State v. Vinge

No. 73               February 5, 2025                   621

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON
                 and City of Portland,
                Plaintiffs-Respondents,
                           v.
           TIMOTHY JACK ROBERT VINGE,
                 Defendant-Appellant.
            Multnomah County Circuit Court
                 22CR04892; A180291

  Kelly Skye, Judge.
  Argued and submitted November 20, 2024.
   Nora Coon, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
   Carson L. Whitehead, Assistant Attorney General,
argued the cause for respondent State of Oregon. Also on
the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
   Denis M. Vannier argued the cause and filed the brief for
respondent City of Portland.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
  JOYCE, J.
  Affirmed.
622   State v. Vinge
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           JOYCE, J.
         The state charged defendant with unlawful possession of a firearm, ORS 166.250, and possession of a loaded
firearm in public, Portland City Code 14A.60.010. Defendant
demurred to both charges, contending that the laws were
facially unconstitutional under the Second Amendment.
The trial court denied the demurrer, and defendant pled
guilty to both charges, reserving his right to challenge the
denial of the demurrer on appeal. On appeal, he reprises his
argument that both the state statute and the Portland City
Code are facially unconstitutional.
         We recently rejected a similar challenge to Portland
City Code 14A.60.010 in City of Portland v. Sottile, 

, ___ P3d ___ (2024). That decision disposes of defendant’s challenge to the city ordinance. And, as we explain
below, although Sottile addressed the constitutionality of
the ordinance and not ORS 166.250, Sottile’s reasoning goes
a long way toward resolving defendant’s constitutional challenge to ORS 166.250, inasmuch as it demonstrates that
regulating the manner of carriage of firearms is wholly consistent with the Second Amendment. We affirm.
         We begin by describing both what ORS 166.250
prohibits and, because that statute cross-references several
other provisions that bear on its operation, those related
statutes. ORS 166.250(1) prohibits a person from carrying
a concealed firearm on their person or in any vehicle, if the
weapon is “readily accessible” to the person within the vehicle.1 That prohibition, however, does not apply to someone
who is “licensed under ORS 166.291 and 166.292 to carry a
concealed handgun.” ORS 166.260(1)(i).
         ORS 166.291 and ORS 166.292, in turn, set forth the
requirements for obtaining and issuing a concealed handgun license. If a person meets the statutory requirements,
the sheriff “shall issue the person a concealed handgun
license.” ORS 166.291(1).2 Under ORS 166.293(2), a sheriff
    1
      The statute expressly excludes possession of firearms in a residence or in a
business. ORS 166.250(2)(b).
    2
      ORS 166.291 was amended after defendant’s conviction.. See Or Laws 2022,
ch 97, § 5 (effective Jan 1, 2023). Those amendments do not affect our analysis,
and we refer to the current version of the statute.
624                                              State v. Vinge

“may deny” a concealed carry license when the sheriff has
“reasonable grounds to believe that the applicant has been
or is reasonably likely to be a danger to self or others, or to
the community at large, as a result of the applicant’s mental or psychological state or as demonstrated by the applicant’s past pattern of behavior involving unlawful violence
or threats of unlawful violence.”
          So framed, we turn to defendant’s constitutional
challenge. Defendant’s challenge to ORS 166.250 is a
facial one, which necessarily circumscribes the scope of our
review. “A facial challenge is ‘the most difficult challenge
to mount successfully,’ because it ‘requires a defendant to
establish that no set of circumstances exists under which’
the law would be valid.” Sottile, 

 (quoting
United States v. Rahimi, 

, 

,
1898, 

 (2024)). To prevail, the state “need
only demonstrate that [the statute] is constitutional in some
of its applications.” Rahimi, 

. If the state can
establish, for example, that the statute is “capable of constitutional application to people, like defendant, who carry
loaded concealed firearms without lawful authorization,
then defendant’s facial challenge necessarily fails.” Sottile,

 (citing Rahimi, 

 (rejecting
a facial challenge to a statute by considering whether “the
provision is constitutional as applied to the facts of [the petitioner’s] own case”)).
         We thus turn to the question whether ORS 166.250
is capable of constitutional application. To answer that question, we apply the framework set out in New York State Rifle
& Pistol Assn., Inc. v. Bruen, 

, 

,

 (2022): “When the Second Amendment’s
plain text covers an individual’s conduct, the Constitution
presumptively protects that conduct. The government must
then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm
regulation.” The Court explained, “Only then may a court
conclude that the individual’s conduct falls outside the
Second Amendment’s ‘unqualified command.’ ” 

 (quoting
Konigsberg v. State Bar of California, 

, 49 n 10, 

, 

 (1961).
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        Under step one of the Bruen analysis, i.e., whether
the Second Amendment’s plain text covers an individual’s
conduct, ORS 166.250’s prohibition falls within the scope of
what the Second Amendment protects. See Rahimi, 

 (assuming that the defendant was protected by the
Second Amendment even though he had committed “family
violence”); Sottile, 

. We turn then to the
question whether ORS 166.250’s prohibition on possessing a
concealed firearm in public, subject to an exception for those
who are licensed to carry a concealed handgun, is consistent
with the nation’s tradition of firearm regulation.
          As we explained in Sottile, Bruen is replete with
references, both in the majority opinion and in the concurrences, to the lawfulness of restrictions on the right to carry
weapons in public, particularly with respect to concealed
weapons. Bruen, 

 (“[T]he right to keep and
bear arms in public has traditionally been subject to welldefined restrictions governing the intent for which one could
carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms.”). The Court
observed that “[t]he historical evidence from antebellum
America does demonstrate that the manner of public carry
was subject to reasonable regulation.” 

 (emphasis
in original); see also 

 (“Those restrictions, for example, limited the intent for which one could carry arms, the
manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as
before justices of the peace and other government officials.”).
Because history was replete with examples of prohibitions
on carrying concealed weapons, the Court acknowledged
that “ ‘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.’ ” 

 at 52 (quoting District of Columbia
v. Heller, 

, 

, 

(2008)). In short, “[s]tates could lawfully eliminate one kind
of public carry—concealed carry—so long as they left open
the option to carry openly.” Id. at 59; see also Sottile, 

 (discussing Bruen). ORS 166.250’s prohibition
on carrying concealed weapons in public is thus consonant
with those historical limitations.
626                                             State v. Vinge

          Defendant nevertheless contends that Oregon’s
concealed-carry-licensing scheme takes Oregon’s concealed
carry law outside of historical limitations. More specifically,
he points to ORS 166.293(2), which permits a sheriff to deny
a concealed carry license when the sheriff has reasonable
grounds to believe that the applicant may pose a danger to
themselves or to others. In defendant’s view, that discretion
renders Oregon’s statutory scheme similar to the one that the
Court struck down in Bruen. The New York law at issue in
Bruen made it a crime to possess a firearm without a license,
in or out of the home. 

 (discussing New York’s
licensing scheme). It permitted individuals to apply for a
license to carry a concealed weapon in public if they could
“demonstrate a special need for self-protection distinguishable from that of the general community.” 

 (internal quotation marks omitted). To possess a firearm at home,
an individual was required to demonstrate that they were
of good moral character, had no criminal history or mental
illness, and that “no good cause exist[ed] for the denial of the
license.” 

 (internal quotation marks omitted). Those determinations were made by a licensing officer. 

 The Court
noted that New York did not stand alone in requiring a permit to carry a handgun in public, but that the “vast majority”
of states—including Oregon—are “shall issue” jurisdictions.

 at 13 n 1; see also 

 (Kavanaugh, J., concurring)
(contrasting “may issue” licensing statutes with “shall issue”
statutes and describing Oregon’s statute as falling into the
latter category). “Shall issue” jurisdictions are those in which
the state must issue concealed carry licenses “whenever
applicants satisfy certain threshold requirements, without
granting licensing officials discretion to deny licenses based
on a perceived lack of need or suitability.” 

. In contrast to “shall issue” licensing statutes, “may issue” licensing
laws give states discretion to deny concealed carry licenses
even when the applicant satisfies the statutory criteria. 

. New York’s statute, being an example of a “may
issue” regime, was
   “constitutionally problematic because it grants open-ended
   discretion to licensing officials and authorizes licenses
   only for those applicants who can show some special need
   apart from self-defense. Those features of New York’s
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   regime—the unchanneled discretion for licensing officials
   and the special-need requirement—in effect deny the right
   to carry handguns for self-defense to many ‘ordinary, lawabiding citizens.’ ”
Id. at 79 (Kavanaugh, J., concurring).
         Notwithstanding the Court’s description of Oregon’s
concealed carry licensing statutes as being “shall issue”
(and thus constitutional), defendant contends that Oregon’s
statutes are in fact more akin to the “may issue” law at issue
in Bruen. Even if, for purposes of a Second Amendment
analysis, we are at liberty to frame Oregon’s statutory
scheme in a manner at odds with the Supreme Court’s
understanding of it, there are nevertheless two flaws with
defendant’s argument. The first is that Oregon’s statutes,
unlike New York’s, do not require any kind of demonstrated
need or good-cause requirement. Oregon officials “shall”
issue a concealed carry license if a person meets the statutory criteria. ORS 166.291(1).3 There is a limited exception to that mandate if a sheriff has grounds to believe that
the applicant may pose a danger to themselves or to others
because of a mental illness or violence, ORS 166.293(2), but
that limitation is unlike the requirements under New York’s
law, which granted the licensing officials “unchanneled”
discretion. And notably, the bases upon which a sheriff can
deny a license are themselves consistent with historical limitations on individuals carrying firearms. See State v. H. N.,

, 

 (2024) (noting that
history was replete with examples of disarming those who
were prone to violence or who suffered from mental illness
and posed a danger to themselves or to others).
         More fundamentally, however, defendant’s argument is untenable given the nature of his facial challenge.
Unquestionably, there are applications of the statutes that
would be constitutional. See Sottile, 

 (quoting Rahimi, 

 (requiring a defendant “to establish that no set of circumstances exists under which the law
would be valid” (internal quotation marks omitted))). For
instance, as the state notes, if a person did not apply for a
   3
     Defendant expressly does not challenge that statute nor suggest that it is
unconstitutional.
628                                            State v. Vinge

concealed carry permit, the specific requirements for receiving a permit would not be at issue and could not render
ORS 166.250(1)(b) unconstitutional. Or, again as the state
notes, if a person applied for a concealed carry permit and
the sheriff denied the application because that person had a
prior felony conviction, then application of ORS 166.250(1)(b)
to that person would have nothing to do with the parts of
the concealed carry license statutes that defendant has
identified.
        In short, defendant’s facial challenge to ORS
166.250 fails, and we affirm.
        Affirmed.