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).⁴

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 P.2d 569 (1982); State v. Blocker, 291 Or. 255, 261, 630 P.2d 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

114 P.3d 1108

protected conduct of any kind. See Blocker, 291 Or. at 261, 630 P.2d 824 ("[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.")

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 P.2d 510 (1988); State v. Ray, 302 Or. 595, 733 P.2d 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 P.3d 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, 85 P.3d 864; Purcell, 306 Or. at 555-56, 761 P.2d 510; Ray, 302 Or. at 600-01, 733 P.2d 28 (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.

Like Article I, section 8, and Article I, section 26, Article I, section 27, delineates...