In District of Columbia v. Heller, 554 U.S. 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 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, 309 Or App 474, 483 P.3d 53, rev. den., 368 Or. 206, 487 P.3d 401 (2021); see also State v. Beeman, 290 Or App 429, 434 n. 2, 417 P.3d 541, rev. den., 363 Or. 119, 421 P.3d 351 (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 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 nations 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 nations 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 nations history and therefore constitutional under the Second Amendment. We therefore affirm the trial courts denial of defendants 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.” 554 U.S. at 653, 128 S.Ct. 2783. Although the Second Amendment confers an individual right to keep and bear arms, the right is “not unlimited.” Id. at 595, 626, 128 S Ct 2783. 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.”
Id. at 626-27, 128 S.Ct. 2783 (internal citations omitted). The Court further described such limits as being “presumptively lawful regulatory measures.” Id. at 627 n. 26, 128 S.Ct. 2783;
2
see also McDonald v. City of Chicago, 561 U.S. 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 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, 142 S Ct at 2126-27; Beeman, 290 Or App at 434 n. 2, 417 P.3d 541. 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, 142 S Ct at 2126. 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 laws burden 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 scrutiny. 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, 417 P.3d 541, 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, 290 Or App at 434, 417 P.3d 541; see also Heller, 554 U.S. at 626-27, 128 S.Ct. 2783; McDonald, 561 U.S. at 786, 130 S.Ct. 3020. We 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, 417 P.3d 541. 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 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, 621 F.3d 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 possessing 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 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 defendants 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, 309 Or App at 478, 483 P.3d 53.
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, 309 Or App at 478, 483 P.3d 53 (quoting Medina v. Whitaker, 913 F.3d 152, 155 (DC Cir. 2019), cert. den. sub nom Medina v. Barr, ––– U.S. ––––, 140 S Ct 645, 205 L.Ed.2d 386 (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, 913 F.3d at 159; see also, e.g., Folajtar v. AG of the United States, 980 F.3d 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 question 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 Amendments 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 Amendments plain text covers an individuals conduct, the Constitution presumptively protects that conduct. To justify [a states] regulation, * * * the regulation [must be] consistent with this Nations historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nations historical tradition may a court conclude that the individuals conduct falls outside the Second Amendments ‘unqualified command.’ ” Bruen, 597 US at ––––, 142 S Ct at 2126.
Justice Alito, in his concurrence, specifically noted that the Courts 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 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, 597 US at ––––, 142 S Ct at 2122 (“[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.”); 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 Yorks argument that “sensitive places where the government may lawfully disarm law-abiding citizens include all places where people typically congregate” (internal quotation marks omitted)); id. at 2135 n. 8 (“[I]n light of the text of the Second Amendment, along with the Nations 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.”); id. at 2138 (“Nor is there any such historical 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 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 nations 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 Amendments passage and for decades thereafter.” Id. at *4.
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 Nations founding.” Id.
3
Indeed, the Oregon Supreme Court observed as much after 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 P.3d 1104 (2005), overruled on other grounds by State v. Christian, 354 Or. 22, 307 P.3d 429 (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, 114 P.3d 1104. 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 lawbreakers right to bear arms is subject to restriction.”
Id. at 676, 114 P.3d 1104.
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, 554 U.S. at 625-26, 627 n. 26, 128 S.Ct. 2783. It is also consonant with the historical assessments that courts have engaged in, post-Bruen, in upholding restrictions on felons 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
APPLICATION
With that historical framework in mind, we turn to defendants challenge to ORS 166.270. At the outset, we agree with defendant that the Second Amendments plain text covers defendants possession of a firearm. Bruen, 597 US at ––––, 142 S Ct at 2129-30 (if the Second Amendments plain text covers the defendants 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, 597 US at ––––, 142 S Ct at 2127.
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 Nations historical tradition 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 assuming that the underlying premise of defendants argument is 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.
FOOTNOTES
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. Defendants 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 P.3d 304, cert. den. sub nom Sparks v. Oregon, 543 U.S. 893, 125 S.Ct. 219, 160 L.Ed.2d 158 (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.”).
2
. In his dissent, Justice Stevens underscored the fact that Heller “limits the protected class to ‘law abiding, responsible citizens.’ ” 554 U.S. at 644, 128 S.Ct. 2783 (Stevens, J., dissenting).
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 U.S. 24, 94 S Ct 2655, 41 L Ed 2d 551 (1974) (revocation of voting rights); De Veau v. Braisted, 363 U.S. 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 U.S. 189, 18 S Ct 573, 42 L Ed 1002 (1898) (prohibition against the practice of medicine).
4
. Although the court decided Hirsch/Friend before Bruen, its discussion of the Second Amendments history nevertheless remains relevant, perhaps even more so given Bruen’s emphasis on history.
5
. See, e.g., United States v. Coombes, No. 22-CR-00189-GKF, ––– F.Supp.3d ––––, ––––, 2022 WL 4367056 at *7 (ND Okla Sep 21, 2022); United States v. Carrero, No. 2:22-cr-00030, ––– F.Supp.3d ––––, ––––, 2022 WL 9348792 at *3 (D Utah Oct. 14, 2022); Campiti v. Garland, No. 3:22-cv-177 (AWT), ––– F.Supp.3d ––––, ––––, 2023 WL 143173 at *4 (D Conn Jan. 10, 2023); Fooks v. State, 255 Md App 75, 103-04, 278 A.3d 208, cert. granted, 482 Md. 141, 285 A.3d 848 (2022).
6
. See, e.g., Carrero, No. 2:22-cr-00030, ––– F.Supp.3d at ––––, 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, 278 A.3d 208 (“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 F.3d 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 F.3d 168, 174 (3d Cir. 2011), overruled in part by Binderup v. AG of the United States, 836 F.3d 336 (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, 594 F.3d 1111, 1113-14 (9th Cir. 2010) (same for felon with only prior non-violent car burglary and drug possession convictions); United States v. Skoien, 614 F.3d 638, 640 (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, ––– F.Supp.3d ––––, ––––, 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 F.3d 897, 911 (3d Cir. 2020) (holding out the possibility of an “exceptional federal or state felony unmoored from the bars historical underpinnings” but concluding that a person could be dispossessed of the right to bear arms for felony tax evasion).
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 Nations historical tradition of firearm regulation.” Bruen, 142 S Ct at 2126. Ultimately, however, we conclude that the burden does not affect the outcome here.
8
. Defendants 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 defendants distinction between violent and nonviolent offenses.
JOYCE, J.