State v. Parras

                                      246

  Argued and submitted March 17, affirmed June 7, petition for review denied
                      November 2, 2023 (

)


                          STATE OF OREGON,
                           Plaintiff-Respondent,
                                     v.
                        RUDY NINO PARRAS,
                         Defendant-Appellant.
                      Crook County Circuit Court
                         19CR11103; A174543
                                   

     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 fundamental right subject to strict scrutiny and his underlying felonies were “non-violent” felonies. He contends that, under New York Rifle & Pistol Assn. v. Bruen,

, 

, 

 (2022), the Second Amendment to
the United States Constitution covers his conduct and no “historical precedent
… evinces a comparable tradition of regulation.” 

. 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 previously in State v. Shelnutt, 

, 

, rev den, 

(2021), and State v. Beeman, 

, 434 n 2, 

, rev den,

 (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 differentiation 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 

 (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, 

,

, 

 (2008), the United States
Supreme Court concluded that the Second Amendment to
the United States Constitution protects the rights of individuals 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 firearm 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, 

, 

, rev den, 

 (2021); see also
State v. Beeman, 

, 434 n 2, 

,
rev den, 

 (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, 

, 

, 

 (2022). That decision modified
the two-part test that courts followed after Heller for determining 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 consistent 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 

 (2023)                                                 249

of defendant’s motion for a judgment of acquittal that challenged 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 trigger 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.” 

. Although the Second Amendment confers an individual right to keep and bear arms, the right is “not unlimited.”

. 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, commentators 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
    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 imposing 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 argument, 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, 

, 303 n 4, 

, cert den sub nom Sparks
v. Oregon, 

 (2004) (“Defendant … attacks the facial constitutionality 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 regulatory measures.” Id. at 627 n 26;2 see also McDonald v. City
of Chicago, 

, 

, 

 (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 buildings, 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 possession of firearms pass constitutional muster under the
Second Amendment. Bruen, 

; Beeman,

 n 2. At the first step, looking at the text
and history of the Second Amendment, courts upheld regulations if the state “establish[ed] that the challenged law
regulates activity falling outside the scope of the [Second
Amendment] right as originally understood.” Bruen, 

. 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.” 

 Courts applied strict scrutiny if the
“core” Second Amendment right was burdened—such as
self-defense—and, if not, courts applied intermediate scrutiny. 

.
         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, 

,
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 longstanding prohibitions on the possession of firearms by people convicted of felonies. Beeman, 

; see
also Heller, 

; McDonald, 

. We

    2
      In his dissent, Justice Stevens underscored the fact that Heller “limits the
protected class to ‘law abiding, responsible citizens.’ ” 

 (Stevens, J.,
dissenting).
Cite as 

 (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, 

. We applied an intermediate scrutiny standard and
concluded that ORS 166.270 is “substantially related to an
important governmental objective.” 

         In reaching that conclusion, we noted that our decision 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, 

 (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 possessing guns has been struck down in the wake of Heller.”

         We subsequently rejected an as-applied challenge
to ORS 166.270 in Shelnutt. The defendant in Shelnutt had
previously been convicted of possession of methamphetamine 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 indictment, we concluded that she had not “sufficiently demonstrated 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, 

.
         As we had in Beeman, we surveyed cases from other
courts that addressed, post-Heller, challenges to prohibitions 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 marginally better [than facial challenges …], and no circuit
has held the [federal dispossession statute] unconstitutional
as applied to a convicted felon.’ ” Shelnutt, 

                                             State v. Parras

478 (quoting Medina v. Whitaker, 

 (DC Cir
2019), cert den sub nom Medina v. Barr, ___ US ___, 

 (2019)).
         Many of those decisions, like Medina, traced the
history of prohibitions on the possession of firearms by people 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 constitutionality of restrictions on firearm possession—courts
routinely highlighted Second Amendment history establishing that the provision was intended only to protect the
rights of “virtuous citizens” and that the government could,
accordingly, disarm “unvirtuous citizens.” Medina, 

; see also, e.g., Folajtar v. Barr, 

 (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 question in Bruen was whether “ordinary, law-abiding citizens
have a [right] to carry handguns publicly for their self-defense.” 

, 

. 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.”

. 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.” 

.
          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 

 (2023)                               253

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, 

, 

.

         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, 

, 

(Alito, J., concurring); see also 

 (“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 prohibits 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, 

, 

 (“[T]he Second
and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home
for self-defense.”); 

 (“[O]rdinary, law-abiding citizens
have a similar right to carry handguns publicly for their
self-defense.”); 

 (describing petitioners as
“law-abiding, adult citizens”); 

 (describing New
York’s argument that “sensitive places where the government may lawfully disarm law-abiding citizens include all
places where people typically congregate” (internal quotation marks omitted)); 

 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 handguns because they have not demonstrated a special need for
self-defense.”); 

 (“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.”);

 (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”); 

 (“Nor, subject to a few latein-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 quotation 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, 

 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 passage and for decades thereafter.” Id. at 10.
         That said, “[n]o matter how difficult the investigation 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, 

, 

, 

 (1974) (revocation of voting rights); De Veau v. Braisted, 

, 

, 

 (1960) (proscription against holding office
in a waterfront labor organization); Hawker v. New York, 

, 

,

 (1898) (prohibition against the practice of medicine).
Cite as 

 (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, 

,

 (2005), overruled on other grounds by State
v. Christian, 

, 

 (2013).4 There, the
Supreme Court traced the historical context of Article I, section 27, of the Oregon Constitution and in doing so, examined 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—notably, ‘outlaws’ using weapons or otherwise committing injurious 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 citizenship, 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 virtuous 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 possession of firearms as “longstanding” and “presumptively
lawful[ ].” Heller, 

, 627 n 26. It is also consonant 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 distinguishing between types of felonies based on whether they
were violent or nonviolent. Although, as the state acknowledges, there appears to be no eighteenth or nineteenth century 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 reference 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, 

at *7 (ND Okla Sep 21, 2022); United States v. Carrero, No 2:22-cr-00030, 

 at *3 (D Utah Oct 14, 2022); Campiti v. Garland, No 3:22-cv-177
(AWT), 

 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, 

 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), 

 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, 

 (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, 

 (3d Cir 2011), overruled in part by Binderup v. AG of the
United States, 

 (3d Cir 2016) (rejecting challenge to felon in possession statute for person convicted of felonies for prior drug and receipt of stolen
weapons); United States v. Vongxay, 

 (9th Cir 2010) (same
for felon with only prior non-violent car burglary and drug possession convictions); United States v. Skoien, 

 (7th Cir 2010) (“disqualification to non-violent felons (embezzlers and tax evaders, for example) is presumptively constitutional”). But see United States v. Harrison, No CR-22-00328-PRW,

 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, 

 (3d Cir 2020) (holding out the possibility of an “exceptional federal or
state felony unmoored from the bar’s historical underpinnings” but concluding that a person could be dispossessed of the right to bear arms for felony tax
evasion).
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 (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, 

, 

 (if the Second Amendment’s
plain text covers the defendant’s conduct, the Constitution
“presumptively” covers that conduct). Thus, we must consider 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, 

, 

.
         Based on the history set forth above, we readily conclude that the answer is yes.7 The weight of historical evidence 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 tradition of firearm regulation.” Bruen, 

, 

.
         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 assuming 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, 

. Ultimately,
however, we conclude that the burden does not affect the outcome here.
258                                                       State v. Parras

correct—that his convictions for manufacture and possession 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 protections 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 defendant’s distinction between violent and nonviolent offenses.