State v. H. N. ( 2024 )


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  • 482                 January 31, 2024                No. 57
    IN THE COURT OF APPEALS OF THE
    STATE OF OREGON
    In the Matter of H. N.,
    a Person Alleged to have Mental Illness.
    STATE OF OREGON,
    Respondent,
    v.
    H. N.,
    Appellant.
    Multnomah County Circuit Court
    22CC04064; A179247
    Julia A. Philbrook, Judge.
    Argued and submitted December 19, 2023.
    Christopher J. O’Connor argued the cause for appellant.
    Also on the brief was Multnomah Defenders, Inc.
    Rolf C. Moan, Assistant Attorney General, argued
    the cause for respondent. Also on the brief were Ellen F.
    Rosenblum, Attorney General, and Benjamin Gutman,
    Solicitor General.
    Before Aoyagi, Presiding Judge, Joyce, Judge, and
    Jacquot, Judge.
    JOYCE, J.
    Affirmed.
    Cite as 
    330 Or App 482
     (2024)   483
    484                                                            State v. H. N.
    JOYCE, J.
    Appellant appeals from a judgment committing
    appellant to the custody of the Mental Health Division for a
    period not to exceed 180 days and prohibiting her from pur-
    chasing or possessing firearms. On appeal, appellant con-
    tends that the trial court erred in ordering that she be pro-
    hibited from possessing firearms. See ORS 426.130 (1)(a)(D)
    (authorizing court to prohibit a person with a mental illness
    from purchasing or possessing firearms if it concludes that
    there is a reasonable likelihood that the person would con-
    stitute a danger to self or others). In her view, that order vio-
    lated her rights under the Second Amendment to the United
    States Constitution.1 She argues that the United States
    Supreme Court’s recent decision in New York State Rifle &
    Pistol Assn., Inc. v. Bruen, 
    597 US 1
    , 
    142 S Ct 2111
    , 
    213 L Ed 2d 387
     (2022) renders ORS 426.130(1)(a)(D) facially uncon-
    stitutional. Because we conclude that barring an individual
    with a mental illness from possessing firearms is consistent
    with our nation’s history, we affirm.
    The background facts are relatively few, and we
    state them consistently with the trial court’s explicit and
    implicit findings. State v. D. R., 
    239 Or App 576
    , 579, 244
    P3d 916 (2010). Appellant set fire to her apartment, which is
    on the top floor of a multi-floor complex. She told firefighters
    that she started the fire and that she was trying to kill her-
    self. Firefighters were able to contain the fire to appellant’s
    apartment, preventing any spread and potential injury to
    the other residents in the building. Shortly after she set
    fire to her apartment, appellant broke into a church. Police
    found her in the basement, where she told officers that she
    was “summoning Satan and making coffee.” She declined
    officers’ requests to leave with them, instead filling up large
    pitchers of water and then dumping the water on one of the
    officers and throwing the empty pitchers at another officer.
    Officers took her to the hospital, and she was placed on a
    mental commitment hold.
    1
    In her first and second assignments of error, appellant argues that the
    court erred in concluding that she was a person with a mental illness and that
    she was a danger to herself and others. We have reviewed the record and conclude
    that the trial court correctly ruled that appellant had a mental illness and was a
    danger to herself and to others.
    Cite as 
    330 Or App 482
     (2024)                              485
    Doctors subsequently diagnosed appellant with
    psychosis. During her time at the hospital, she declined to
    take medications consistently, and at the time of her com-
    mitment hearing, her symptoms remained active.
    At the conclusion of the hearing, the trial court con-
    cluded that appellant suffered from a mental disorder and
    was a danger to herself and to others. As relevant to the issue
    on appeal, it further ordered that appellant was prohibited
    from purchasing or possessing firearms because there was a
    reasonable likelihood that she would constitute “a danger to
    self or others or to the community at large as a result of” her
    mental state as “demonstrated by past behavior or partici-
    pation in incidents involving unlawful violence or threats of
    unlawful violence, or by reason of a single incident of extreme,
    violent, unlawful conduct.” ORS 426.130(1)(a)(D).
    Appellant objected, arguing that “any law limiting
    firearm possession or ownership” is subject to strict scrutiny
    under the Second Amendment, and “the law that [the court]
    is using to impose a firearms ban” would not survive that
    standard. The court rejected that argument.
    On appeal, appellant reprises her argument that
    the firearms prohibition is unconstitutional, both facially
    and as applied to her. During argument, she conceded that
    she did not preserve the as-applied challenge and she has not
    asked for plain error review. We therefore limit our consid-
    eration to appellant’s argument that ORS 426.130(1)(a)(D)
    is facially unconstitutional.
    As both parties acknowledge, the legal landscape
    against which we answer that question has shifted in
    recent years. As we recently explained in State v. Parras,
    
    326 Or App 246
    , 248, 531 P3d 711, rev pending (2023), a
    case addressing whether Oregon’s prohibition on felons in
    possession of firearms was constitutional as applied to the
    defendant, the Supreme Court’s decision in Bruen altered
    how courts consider constitutional challenges to limitations
    on firearm possession. Yet in Parras, we explained that
    to understand the impact of Bruen, we had to begin with
    an earlier Supreme Court decision, District of Columbia v.
    Heller, 
    554 US 570
    , 
    128 S Ct 2783
    , 
    171 L Ed 2d 637
     (2008).
    486                                                 State v. H. N.
    Parras, 326 Or App at 249. We began there because in
    Heller, the Court discussed the history of limits on people
    possessing firearms, history that—after Bruen—became
    paramount. Much of that historical discussion is applica-
    ble here, albeit in a different context. That is because, as
    we explain below, the Court expressly addressed historical
    limits on possession of firearms by individuals with mental
    disorders in Heller. Accordingly, we begin there.
    In Heller, the Court struck down a law banning pos-
    session of handguns in the home and that required other
    kinds of firearms to be disassembled or bound by a trigger
    lock. 
    554 US at 635
    . The Court observed that the core of
    the Second Amendment protects “the right of law-abiding,
    responsible citizens to use arms in defense of hearth and
    home.” 
    Id.
     Notwithstanding that broad protection, the right
    is “not unlimited.” 
    Id. at 595, 626
    . As particularly relevant
    here, the Court remarked that bans on the possession of
    weapons by mentally ill individuals was “longstanding”:
    “From Blackstone through the 19th-century cases, com-
    mentators and courts routinely explained that the right
    was not a right to keep and carry any weapon whatsoever
    in any manner whatsoever and for whatever purpose. For
    example, the majority of the 19th-century courts to consider
    the question held that prohibitions on carrying concealed
    weapons were lawful under the Second Amendment or
    state analogues. Although we do not undertake an exhaus-
    tive historical analysis today of the full scope of the Second
    Amendment, nothing in our opinion should be taken to cast
    doubt on 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.”
    
    Id. at 626-27
     (internal citations omitted).
    In addition to describing such a limitation as “long-
    standing[,]” the Court also described such limits as being
    “presumptively lawful regulatory measures.” 
    Id.
     at 627
    n 26; see also McDonald v. Chicago, 
    561 US 742
    , 786, 
    130 S Ct 3020
    , 
    177 L Ed 2d 894
     (2010) (“We made it clear in
    Heller that our holding did not cast doubt on such longstand-
    ing regulatory measures as ‘prohibitions on the possession
    Cite as 
    330 Or App 482
     (2024)                               487
    of firearms by felons and the mentally ill,’ ‘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.’ We repeat
    those assurances here.” (Internal citation omitted.)).
    After Heller, courts considered Second Amendment
    challenges to limitations on firearm possession by first deter-
    mining whether the state “establish[ed] that the challenged
    law regulates activity falling outside the scope of the [Second
    Amendment] right as originally understood.” Bruen, 597 US
    at 18 (internal quotation marks omitted). If not, courts then
    addressed a second question, assessing “how close the law
    comes to the core of the Second Amendment right and the
    severity of the law’s burden on that right.” Id. (internal quo-
    tation marks omitted). Courts applied strict scrutiny if the
    “core” Second Amendment right was burdened; otherwise,
    courts applied intermediate scrutiny. Id.; see also Parras,
    326 Or App at 250 (describing analysis).
    In Bruen, the court rejected the first part of that
    two-part formula and instead held that “when the Second
    Amendment’s plain text covers an individual’s conduct, the
    Constitution presumptively protects that conduct. To justify
    [a state’s] regulation, * * * the regulation [must be] consis-
    tent with this Nation’s historical tradition of firearm regu-
    lation. Only if a firearm regulation is consistent with this
    Nation’s historical tradition may a court conclude that the
    individual’s conduct falls outside the Second Amendment’s
    ‘unqualified command.’ ” Bruen, 597 US at 17 (internal cita-
    tion omitted). Under that standard, it is incumbent upon
    “the government [to] demonstrate that the regulation is con-
    sistent with this Nation’s historical tradition of firearm reg-
    ulation.” Id.
    Post-Bruen, then, a restriction like the one at issue
    here is constitutional only if it is consistent with the nation’s
    history of regulating firearms. Many courts, including our
    own, have observed the difficulties of deciphering that his-
    tory, because “[a]n honest search for an ‘American’ tradition
    on gun regulation is especially challenging, given that well
    over half of the American population—including women,
    Blacks, and others—were generally excluded by law from
    488                                                          State v. H. N.
    political participation at the time of the Second Amendment’s
    passage and for decades thereafter.” Parras, 326 Or App
    at 254 (quoting United States v. Smith, No 22-CR-20351,
    
    2023 WL 2215779
     at *4 (ED Mich Feb 24, 2023)). We also
    acknowledge that perceptions around mental disorders and
    its treatment have significantly changed since the time of
    the Second Amendment’s framing.2
    Nevertheless, deciphering history is what courts
    are tasked to do after Bruen. As we explain below, that his-
    tory makes it evident—at least as far as history can—that
    those with mental disorders could be disarmed without run-
    ning afoul of the Second Amendment.
    At the outset, we agree with appellant that the
    Second Amendment’s plain text covers her possession of a
    firearm. See Bruen, 597 US at 24 (if the Second Amendment’s
    plain text covers the defendant’s conduct, the Constitution
    “presumptively” covers that conduct). Thus, we must con-
    sider whether ORS 426.130(1)(a)(D) is consistent with the
    “historical tradition that delimits the outer bounds of the
    right to keep and bear arms.” Bruen, 597 US at 19.
    As the state acknowledges, there appear to have
    been no statutes in existence during the 1700s that dis-
    armed people with mental disorders. Carlton F.W. Larson,
    Four Exceptions in Search of a Theory: District of Columbia
    v. Heller and Judicial Ipse Dixit, 60 Hastings LJ 1371, 1376
    (2009) (observing that one “searches in vain through eigh-
    teenth-century records to find any laws specifically exclud-
    ing the mentally ill from firearms ownership. Such laws seem
    to have originated in the twentieth century.”). In appellant’s
    view, that absence is fatal to the state’s burden under Bruen.
    But Bruen did not hold that a limitation on firearm
    possession is permissible only if similar regulations existed
    in the 1700s. Rather, the Court observed that “the lack of
    a distinctly similar historical regulation addressing that
    2
    To that end, much of the discussion around individuals with mental dis-
    orders has also evolved. The history recounted in this opinion does not always
    reflect those changes and, indeed, uses demeaning terminology to describe peo-
    ple suffering from mental disorders. To the extent we quote that terminology, we
    do so only to capture the historical limitations on those with mental disorders
    from possessing firearms.
    Cite as 
    330 Or App 482
     (2024)                              489
    problem” is “relevant evidence”—not dispositive evidence—
    that the challenged law is unconstitutional. Bruen, 597 US
    at 26. Indeed, the Court went on to observe that there may be
    “modern regulations that were unimaginable at the found-
    ing.” Id. at 28. In those cases, courts must resort to “reason-
    ing by analogy,” which requires “only that the government
    identify a well-established and representative historical
    analogue, not a historical twin. So even if a modern-day reg-
    ulation is not a dead ringer for historical precursors, it still
    may be analogous enough to pass constitutional muster.”
    Bruen, 597 US at 30 (emphases in original); see also Parras,
    326 Or App at 257 (rejecting the defendant’s challenge to the
    felon-in-possession prohibition even though “it may be true
    that prohibitions on the possession of firearms by people
    convicted of felonies did not exist at the time of the framing
    of the Second Amendment”).
    The absence of laws excluding individuals with
    mental disorders from possessing firearms is likely attrib-
    utable to the fact that such laws were viewed as unneces-
    sary at the time of the Second Amendment’s framing. That
    is because it was generally accepted that people suffering
    from mental disorders could be hospitalized and deprived of
    their personal liberty even in the absence of any laws allow-
    ing for that process. Larson, 60 Hastings LJ at 1377 (observ-
    ing that justices of the peace were authorized to “lock up”
    “lunatics” who were considered dangerous); see also Keyes v.
    Lynch, 195 F Supp 3d 702, 718 (MD Pa 2016) (“the strongest
    originalist argument for the exception of the mentally ill
    [from the right to bear arms] rests on the traditional ability
    of justices of the peace to confine individuals with dangerous
    mental impairments” (quoting Larson, 60 Hastings LJ at
    1378)); Gerald N. Grob, The Mad Among Us: A History of the
    Care of America’s Mentally Ill 5-21, 29, 43 (1994) (explaining
    that individuals with mental disorders were often removed
    from the community through involuntary commitment to
    welfare and penal institutions). For that reason, statutes
    like the one here—which authorize trial courts to deprive
    an individual with a mental disorder of their personal lib-
    erty only if a court follows a specific, detailed process that
    includes providing the allegedly mentally ill person with
    counsel and other due process protections—would have been
    490                                             State v. H. N.
    “unimaginable” to the framers of the Second Amendment.
    Bruen, 597 US at 28 (turning to history to “guide our con-
    sideration of modern regulations that were unimaginable at
    the founding”). We thus turn to the question whether any
    historically analogous traditions existed that prohibited
    people with mental disorders from possessing firearms.
    We begin with Heller’s reference to “longstanding”
    limitations on individuals with mental disorders being per-
    mitted to possess firearms. Heller, 
    554 US at 626
    . To be
    sure, as appellant notes, Heller did not involve the question
    whether a limitation on individuals with mental disorders
    possessing firearms was constitutional. As a result, its
    reference to those prohibitions as being “longstanding” (a
    statement echoed in McDonald), has created debate among
    courts as to whether those statements are binding or merely
    dicta. Compare U.S. v. Vongxay, 594 F3d 1111, 1115 (9th Cir
    2010) (treating Heller’s “presumptively lawful” language as
    binding), with U.S. v. Skoien, 614 F3d 638, 640 (7th Cir 2010)
    (treating it as dicta).
    Binding or not, it is notable that the Supreme Court
    included that language, reiterated it in McDonald, and that
    five justices writing separately in Bruen made clear that
    nothing in the decision was intended to alter the observation
    that such prohibitions were “longstanding.” Justice Alito, in
    a concurrence, specifically noted that the opinion should not
    be read to have “disturbed anything that we said in Heller
    or [McDonald] about restrictions that may be imposed on
    the possession or carrying of guns.” Bruen, 597 US at 72
    (Alito, J., concurring). And Justice Kavanaugh, in his con-
    currence, mirrored that understanding as well. See id. at
    81 (Kavanaugh, J., concurring) (reiterating language from
    Heller and McDonald about “longstanding prohibitions on
    the possession of firearms by felons and the mentally ill”).
    In his dissent, which Justices Sotomayor and Kagan joined,
    Justice Breyer also highlighted Heller’s reference to prohi-
    bitions on firearm possession by the mentally ill and stated
    that “[l]ike Justice Kavanaugh, I understand the Court’s
    opinion today to cast no doubt on that aspect of Heller’s hold-
    ing.” Id. at 129.
    Cite as 
    330 Or App 482
     (2024)                                               491
    More to the point, however, is that the statement
    in Heller is consistent with history; in other words, limita-
    tions on people with mental disorders possessing firearms
    are in fact “longstanding.” According to some historical
    accounts, individuals with a mental disorder, along with
    felons and children, were categorially excluded from the
    Second Amendment’s protections.3 State v. Hirsch/Friend,
    
    338 Or 622
    , 669-70, 114 P3d 1104 (2005), overruled on
    other grounds by State v. Christian, 
    354 Or 22
    , 307 P3d 429
    (2013) (the right to arms does not preclude laws “disarm-
    ing the unvirtuous (i.e. criminals) or those who, like chil-
    dren or the mentally unbalanced, are deemed incapable of
    virtue” (citing Glenn Harlan Reynolds, A Critical Guide to
    the Second Amendment, 62 Tenn L Rev 461, 480 (1995)));
    see also Stephen P. Halbrook, What the Framers Intended:
    A Linguistic Analysis of the Right to “Bear Arms”, 49 Law
    & Contemp Probs 151, 161 (1986) (concluding that histori-
    cally, “criminals, children, and those of unsound mind may
    be deprived of firearms” (internal citations and footnotes
    omitted)).
    Those categorial prohibitions, at least in the case
    of those suffering from mental disorders, were not explicitly
    tied to any dangerousness that those individuals may have
    posed to themselves or others. But other historical accounts
    describe a more general firearms prohibition on individuals
    who were considered a danger to themselves or to others.
    See Keyes, 195 F Supp 3 at 719 (“[T]here is clear historical
    evidence that persons prone to violent behavior were outside
    the scope of Second Amendment protection.”); Binderup v.
    Atty. Gen. U.S. of America, 836 F3d 336, 368 (3d Cir 2016),
    cert den, 
    137 S Ct 2323 (2017)
     (Hardiman, J., concurring)
    (explaining, with reference to the Journal of Convention
    from the 1788 Massachusetts ratifying convention and pro-
    posals made at the New Hampshire ratifying convention,
    that “[a] number of firearms restrictions from the founding
    and pre-founding era support” the conclusion that “the right
    3
    We have been unable to determine precisely what vehicle those exclusions
    took. As noted above, no laws existed that prohibited people with mental disor-
    ders from possessing firearms. It nevertheless is generally historically accepted
    that those individuals, along with felons and infants, were not entitled to Second
    Amendment protections.
    492                                                             State v. H. N.
    to keep and bear arms was understood to exclude those who
    presented a danger to the public”); Kanter v. Barr, 919 F3d
    437, 455-56 (7th Cir 2019) (Barrett, J., dissenting) (describ-
    ing debates at the Pennsylvania, Massachusetts, and New
    Hampshire ratifying conventions as “evidence of the scope
    of founding-era understandings regarding categorical
    exclusions from the enjoyment of the right to keep and bear
    arms”; stating that the “concern common to all three * * * is
    about threatened violence and the risk of public injury”; and
    explaining that “[t]his is the same concern that animated
    English and early American restrictions on arms posses-
    sion”); see also id. at 464 (“[h]istory * * * support[s] the prop-
    osition that the state can take the right to bear arms away
    from a category of people that it deems dangerous”).4
    That historical background reveals that it has long
    been this country’s “tradition” to disarm those who suffer
    from mental disorders, whether categorically or because
    they pose a danger to themselves or to others. Given that
    history, we conclude that the state has met its burden to
    show that ORS 426.130(1)(a)(D) is consistent with “this
    Nation’s historical tradition of firearm regulation.” Bruen,
    597 US at 17. Accordingly, ORS 426.130(1)(a)(D) is facially
    constitutional.5
    Affirmed.
    4
    See also Stephen P. Halbrook, The Founders’ Second Amendment 190-215
    (2008) (surveying the debates at the ratifying conventions and highlighting
    the commonplace understanding that “dangerous persons could be disarmed”);
    Patrick J. Charles, “Arms for Their Defence”?: An Historical, Legal, and Textual
    Analysis of the English Right to Have Arms and Whether the Second Amendment
    Should Be Incorporated in McDonald v. City of Chicago, 57 Clev St L Rev 351, 382
    (2009) (the Crown had the authority “to disarm not only papists, but dangerous
    and disaffected persons as well”).
    5
    We note that the order prohibiting appellant from purchasing or possess-
    ing a firearm “shall remain in effect until relief is granted under ORS 166.273.”
    ORS 166.273(5) entitles appellant to relief from the order if she shows that she
    is unlikely “to act in a manner that is dangerous to public safety” and that relief
    “would not be contrary to the public interest.” See ORS 166.250(1)(c)(D) (prohib-
    iting a person who “[w]as committed to the Oregon Health Authority under ORS
    426.130” from possessing a firearm); ORS 166.273(1)(a) (providing that those
    “barred from possessing or receiving a firearm” may petition the Psychiatric
    Security Review Board “for relief from the bar if * * * [t]he person is barred from
    possessing a firearm under ORS 166.250(1)(c)(D)”). That is, the ban on firearms
    under the statute is not permanent; once an individual no longer poses a danger to
    themselves or to others, they may petition to regain the right to possess a firearm.
    

Document Info

Docket Number: A179247

Filed Date: 1/31/2024

Precedential Status: Precedential

Modified Date: 1/31/2024