Argued and submitted March 11, 2013, at Lewis & Clark College of Law, Portland.
On review from the Court of Appeals.[*] CC 080951814, CA A142137
Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief was Peter Gartlan, Chief Defender.
Harry Auerbach, Chief Deputy City Attorney, Portland, argued the cause and filed the brief for respondents on review.
Jerry Lidz, Eugene City Attorney's Office, filed the brief for amicus curiae League of Oregon Cities. With him on the brief was Sean E. O'Day, League of Oregon Cities.
Robert M. Atkinson, Portland, filed the brief for amicus curiae Robert M. Atkinson.
Paul C. Elsner, Beery, Elsner & Hammond, LLP, Portland, filed the brief for amici curiae Major City Chiefs Association, International Municipal Lawyers Association, and The United States Conference of Mayors. With him on the brief were Chad A. Jacobs, Portland, John Daniel Reaves, Washington DC, and Lawrence Rosenthal, Orange, California.
Before Balmer, Chief Justice, and Kistler, Walters, Linder, Landau, and Baldwin, Justices. [**]
Defendant was convicted of several weapons-related charges based on his possession of loaded semiautomatic handguns and a knife in a public place within the city of Portland. The Court of Appeals affirmed. State v. Christian, 249 Or.App. 1, 274 P.3d 262 (2012). Defendant petitioned this court to review his convictions for violating a City of Portland ordinance prohibiting the possession or the carrying of a firearm in a public place having recklessly failed to unload it. After considering defendant's constitutional challenges to the ordinance under Article I, section 27, of the Oregon Constitution, and under the Second Amendment to the United States Constitution, we conclude that the ordinance enacted by the City of Portland is constitutional, and we affirm.
In September 2008, defendant entered a convenience store in Portland and placed a black bag behind the counter. Defendant then exited the store and sat on a chair in front of the store. Shortly thereafter, Officers Laws and Berne approached defendant. Berne obtained defendant's consent to search him and found an empty firearm holster, a loaded magazine, two knives, one of which was concealed in his pocket, and a can of pepper spray. Berne asked whether defendant had firearms nearby, and defendant stated that he had placed firearms inside the store. The officers entered the store and retrieved the black bag from behind the counter. With defendant's consent, the officers searched the bag and discovered two loaded nine-millimeter semiautomatic handguns and additional loaded magazines. The officers obtained consent to search defendant's vehicle and found a .22-caliber rifle, two sets of handcuffs, police batons, flashlights, and binoculars.
Defendant was charged with two counts of violating a state statute prohibiting the carrying of a concealed firearm, two counts of violating a City of Portland ordinance prohibiting the carrying of a firearm in a public place having recklessly failed to unload it, and one count of violating a state law prohibiting the carrying of a concealed knife. With respect to the four firearm charges, the state alleged that defendant had violated the state statute and Portland City Code (PCC) 14A.60.010 (ordinance),  by carrying the two loaded handguns, concealed in the black bag, across a public sidewalk and into the convenience store.
Before trial, defendant filed motions to dismiss and a demurrer, arguing that the state's concealed firearm statute and the city's ordinance violated Article I, section 27, of the Oregon Constitution and the Second Amendment to the United States Constitution. Defendant contended that the state statute and the city's ordinance were unconstitutionally overbroad in violation of Article I, section 27, because, although either could be constitutionally applied in some circumstances, the provisions impinged on the constitutional right to bear arms for purposes of self-defense as recognized in State v. Hirsch/Friend, 338 Or 622, 114 P.3d 1104 (2005). Defendant further asserted that the ordinance violated the Second Amendment as interpreted in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The trial court overruled the demurrer and denied defendant's motion to dismiss. The case proceeded to a bench trial, and defendant was convicted on all charges.
Defendant appealed, challenging only the constitutionality of the Portland ordinance. In a split en banc decision, the majority of the Court of Appeals affirmed, concluding that the ordinance was not overbroad under Article I, section 27, and did not otherwise violate the Second Amendment. In interpreting the ordinance, the majority of the Court of Appeals determined that a violation of the ordinance occurs when a person knows that he or she possesses or carries a loaded firearm in a public place and recklessly does so anyway by being aware of a substantial risk of harm and consciously disregarding that risk. Christian, 249 Or.App. at 5-6. In contrast, under the construction of the ordinance advanced by the parties, the ordinance is violated when a person, who is not exempted from the ordinance, possesses a firearm in public and recklessly fails to unload it.
We adopt the construction of the ordinance advanced by the parties, determine that overbreadth challenges are not cognizable in Article I, section 27, cases, and conclude that the ordinance is constitutional under Article I, section 27, of the Oregon Constitution and under the Second Amendment to the United States Constitution.
A. Construction of the Portland Ordinance
Our threshold task is to interpret the meaning and reach of the contested ordinance. As noted, PCC 14A.60.010(A) provides:
"It is unlawful for any person to knowingly possess or carry a firearm, in or upon a public place, including while in a vehicle in a public place, recklessly having failed to remove all the ammunition from the firearm."
The ordinance sets out 14 exceptions to the prohibition, including an exception for persons who are licensed by the State of Oregon to carry a concealed weapon. Other exceptions include police officers and members of the military in the performance of their official duties, licensed hunters while engaging in hunting activities or traveling for that purpose, and persons traveling to and from established target ranges.
Many terms in the ordinance have plain meanings that the parties do not dispute. The term "public place" is defined within the Portland City Code in a manner consistent with the legislative grant of authority "to regulate, restrict or prohibit the possession of loaded firearms in public places as defined in ORS 161.015." ORS 166.173(1); see also ORS 161.015 (defining"public places"); PCC 14A.10.010(O) (providing definition of "public places" that parallels ORS 161.015). PCC 14A.20.040 further provides that the city code "shall be construed so as to render it consistent with state criminal law." Because the city code does not define the terms "knowingly" and "recklessly, " those terms are to be defined as provided for under state criminal law. By incorporating state law, "knowingly" is therefore defined as follows:
"'Knowingly' or 'with knowledge, ' when used with respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists."
ORS 161.085(8). "Recklessly" is likewise defined as follows:
"'Recklessly, ' when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."
In light of those definitions, the parties agree that the only ambiguity in the text of the ordinance relates to the meaning of the word "recklessly, " based on the placement of that word. The Court of Appeals concluded that "recklessly, " which appears in the second clause of the provision, modified the phrase "knowingly possess or carry a firearm" in the first clause of the provision. Christian, 249 Or.App. at 5-7. That interpretation requires that a person have knowledge that the firearm that he or she possesses in public is loaded and nevertheless recklessly proceed with an awareness that doing so creates an unreasonable and unjustifiable risk of harm. In contrast, the parties and the dissents below interpret the word "recklessly" to modify the phrase "having failed to remove all the ammunition from the firearm" and, as a result, adopt a broader construction of the ordinance. Under that construction, a person violates the ordinance if that person knowingly possesses or carries a firearm in public and is aware of and disregards a substantial risk that the firearm is loaded.
A grammatical reading of the ordinance is that "recklessly, " an adverb, modifies the phrase that immediately follows it. See Delgado v. Souders, 334 Or 122, 132, 46 P.3d 729 (2002) (interpretation of anti-stalking statute where placement of adverbs "intentionally, " "knowingly, " and "recklessly" immediately before the verb "engage" demonstrated that the adverbs modified the verb). The first clause of the ordinance includes the adverb (and mental state) "knowingly, " to modify the verbs "possess" and "carry." To also modify those verbs with "recklessly" unnecessarily creates ambiguity with respect to the required mental state for a conviction under the ordinance. We therefore conclude that the proper interpretation of the ordinance is the meaning agreed to by the parties. Therefore, a person violates the ordinance when he or she knowingly possesses or carries a firearm in a public place except under circumstances specifically exempted.
Based on that construction, we make several initial observations about the reach of the ordinance. First, the ordinance is not directed in any way to the manner of possession or use of firearms for self-defense within the home. By definition, the areas that the ordinance regulates are public places only. Second, the ordinance does not prohibit the mere possession of firearms in public places but specifically regulates only the manner of possession, namely, knowingly possessing or carrying a loaded firearm in public and recklessly failing to remove all of the ammunition. Third, with the exceptions noted, the ordinance prohibits possessing or carrying of loaded firearms in all public places. Significantly, the ordinance does not prohibit a person from knowingly possessing or carrying a loaded firearm in a public place if the "person [is] licensed to carry a concealed handgun." PCC 14A.60.010(C)(3).
With those points in mind, we return to the parties' arguments on review. Defendant challenges the ordinance under Article I, section 27, as facially overbroad. Defendant's overbreadth challenge is based on the contention that the individual right to bear arms for the purpose of defense guaranteed by Article I, section 27, includes an unlimited right to carry a loaded firearm in all public places in a manner that would allow a person to immediately use the firearm to resist a deadly attack.
In response, the city and amicus curiae League of Oregon Cities (amicus) make a principled argument that overbreadth challenges that question the validity of all conceivable applications of a challenged law should not be cognizable in Article I, section 27, cases. To inform our decision in this case, we first turn to a brief review of our Article I, section 27, ...