State v. Parras ( 2023 )

246
Argued and submitted March 17, affirmed June 7, petition for review denied
November 2, 2023 (371 Or 511)
STATE OF OREGON,
Plaintiff-Respondent,
v.
RUDY NINO PARRAS,
Defendant-Appellant.
Crook County Circuit Court
19CR11103; A174543
531 P3d 711
Defendant was convicted of being a felon in possession of a firearm under
ORS 166.270. He moved for a judgment of acquittal, arguing that ORS 166.270
is unconstitutional, as applied to him, because the right to bear arms is a fun-
damental right subject to strict scrutiny and his underlying felonies were “non-
violent” felonies. He contends that, under New York Rifle & Pistol Assn. v. Bruen,
597 US ___, 142 S Ct 2111, 213 L Ed 2d 387 (2022), the Second Amendment to
the United States Constitution covers his conduct and no “historical precedent
* * * evinces a comparable tradition of regulation.” Id. at 2131-32. This appeal
required the Court of Appeals to consider, given Bruen, whether ORS 166.270
remains constitutional as applied to defendant’s conduct. Held: ORS 166.270 is
consistent with our nation’s history of regulating firearms. As the court held pre-
viously in State v. Shelnutt, 309 Or App 474, 483 P3d 53, rev den, 368 Or 206(2021), and State v. Beeman, 290 Or App 429, 434 n 2, 417 P3d 541, rev den,
363 Or 119 (2018), prohibitions on the possession of firearms by people convicted
of felonies are firmly rooted in our nation’s history and therefore constitutional
under the Second Amendment. There is little historical evidence that any dif-
ferentiation was made between those who committed violent versus nonviolent
offenses with respect to Second Amendment protections.
Affirmed.
Daina A. Vitolins, Judge.
Erik M. Blumenthal, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
Carson L. Whitehead, Assistant Attorney General,
argued the cause for respondent. Also on the briefs were
Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General.
Cite as 326 Or App 246 (2023) 247
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
JOYCE, J.
Affirmed.
248 State v. Parras
JOYCE, J.
In District of Columbia v. Heller, 554 US 570,
128 S Ct 2783, 171 L Ed 2d 637 (2008), the United States
Supreme Court concluded that the Second Amendment to
the United States Constitution protects the rights of indi-
viduals to possess firearms for self-protection. After Heller,
courts across the country followed a two-part analysis for
determining whether a law prohibiting possession of a fire-
arm survived a Second Amendment challenge. Following
that test, we rejected an as-applied Second Amendment
challenge to ORS 166.270, which prevents people convicted
of felonies from possessing firearms. State v. Shelnutt, 309
Or App 474, 483 P3d 53, rev den, 368 Or 206 (2021); see also
State v. Beeman, 290 Or App 429, 434 n 2, 417 P3d 541,
rev den, 363 Or 119 (2018) (rejecting a facial challenge to
ORS 166.270 under Heller).
The United States Supreme Court then decided
New York Rifle & Pistol Assn. v. Bruen, 597 US ___, 142
S Ct 2111, 213 L Ed 2d 387 (2022). That decision modified
the two-part test that courts followed after Heller for deter-
mining whether a restriction on firearms comports with the
Second Amendment. After Bruen, a restriction on firearm
possession is constitutional only if it is consistent with the
nation’s history of firearm regulation.
This appeal requires us to consider, given Bruen,
whether ORS 166.270 remains constitutional. Defendant
was charged with a felon in possession of a firearm. He
moved for a judgment of acquittal, arguing that under
Heller, ORS 166.270 is unconstitutional as applied to him.
The trial court denied that motion and defendant appealed.
During the course of the appeal, the Supreme Court issued
Bruen. Given Bruen’s analytical framework, the question
that we now have to answer is whether ORS 166.270 is con-
sistent with our nation’s history of regulating firearms. We
conclude that it is. As we have noted previously in Beeman
and Shelnutt, prohibitions on the possession of firearms by
people convicted of felonies are firmly rooted in our nation’s
history and therefore constitutional under the Second
Amendment. We therefore affirm the trial court’s denial
Cite as 326 Or App 246 (2023) 249
of defendant’s motion for a judgment of acquittal that chal-
lenged ORS 166.270’s application to him.1
LEGAL BACKGROUND
To understand the impact of Bruen, we begin with
Heller. In Heller, the Court struck down a law that banned
possession of handguns in the home and that required other
kinds of firearms to be disassembled or bound by a trig-
ger lock. 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.” 554 US
at 653. Although the Second Amendment confers an individ-
ual right to keep and bear arms, the right is “not unlimited.”
Id. at 595, 626. The Court specifically highlighted bans on
felons in possession of firearms as one such permissible—
indeed, “longstanding”—limitation:
“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 con-
sider the question held that prohibitions on carrying con-
cealed weapons were lawful under the Second Amendment
or state analogues. Although we do not undertake an
exhaustive 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 impos-
ing conditions and qualifications on the commercial sale of
arms.”
1
After Bruen, defendant filed a motion to file a supplemental brief. We
allowed that motion. In his supplemental brief, defendant added a new argu-
ment, claiming that ORS 166.270 was facially unconstitutional. Defendant’s
newly raised argument is unpreserved, inasmuch as defendant expressly told the
trial court that he did not “want to venture too far into making a facial challenge”
to the statute. Although defendant asserts there is little difference—at least for
preservation purposes—between an as applied and facial challenge, we disagree.
See, e.g., State v. Sparks, 336 Or 298, 303 n 4, 83 P3d 304, cert den sub nom Sparks
v. Oregon, 543 US 893 (2004) (“Defendant * * * attacks the facial constitutional-
ity of the future dangerousness question, set out in ORS 163.150(1)(b)(B) * * *.
Because defendant did not preserve those arguments and they do not qualify as
error apparent on the face of the record, we do not address them.”).
250 State v. Parras
Id. at 626-27 (internal citations omitted). The Court further
described such limits as being “presumptively lawful regu-
latory measures.” Id. at 627 n 26;2 see also McDonald v. City
of 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 longstanding regulatory measures
as ‘prohibitions on the possession of firearms by felons and
the mentally ill,’ ‘laws forbidding the carrying of firearms
in sensitive places such as schools and government build-
ings, or laws imposing conditions and qualifications on the
commercial sale of arms.’ We repeat those assurances here.”
(Internal citation omitted.)).
Following Heller, courts created a two-step analysis
to determine whether statutes restricting the use and pos-
session of firearms pass constitutional muster under the
Second Amendment. Bruen, 142 S Ct at 2126-27; Beeman,
290 Or App at 434 n 2. At the first step, looking at the text
and history of the Second Amendment, courts upheld reg-
ulations if the state “establish[ed] that the challenged law
regulates activity falling outside the scope of the [Second
Amendment] right as originally understood.” Bruen, 142
S Ct at 2126. If not, courts then addressed a second ques-
tion, assessing “how close the law comes to the core of the
Second Amendment right and the severity of the law’s bur-
den on that right.” Id. Courts applied strict scrutiny if the
“core” Second Amendment right was burdened—such as
self-defense—and, if not, courts applied intermediate scru-
tiny. Id. at 2126-27.
That is the approach we took post-Heller when
faced with both facial and as-applied Second Amendment
challenges to ORS 166.270. In Beeman, 290 Or App at 434,
we rejected a facial challenge to ORS 166.270. We began
by noting that Heller and McDonald both took care to note
that their holdings could not be read to “cast doubt” on long-
standing prohibitions on the possession of firearms by peo-
ple convicted of felonies. Beeman, 290 Or App at 434; see
also Heller, 554 US at 626-27; McDonald, 561 US at 786. We
2
In his dissent, Justice Stevens underscored the fact that Heller “limits the
protected class to ‘law abiding, responsible citizens.’ ” 554 US at 644 (Stevens, J.,
dissenting).
Cite as 326 Or App 246 (2023) 251
went on to observe that “[t]he restriction on the possession
of firearms by a felon has a well-established, historical, and
obvious relationship to public safety.” Beeman, 290 Or App
at 434. We applied an intermediate scrutiny standard and
concluded that ORS 166.270 is “substantially related to an
important governmental objective.” Id.In reaching that conclusion, we noted that our deci-
sion was consistent with those around the country after
Heller, upholding (in the facial challenge context) challenges
to felon in possession prohibitions:
“In the wake of Heller, numerous facial challenges to
felon in possession statutes were raised nationwide. No
state law banning felons from possessing guns has ever
been struck down. See United States v. Yancey, 621 F3d
681, 685 (7th Cir 2010) (per curiam) (citing Adam Winkler,
Scrutinizing the Second Amendment, 105 Mich L Rev 683,
721 (2007)). Additionally, no federal ban on felons possess-
ing guns has been struck down in the wake of Heller.”
Id.We subsequently rejected an as-applied challenge
to ORS 166.270 in Shelnutt. The defendant in Shelnutt had
previously been convicted of possession of methamphet-
amine and was barred from possessing firearms. After being
charged under ORS 166.270, the defendant argued that to
bar her from possessing a firearm based on that predicate
“non-violent” felony violated her Second Amendment rights.
In the context of the defendant’s demurrer to her indict-
ment, we concluded that she had not “sufficiently demon-
strated that the underlying crime or her circumstances are
outside those historically excluded from the right to bear
arms” such that ORS 166.270 violated her rights under the
Second Amendment. Shelnutt, 309 Or App at 478.
As we had in Beeman, we surveyed cases from other
courts that addressed, post-Heller, challenges to prohibi-
tions on the possession of firearms by people convicted of
felonies, this time in the as-applied context. We noted that
post Heller, “ ‘[a]s-applied challenges have fared only mar-
ginally better [than facial challenges * * *], and no circuit
has held the [federal dispossession statute] unconstitutional
as applied to a convicted felon.’ ” Shelnutt, 309 Or App at252 State v. Parras
478 (quoting Medina v. Whitaker, 913 F3d 152, 155 (DC Cir
2019), cert den sub nom Medina v. Barr, ___ US ___, 140 S Ct
645 (2019)).
Many of those decisions, like Medina, traced the
history of prohibitions on the possession of firearms by peo-
ple convicted of felonies. Although we discuss that history
in much greater detail below—because Bruen insists that
history is the only consideration in determining the con-
stitutionality of restrictions on firearm possession—courts
routinely highlighted Second Amendment history estab-
lishing that the provision was intended only to protect the
rights of “virtuous citizens” and that the government could,
accordingly, disarm “unvirtuous citizens.” Medina, 913 F3d
at 159; see also, e.g., Folajtar v. Barr, 980 F3d 897 (3rd Cir
2020) (recognizing that many scholars, as well as its sibling
courts, have agreed with the “virtuous citizen” reasoning for
permitting governments to disarm “unvirtuous citizens”).
Thus, after Heller and McDonald, courts—including
our own—routinely held that prohibitions on the possession
of firearms by people convicted of felonies were permissible
under the Second Amendment.
Then came Bruen. As the Court framed it, the ques-
tion in Bruen was whether “ordinary, law-abiding citizens
have a [right] to carry handguns publicly for their self-
defense.” 597 US at ___, 142 S Ct at 2122. The Court observed
the pattern that had emerged post-Heller of courts using
a two-step framework for analyzing Second Amendment
challenges and “decline[d] to adopt that two-part approach.”
Id. at 2126. The Court concluded that although “[s]tep
one of the predominant framework is broadly consistent
with Heller, which demands a test rooted in the Second
Amendment’s text, as informed by history[,] * * * Heller and
McDonald do not support applying means-end scrutiny in
the Second Amendment context.” Id. at 2127.
Instead, “in keeping with Heller,” “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] consistent
with this Nation’s historical tradition of firearm regulation.
Cite as 326 Or App 246 (2023) 253
Only if a firearm regulation is consistent with this Nation’s
historical tradition may a court conclude that the individu-
al’s conduct falls outside the Second Amendment’s ‘unquali-
fied command.’ ” Bruen, 597 US at ___, 142 S Ct at 2126.
Justice Alito, in his concurrence, specifically noted
that the Court’s holding “decides nothing about who may
lawfully possess a firearm or the requirements that must
be met to buy a gun. Nor does it decide anything about the
kinds of weapons that people may possess. Nor have we
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 ___, 142 S Ct at 2157
(Alito, J., concurring); see also id. at 2161 (“Heller correctly
recognized that the Second Amendment codifies the right
of ordinary law-abiding Americans to protect themselves
from lethal violence by possessing and, if necessary, using a
gun.”).
Notably, Bruen was replete with references to the
Second Amendment as protecting the rights of “law-abiding
citizens,” a point that, as we describe below, is important
to our consideration whether the Second Amendment pro-
hibits felon-in-possession-of-firearm bans. Indeed, the Court
described the Second Amendment as protecting the rights
of “law-abiding citizens” no fewer than 10 times. See, e.g.,
Bruen, 597 US at ___, 142 S Ct at 2122 (“[T]he Second
and Fourteenth Amendments protect the right of an ordi-
nary, law-abiding citizen to possess a handgun in the home
for self-defense.”); id. (“[O]rdinary, law-abiding citizens
have a similar right to carry handguns publicly for their
self-defense.”); id. at 2125, 2134 (describing petitioners as
“law-abiding, adult citizens”); id. at 2133 (describing New
York’s argument that “sensitive places where the govern-
ment may lawfully disarm law-abiding citizens include all
places where people typically congregate” (internal quota-
tion marks omitted)); id. at 2135 n 8 (“[I]n light of the text of
the Second Amendment, along with the Nation’s history of
firearm regulation, we conclude below that a State may not
prevent law-abiding citizens from publicly carrying hand-
guns because they have not demonstrated a special need for
self-defense.”); id. at 2138 (“Nor is there any such historical
254 State v. Parras
tradition limiting public carry only to those law-abiding
citizens who demonstrate a special need for self-defense.”);
id. at 2150 (noting that “none [of the historical regulations
surveyed] operated to prevent law-abiding citizens with
ordinary self-defense needs from carrying arms in public
for that purpose”); id. at 2156 (“Nor, subject to a few late-
in-time outliers, have American governments required law-
abiding, responsible citizens to demonstrate a special need
for self-protection distinguishable from that of the general
community in order to carry arms in public.” (Internal quo-
tation marks omitted.)).
In sum, under Bruen, assuming a restriction on
firearm possession falls within the ambit of the Second
Amendment, that restriction is constitutional only if it is
consistent with our nation’s history of regulating firearms.
With that singular focus on history, many courts have
examined (or reexamined) the history around the Second
Amendment in the context of prohibitions on the possession
of firearms by people convicted of felonies. Of course, as
one court noted, “[d]eciphering history is always a fraught
enterprise[.]” United States v. Smith, No 22-CR-20351, 2023
WL 2215779 at *4 (ED Mich Feb 24, 2023). That is in part
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 political
participation at the time of the Second Amendment’s pas-
sage and for decades thereafter.” Id. at 10.
That said, “[n]o matter how difficult the investiga-
tion of relevant Second Amendment history may be in other
contexts, the conclusion is clear that disarming persons
deemed dangerous has been grounded in the heartland of
acceptable gun regulation since our Nation’s founding.” Id.3
Indeed, the Oregon Supreme Court observed as much after
3
In fact, people convicted of felonies are prevented from engaging in other
activities protected by the constitution—such as voting, holding public office, and
becoming professionally licensed. See Richardson v. Ramirez, 418 US 24, 94 S Ct
2655, 41 L Ed 2d 551 (1974) (revocation of voting rights); De Veau v. Braisted, 363
US 144, 80 S Ct 1146, 4 L Ed 2d 1109 (1960) (proscription against holding office
in a waterfront labor organization); Hawker v. New York, 170 US 189, 18 S Ct 573,
42 L Ed 1002 (1898) (prohibition against the practice of medicine).
Cite as 326 Or App 246 (2023) 255
conducting an extensive historical excavation of the Second
Amendment and its origins in assessing whether a felon
in possession of a weapon prohibition was consistent with
the state constitution. State v. Hirsch/Friend, 338 Or 622,
114 P3d 1104 (2005), overruled on other grounds by State
v. Christian, 354 Or 22, 307 P3d 429 (2013).4 There, the
Supreme Court traced the historical context of Article I, sec-
tion 27, of the Oregon Constitution and in doing so, exam-
ined the adoption of the Second Amendment. The court
noted that the framers of the United States Constitution
considered those who committed crimes to be outside of the
right to bear arms: “[T]he general view of the framers of the
Second Amendment that a certain criminal element—nota-
bly, ‘outlaws’ using weapons or otherwise committing injuri-
ous crimes against person and property—occupied a lesser
status in the community than the responsible, law-abiding
citizenry, particularly respecting the bearing of arms.”
Id. at 672. Additionally,
“the political view of the ‘virtuous citizen,’ also prevalent at
the time of the founding, suggested that the right to bear
arms carried with it the responsibility for upstanding cit-
izenship, which in turn required the willing taking up of
arms both to hunt down and to defend against those who
threatened the safety of the community. Under that view,
as many scholars and commentators have concluded, upon
violating the social compact between the citizenry and
society—and, simultaneously, the duty to act as a virtu-
ous citizen—by committing serious crime, the lawbreaker’s
right to bear arms is subject to restriction.”
Id. at 676.
That concept of virtuous citizenry is consonant with
the repeated references in Heller and Bruen to the Second
Amendment protecting the possession of firearms by “law-
abiding” citizens and characterizing bans on felons in pos-
session of firearms as “longstanding” and “presumptively
lawful[ ].” Heller, 554 US at 625-26, 627 n 26. It is also con-
sonant with the historical assessments that courts have
engaged in, post-Bruen, in upholding restrictions on felons
4
Although the court decided Hirsch/Friend before Bruen, its discussion of
the Second Amendment’s history nevertheless remains relevant, perhaps even
more so given Bruen’s emphasis on history.
256 State v. Parras
in possession of firearm bans; each has concluded that the
weight of tradition and history shows that the framers of the
constitution would have understood that those who commit
felonies would not fall within the protections of the Second
Amendment.5
Furthermore, there is no historical basis for distin-
guishing between types of felonies based on whether they
were violent or nonviolent. Although, as the state acknowl-
edges, there appears to be no eighteenth or nineteenth cen-
tury laws prohibiting the possession of firearms by people
convicted of felonies, the historical record is replete with
evidence that those who were not law abiding—without ref-
erence to violent or nonviolent acts—were not entitled to the
protection of the Second Amendment. Based on that history,
courts have by and large rejected that distinction.6
5
See, e.g., United States v. Coombes, No 22-CR-00189-GKF, 2022 WL 4367056at *7 (ND Okla Sep 21, 2022); United States v. Carrero, No 2:22-cr-00030, 2022
WL 9348792 at *3 (D Utah Oct 14, 2022); Campiti v. Garland, No 3:22-cv-177
(AWT), 2023 WL 143173 at *4 (D Conn Jan 10, 2023); Fooks v. State, 255 Md App
75, 103-04, 278 A3d 208, cert granted, 482 Md 141, 285 A3d 848 (2022).
6
See, e.g., Carrero, No. 2:22-cr-00030, 2022 WL 9348792 at *7 (rejecting
challenge to felon in possession prohibition as applied to a defendant convicted
of distribution of narcotics); Fooks, 255 Md App at 95 (“The fact that constructive
criminal contempt ‘contains no elements of violence’ proves nothing by itself. * * *
[T]here is no requirement that an individual be convicted of a violent crime to
be prohibited from possessing a firearm.”); United States v. Jackson, No. 21-51
(DWF/TNL), 2022 WL 4226229 at *5-6 (D Minn Sept 13, 2022) (upholding felon
in possession prohibition as applied to defendant convicted of prior felonies
that “were nonviolent” but “involved dangerous conduct[,]” including involved
drugs, the unlawful possession of a firearm, and drug trafficking); United States
v. Pruess, 703 F3d 242, 247 (4th Cir 2012) (“We now join our sister circuits in
holding that application of the felon-in-possession prohibition to allegedly non-
violent felons * * * does not violate the Second Amendment.”); United States v.
Barton, 633 F3d 168, 174 (3d Cir 2011), overruled in part by Binderup v. AG of the
United States, 836 F3d 336 (3d Cir 2016) (rejecting challenge to felon in posses-
sion statute for person convicted of felonies for prior drug and receipt of stolen
weapons); United States v. Vongxay, 594 F3d 1111, 1113-14 (9th Cir 2010) (same
for felon with only prior non-violent car burglary and drug possession convic-
tions); United States v. Skoien, 614 F3d 638, 640 (7th Cir 2010) (“disqualifica-
tion to non-violent felons (embezzlers and tax evaders, for example) is presump-
tively constitutional”). But see United States v. Harrison, No CR-22-00328-PRW,
2023 WL 1771138 at *3 (WD Okla Feb 3, 2023) (finding constitutional violation
in case of a statute prohibiting possession of a firearm by someone who was
“an unlawful user of marijuana”); Folajtar v. AG of the United States, 980 F3d
897, 911 (3d Cir 2020) (holding out the possibility of an “exceptional federal or
state felony unmoored from the bar’s historical underpinnings” but conclud-
ing that a person could be dispossessed of the right to bear arms for felony tax
evasion).
Cite as 326 Or App 246 (2023) 257
APPLICATION
With that historical framework in mind, we turn
to defendant’s challenge to ORS 166.270. At the outset, we
agree with defendant that the Second Amendment’s plain
text covers defendant’s possession of a firearm. Bruen, 597
US at ___, 142 S Ct at 2129-30 (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 166.270 is nevertheless consistent with
the “historical tradition that delimits the outer bounds of
the right to keep and bear arms.” Bruen, 597 US at ___, 142
S Ct at 2127.
Based on the history set forth above, we readily con-
clude that the answer is yes.7 The weight of historical evi-
dence shows that it was understood that individuals could be
divested of Second Amendment protections if they broke the
social contract of being a virtuous citizen by committing a
serious crime. While 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 concept that those who committed serious crimes were
historically not entitled to Second Amendment protections
did exist at the time of the framing. We thus conclude that
ORS 166.270 is consistent with “this Nation’s historical tra-
dition of firearm regulation.” Bruen, 597 US at ___, 142 S Ct
at 2126.
For his part, defendant argues that ORS 166.270 is
unconstitutional as applied to him because his underlying
felonies, manufacture and possession of methamphetamine,
were “non-violent” offenses. Defendant asserts that even if
the Second Amendment does not ensure to those who commit
felonies the right to possess firearms, that is true only for
those who have committed “violent” felonies. Even assum-
ing that the underlying premise of defendant’s argument is
7
In their initial briefs, filed before Bruen was decided, the parties disputed
who, in the context of a motion for judgment of acquittal, carries the burden to
show that the statute cannot be constitutionally applied to defendant. To some
extent, Bruen appears to resolve that dispute, inasmuch as it requires that “the
government * * * demonstrate that the regulation is consistent with this Nation’s
historical tradition of firearm regulation.” Bruen, 142 S Ct at 2126. Ultimately,
however, we conclude that the burden does not affect the outcome here.
258 State v. Parras
correct—that his convictions for manufacture and posses-
sion of methamphetamine were “non-violent” felonies—as
described above, it was generally understood that those who
were not “virtuous” and law abiding fell outside the protec-
tions of the Second Amendment. There is little historical
evidence that any differentiation was made between those
who committed serious violent versus non-violent offenses
with respect to Second Amendment protections.8
We thus conclude that the application of ORS
166.270(1) to defendant based on his felony convictions did
not infringe on constitutionally protected conduct and did
not violate the Second Amendment.
Affirmed.
8
Defendant’s as-applied challenge does not require us to resolve the full
scope of what offenses may have disqualified someone from being “virtuous” or
“law abiding” for purposes of the Second Amendment, other than to reject defen-
dant’s distinction between violent and nonviolent offenses.