State v. Smoot

• Decision Date: 14 June 1989
• Citation: 97 Or.App. 255,775 P.2d 344
• Parties: STATE of Oregon, Respondent, v. Dayne Arthur SMOOT, Appellant. B68-696; CA A47755.
• Court: Oregon Court of Appeals

Page 344

775 P.2d 344

97 Or.App. 255

STATE of Oregon, Respondent, v. Dayne Arthur SMOOT, Appellant.

B68-696; CA A47755.

Court of Appeals of Oregon.

Argued and Submitted April 24, 1989.

Decided June 14, 1989.

James W. Kirk, Springfield, argued the cause and filed the brief for appellant.

Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before GRABER, P.J., and RIGGS and EDMONDS, JJ.

EDMONDS, Judge.

Defendant appeals from a conviction for carrying a concealed weapon, a switchblade knife, in his trouser pocket. ORS 166.240. He argues that ORS 166.240(1) is unconstitutional, because it violates Article I, section 27, of the Oregon Constitution. ¹ We affirm.

ORS 166.240(1) provides, in relevant part:

"[A]ny person who carries concealed upon the person any knife having a blade that projects or swings into position by force of a spring or by centrifugal force and commonly known as a switchblade knife * * * commits a Class B misdemeanor."

Defendant argues that the statute is unconstitutional, because historically knives have been carried in trouser pockets and because a switchblade is a modern version of the type of knife that was carried at the time of the adoption of Article I, section 27. Although he concedes that the legislature may regulate the use and possession of weapons, he asserts that ORS 166.240(1) is unconstitutionally overbroad, because it impinges upon a person's constitutional right to possess a switchblade. See State v. Delgado, 298 Or. 395, 692 P.2d 610 (1984).

In State v. Kessler, 289 Or. 359, 614 P.2d 94 (1980), the court stated:

"The constitutional guarantee that persons have the right to 'bear arms' does not mean that all individuals have an unrestricted right to carry or use personal weapons in all circumstances. * * * The courts of many states have upheld statutes which restrict the possession or manner of carrying personal weapons. The reasoning of the courts is generally that a regulation is valid if the aim of public safety does not frustrate the guarantees of the state constitution." 289 Or. at 369, 614 P.2d 94.

See also State v. Delgado, supra, 298 Or. at 403-04, 692 P.2d 610; State v. Blocker, 291 Or. 255, 259-60, 630 P.2d 824 (1981); State v. Robinson, 217 Or. 612, 614-19, 343 P.2d 886 (1959).

Contrary to defendant's argument, ORS 166.240(1) does not impinge on the constitutional right to possess a switchblade knife. A person may possess and carry a switchblade so long as it is not concealed. Rather, ORS 166.240(1) regulates only the manner of possession. See State v. Boyce, 61 Or.App. 662, 658 P.2d 577, rev. den. 295 Or. 122, 666 P.2d 1344 (1983). That does not frustrate the guarantee of Article I, section 27, which is identical to Article I, sections 32 and 33, of the Indiana Constitution. Carey, A History of the Oregon Constitution 469 (1926). In McIntyre v. State, 170 Ind. 163, 83 N.E. 1005 (1908), the Indiana Supreme Court held that the Indiana Constitution permits reasonable regulation of the right to bear arms, and that legislation prohibiting the carrying of concealed weapons is valid. In light of that historical perspective, and because the legislative encroachment on the right to bear arms is reasonably related to public safety and interferes...