Article 1, Section 27 of the Oregon Constitution states: “The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]”
In State v. Kessler, the Supreme Court of Oregon held that a state statute, which in the court’s words prohibited the “mere possession” of a billy club, among other bladed and blunt weapons, violated an individual’s constitutional right to bear arms under article 1, § 27.1 The court found that article 1, § 27 applies to an individual’s use of arms to protect himself or herself and his or her home as well as the use of arms by members of the militia.2 The court examined, in detail, what the drafters of the Oregon Constitution understood the term “arms” to mean, concluding that “arms” encompasses both weapons commonly used for defending the State as well as those commonly used for an individual’s self-defense.3 Importantly, however, the court emphasized that “the right to ‘bear arms’ does not mean that all individuals have an unrestricted right to carry or use personal weapons in all circumstances,” concluding that “[t]he 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.”4
In State v. Delgado, the Supreme Court of Oregon held that whether a ban on a particular weapon violates article 1, § 27 depends on “whether [the] kind of weapon, as modified by its modern design and function, is of the sort commonly used by individuals for personal defense during either the revolutionary and post-revolutionary era.”5 The court held that a statute prohibiting the possession and carrying of a switchblade knife violates article 1, § 27, although the court stated that individuals do not 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.”6
However, in State v. Smoot, the Court of Appeals of Oregon rejected an article 1, § 27 challenge to a law prohibiting the possession of a concealed switchblade because the statute was reasonably related to public safety and interfered only with the manner of possession, and not possession itself.7
In State v. Hirsch, the Supreme Court of Oregon rejected a challenge under article 1, § 27 to Oregon Revised Statutes § 166.270, which prohibits possession of a firearm by a person convicted of a felony.8 The court held that article 1, § 27 does not deprive the legislature of the authority to restrict the exercise of the state “right to bear arms” by designated groups of persons posing identifiable threats to public safety.9 Since the objective of section 166.270 was to protect the public from a group posing such a threat, it was not unconstitutionally overbroad.10
The court rejected the reasoning of its earlier cases, State v. Robinson11 and State v. Cartwright12, which had upheld laws against article 1, § 27 challenges by relying on 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.” Citing Kessler, the court also rejected the state’s argument that article 1, § 27 created a communal, rather than an individual, right.13 In passing, the court pointed out that article 1, § 27 is not implicated when the bearing of arms is for a non-defensive purpose because the constitutional guarantee extends only to the bearing of arms for purposes of defense.14
Oregon courts have also rejected article 1, § 27 challenges to local ordinances regulating firearms. In Oregon State Shooting Ass’n v. Multnomah County, the Court of Appeals of Oregon held that the “right to bear arms” does not apply to a local ordinance banning assault weapons because, consistent with Delgado and Kessler, those weapons were not the sort of weapon in existence, of common use, and designed for personal defense in the mid-nineteenth century when article 1, § 27 was adopted.15
In State v. Boyce, the Court of Appeals of Oregon rejected an article 1, § 27 challenge to a Portland ordinance banning the possession of a concealable, loaded firearm in public or in a vehicle, stating that the ordinance was a reasonable exercise of the police power.16 The court noted that the ordinance does not regulate the “mere possession” of firearms or ammunition, but regulates the manner of possession.17
Note that subsequent to the Oregon State Shooting Ass’n and Boyce decisions, the Oregon Legislature adopted legislation preempting local jurisdictions from regulating certain firearm-related areas of the law. Please see the Local Authority to Regulate Firearms in Oregon summary for further information.
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- 614 P.2d 94 (Or. 1980).
- Kessler, 614 P.2d at 98.
- Id. at 99. See also State v. Blocker, 630 P.2d 824, 826 (Or. 1981) (holding that, consistent with Kessler, the possession of a billy club outside as well as inside the home is constitutionally protected because, under article 1, § 27, the legislature is prohibited by the constitution from outlawing the possession of a billy club).
- 692 P.2d 610, 612 (Or. 1984).
- Delgado, 692 P.2d at 614. See also State v. Stevens, 833 P.2d 318, 319 (Or. Ct. App. 1992) (holding that article 1, § 27 protects the carrying of a concealed switchblade inside the home).
- 775 P.2d 344, 345 (Or. Ct. App. 1989).
- 114 P.3d 1104 (Or. 2005).
- Hirsch, 114 P.3d at 1135.
- Hirsch, 114 P.3d at 1136.
- 343 P.2d 886 (Or. 1959).
- 418 P.2d 822 (Or. 1966).
- Id. at 1110-1111.
- Id. at 1108. See also Robinson, supra (rejecting an article 1, § 27 challenge to a former state statute prohibiting felons and non-naturalized aliens from possessing firearms capable of concealment upon the person); State v. Owenby, 826 P.2d 51 (Or. Ct. App. 1992) (rejecting an article 1, § 27 challenge to a state law prohibiting the purchase or possession of firearms by a person found by the court by clear and convincing evidence to be mentally ill).
- 858 P.2d 1315, 1318-22 (Or. Ct. App. 1993).
- 658 P.2d 577 (Or. Ct. App. 1983).
- Id. at 578-79.