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FILED: March 21, 2012

IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON and CITY OF PORTLAND, Plaintiffs-Respondents, v. JONATHAN D. CHRISTIAN, aka Jonathan David Christian, Defendant-Appellant. Multnomah County Circuit Court 080951814 A142137 En Banc John A. Wittmayer, Judge. Submitted on March 23, 2011; resubmitted en banc December 06, 2011. Peter Gartlan, Chief Defender, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. John R. Kroger, Attorney General, David B. Thompson, Interim Solicitor General, and Erika L. Hadlock, Senior Assistant Attorney General, filed the brief for respondent State of Oregon. Harry Auerbach, Chief Deputy City Attorney, City Attorney's Office, filed the brief for respondent City of Portland. Before Brewer, Chief Judge, and Haselton, Armstrong, Wollheim, Schuman, Ortega, Sercombe, and Nakamoto, Judges, and Edmonds, Senior Judge. SCHUMAN, J. Affirmed. Armstrong, J., dissenting. Edmonds, S. J., dissenting.

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SCHUMAN, P. J. Defendant was charged with two counts of violating a state law against carrying a concealed firearm, one count of violating a state law against carrying a concealed knife, and two counts of violating a Portland ordinance against carrying a firearm in a public place having recklessly failed to unload it. Before trial, he filed a "demurrer/motion to dismiss," arguing that the concealed firearm statute and the Portland ordinance violate the Second Amendment to the United States Constitution and Article I, section 27, of the Oregon Constitution. The court denied the demurrer and motion, and defendant was subsequently convicted on all charges. On appeal, he assigns error to the denial of his demurrer and motion, but only insofar as the ruling rejected his challenges to the Portland ordinance; he does not challenge the state laws or appeal his other convictions. We conclude that the ordinance is constitutional. We therefore affirm. INTERPRETATION OF PCC 14A.60.010(A) By virtue of his demurrer and pretrial motion to dismiss, defendant chose to challenge the ordinance facially, that is, by contending that enactment of the ordinance violates the Oregon and United States constitutions regardless of the circumstances in which it was enforced or applied against him. See State v. Borowski, 231 Or App 511, 516, 220 P3d 100 (2009) (describing facial challenges). Two consequences flow from that choice. First, the only relevant facts in this case are that defendant was charged with, and tried for, violating the ordinance, and those facts are relevant only to establish that he has standing to challenge it; the circumstances surrounding his arrest play no part in our

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analysis. Id. Second, although generally a facial challenge to a law will fail if the law can constitutionally be applied in any imaginable situation, Jensen v. Whitlow, 334 Or 412, 421, 51 P3d 599 (2002), in a facial challenge under Article I, section 27, a starkly different analysis applies: If we determine that legislation is significantly overbroad-that, in some significant number of circumstances, it punishes constitutionally protected activity--we must declare the legislation to be unconstitutional, State v. Hirsch/Friend, 338 Or 622, 626-29, 114 P3d 1104 (2005)--although it is also important to note that "a statute that proscribes protected conduct only at its margins remains valid." State v. IlligRenn, 341 Or 228, 232, 142 P3d 62 (2006); see also New York v. Ferber, 458 US 747, 773, 102 S Ct 3348, 73 L Ed 2d 1113 (1982) (upholding, against a facial challenge, a statute "whose legitimate reach dwarfs its arguably impermissible applications").1 The ordinance at issue, Portland City Code (PCC)14A.60.010(A),2 provides:
1

It is also worth noting that this "overbreadth" rule derives from United States Supreme Court cases under the First Amendment, State v. Blocker, 291 Or 255, 261, 630 P2d 824 (1981), and is, in federal law, limited to such cases, Broadrick v. Oklahoma, 413 US 601, 611, 93 S Ct 2908, 37 L Ed 2d 830 (1973). As the Fourth Circuit has explained, overbreadth analysis addresses a "speech-specific problem, [Broadrick] at 611-12. * * * [O]verbroad regulations [of expression] can easily encourage speakers to modify their speech, shifting it away from controversy. No analogous arguments obtain in the Second Amendment context." U.S. v. Chester, 628 F3d 673, 688 (4th Cir 2010) (emphasis added). Nonetheless, the Oregon Supreme Court in Blocker, 291 Or at 261, applied First Amendment overbreadth in the context of Article I, section 27, without explaining why the doctrine should apply outside of free expression or assembly cases, and Blocker was cited as authority in Hirsch/Friend, 338 Or at 626-29--again without explanation or analysis.
2

Portland has statutory authority to enact regulations of firearms. ORS 166.173(1).

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"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." There are 14 exceptions that "constitute affirmative defenses to a violation" of the ordinance, including for police and military personnel, persons with a concealed handgun permit, and hunters while hunting or going to or returning from a hunting expedition. PCC 14A.60.010(C).3
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"The following are exceptions and constitute affirmative defenses to a violation of [the ordinance]: "1. A police officer or other duly appointed peace officers, whether active or honorably retired. "2. A member of the military in the performance of official duty. "3. A person licensed to carry a concealed handgun. "4. A person authorized to possess a loaded firearm while in or on a public building under ORS 166.370. "5. A government employee authorized or required by his or her employment or office to carry firearms. "6. A person summoned by a police officer to assist in making arrests or preserving the peace, while such person is actually engaged in assisting the officer. "7. A merchant who possesses or is engaged in lawfully transporting unloaded firearms as merchandise. "8. Organizations which are by law authorized to purchase or receive weapons from the United States or from this state. "9. Duly authorized military or civil organizations while parading, or their members when going to and from the places of meeting of their organization. 3

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Most of the words and phrases in PCC 14A.60.010(A) have noncontroversial plain meanings: possess, carry, vehicle, remove, ammunition. "Public place" is defined elsewhere in the code (PCC 14A.10.010(O)) and is not controversial for purposes of this challenge. "Knowingly" and "recklessly" are not expressly defined in the code; however, PCC 14A.20.040 provides that the code "shall be construed so as to render it consistent with state criminal law," and state criminal law--in particular, ORS 161.085--defines the terms as follows: "(8) '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. "(9) '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. "10. A corrections officer while transporting or accompanying an individual convicted of or arrested for an offense and confined in a place of incarceration or detention while outside the confines of the place of incarceration or detention. "11. Persons travelling to and from an established target range, whether public or private, for the purpose of practicing shooting targets at the target ranges. "12. Licensed hunters or fishermen while engaged in hunting or fishing, or while going to or returning from a hunting or fishing expedition. "13. A person authorized by permit of the Chief of Police to possess a loaded firearm, clip or magazine in a public place in the City of Portland. "14. A security guard employed at a financial institution insured by the Federal Deposit Insurance Corporation while the security guard is on duty."

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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." A violation of the ordinance occurs, then, when a person (1) possesses or carries a loaded firearm in a public place; (2) knows that he or she is carrying or possessing the loaded firearm and that the place is public; (3) recklessly does so anyway, that is, is aware of the fact that carrying the loaded firearm in public creates an unreasonable, unjustifiable risk; and (4) nonetheless consciously disregards that risk and bears the firearm in a public place anyway. Defendant (and the dissent) under-appreciate the effect of the term "recklessly," apparently contending that it refers only to the isolated act of not unloading the firearm, as opposed to that act and its inherent consequent risks when the loaded weapon is borne in public. That interpretation makes no sense logically or syntactically. It would result in a rule that prohibits carrying a loaded firearm in public, having at some point been aware of and consciously disregarding the risk that not unloading the firearm creates a significant, unreasonable, and unjustifiable risk of . . . a loaded firearm. To take an action recklessly--that is, aware of and disregarding the fact that the action creates a risk--the risk must be of something other than the action itself. We do not say that a person who drives recklessly does so because he or she drives while aware of and disregarding the risk that he or she will drive. The crime of reckless driving is made out only if the driving "endangers the safety of persons or property." ORS 811.140(1). "Recklessly," however, itself incorporates another undefined term:

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"unjustifiable risk." Defining that term is crucial, because consciously disregarding a justifiable risk is not reckless and is therefore not prohibited by the ordinance. Because the term "unjustifiable risk" is defined in the criminal code, ORS 161.085(9), the code's related provisions in the same chapter and regarding "justification," ORS 161.190 to 161.275, are relevant and instructive. PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). Of particular relevance to PCC 14A.60.010(A) are provisions governing the use of "deadly physical force," because the risk of misusing loaded firearms is presumptively deadly. A person is justified in using deadly physical force against another person if the user reasonably believes that the other person is "(1) Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person; or "(2) Committing or attempting to commit a burglary in a dwelling; or "(3) Using or about to use unlawful deadly physical force against a person." ORS 161.219. Further, a person is justified in using deadly physical force in defense of premises "[w]hen the person reasonably believes it necessary to prevent the commission [by a trespasser] of arson or a felony by force and violence * * *." ORS 161.225(2)(b). Thus, adopting the meaning of "unjustified" into the definition of "recklessly" and the definition of "recklessly" into PCC 14A.60.010(A), we come to the following interpretation of that provision: A violation of the ordinance occurs if (1) a person possesses or carries a loaded firearm in a public place; (2) the person knows that he or she is carrying the firearm, that it is loaded, and that he or she is in a public place;

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(3) the person is conscious that being in a public place with the loaded firearm creates a substantial risk; (4) the substantial risk is unjustified, that is, it is not a risk that would inhere in using the firearm for the kinds of self-defense, defense of others, or defense of premises that are statutorily justified; and (5) the person nonetheless disregarded that risk.4 PCC 14A.60.010(A) AND ARTICLE I, SECTION 27 Article I, section 27, of the Oregon Constitution provides: "The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]" Does PCC 14A.60.010(A), as interpreted above, interfere with a person's right to bear arms in defense of self or home? See State v. Kessler, 289 Or 359, 367, 614 P2d 94 (1980) (Article I, section 27, protects individual right to protect self or home). The history and scope of Article I, section 27, have been thoroughly and authoritatively discussed and reviewed by the Supreme Court, most recently in Hirsch/Friend, 338 Or at 632-78. We see no benefit in rehearsing that work here beyond restating its relevant conclusions:

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ORS 161.115(3) provides, "When recklessness suffices to establish a culpable mental state, it is also established if a person acts intentionally or knowingly." Thus, "intentionally" and "knowingly" incorporate the elements of recklessness, including the element of unjustifiable risk. State v. Cook, 163 Or App 578, 582, 989 P2d 474 (1999) ("By statutory definition, however, 'reckless' is subsumed within 'intentional' as a mental element actuating criminal conduct."). As applied to PCC 14A.60.010(A), ORS 161.115(3) means that a violation of the ordinance is established if a person intentionally or knowingly creates an unjustified risk that harm will occur.

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"[W]hen the drafters of the Oregon Constitution adopted and approved the wording of Article I, section 27, they did not intend to deprive the legislature of the authority to restrict arms possession (and manner of possession) to the extent that such regulation of arms is necessary to protect the public safety. * * * "That is not to say, however, that the legislature's authority to restrict the bearing of arms is so broad as to be unlimited. Rather, any restriction must satisfy the purpose of that authority in the face of Article I, section 27: the protection of public safety. It follows that, although it has broad authority under that provision to assess the threat to public safety that a particular group poses, the legislature is not free to designate any group without limitation as one whose membership may not bear arms. Instead, such a designation must satisfy the permissible legislative purpose of protecting the security of the community against the potential harm that results from the possession of arms. "The foregoing conclusion is consistent with the historical underpinnings of the right to bear arms * * *. It also is consistent with the early American arms restrictions and certain early practices * * * of disarming particular persons who threatened the state's interest in maintaining security: The common thread among all those restrictions was their objective of protecting the public from identifiable threats to the public safety, such as serious criminal conduct and various harms resulting from the possession of arms (e.g., shooting within town limits)." Id. at 677-78. In light of these precepts, the answer to the question raised above--Does PCC 14A.60.010(A) interfere with a person's constitutional right to bear arms in defense of self or home?--seems self-evident. The ordinance does not prohibit a person from any conduct in home, even reckless conduct and intentional misconduct short of crime. It does not prohibit a person with a permit to carry concealed weapons from knowingly carrying a recklessly not-unloaded firearm in a public place. PCC 14A.60.010(C)(3) (exception for person licensed to carry a concealed handgun). It does not prohibit a person from carrying a recklessly not-unloaded weapon in a public place in order to engage in justified conduct--reasonable defense of self against felonious attack. Its 8

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prohibitory scope includes only a person who has knowingly carried a loaded firearm in a public place for some purpose other than defense of self or home from felonious attack, consciously disregarding the substantial risk that doing so will endanger public safety. Compared to the lawful sweep of the ordinance, such occurrences--if there are any--are rare outliers; thus, even if such occurrences were constitutionally protected, the statute would survive a facial challenge. Illig-Renn, 341 Or at 232 (statute that proscribes protected conduct only at its margins remains valid). More to the point, the rare instances of conduct that the ordinance prohibits are not protected; rather, they are well within the city's legislative authority as necessary to protect public safety, as that concept was understood when the Oregon Constitution was adopted and as it is understood today. As thoroughly explained by the dissent and by the court in Hirsch/Friend, statutes and ordinances regulating the possession of concealed weapons and completely banning the discharge of firearms in urban areas were commonplace and well accepted when the Oregon Constitution was adopted. Using such statutes as guidelines for determining the scope of Article I, section 27, today, the court in Hirsch/Friend concluded that statutes prohibiting the possession of firearms by felons pass muster under the Oregon Constitution. 338 Or at 678. In reaching that conclusion, the court in Hirsch/Friend reasoned that, although lawmakers had authority to restrict the right to bear arms in defense of self, that authority is not unlimited. Id. at 677. But the limiting principle is this: "[A]ny restriction must satisfy the purpose of that authority in the face of Article I, section 27: the protection of public safety, * * * [that is,] protecting

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the security of the community against the potential harm that results from the possession of arms." Id. at 677-78. A narrowly drawn ordinance that penalizes a person only if he or she consciously disregards a substantial risk that failing to unload a weapon that he or she will carry or has carried into a public place for some unjustified purpose will cause substantial harm--such an ordinance trenches on no conduct that is protected by the right to bear arms as that right is guaranteed by Article I, section 27, as definitively construed.5 PCC 14A.60.010(A) AND THE SECOND AMENDMENT The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The protections afforded by the Second Amendment are incorporated into the Fourteenth Amendment and therefore apply against state and local governments. McDonald v. Chicago, ___ US ___, ___, 130 S Ct 3020, 177 L Ed 2d 894 (2010). It is axiomatic that a law that is not proscribed by the Oregon Constitution may nonetheless violate the United States Constitution in the event that the federal guarantee affords more protection than the state guarantee. Unlike the challenge under the Oregon Constitution, however, defendant's challenge under the Second Amendment can be disposed of with little difficulty. That is so because the standard for evaluating a

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Although neither party advances an interpretation of PCC 14A.60.010(A) that is precisely the same as the one that we arrive at, the city does argue that the term "unjustified" limits application of the ordinance to rare circumstances. In any event, this court is obligated to correctly interpret laws even if the parties do not. Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997).

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facial overbreadth challenge under the Second Amendment is different from the standard under Article I, section 27. As noted above, ___ Or App at ___ n 1 (slip op at 2 n 1), under Article I, section 27, so-called "First Amendment overbreadth" analysis applies so that an enactment will be declared unconstitutional on its face if it is significantly overbroad, that is, if it would violate the constitution in any significant number of applications. Hirsch/Friend, 338 Or at 628-29. Under federal constitutional law, however, First Amendment overbreadth applies only to First Amendment cases; in Second Amendment cases, as in all other facial constitutional challenges outside of the First Amendment, the enactment will be declared unconstitutional only if it is unconstitutional in every conceivable application. United States v. Salerno, 481 US 739, 745, 107 S Ct 2095, 95 L Ed 2d 697 (1987); see also Ohio v. Akron Center for Reproductive Health, 497 US 502, 514, 110 S Ct 2972, 111 L Ed 2d 405 (1990) ("[B]ecause appellees are making a facial challenge to a statute, they must show that no set of circumstances exists under which the Act would be valid." (Internal quotation marks omitted; emphasis added.)); U.S. v. Chester, 628 F3d 673, 688 (4th Cir 2010) (First Amendment overbreadth does not apply in Second Amendment cases). Because we have established that the ordinance is constitutional in almost every situation, it follows a fortiori that it is constitutional in some situations. At the least, it could for example be applied constitutionally to a person who carries a recklessly not-unloaded firearm into a courtroom or school. District of Columbia v. Heller, 554 US 570, 626, 128 S Ct 2783, 171 L Ed 2d 637 (2008). PCC 14A.60.010(A) does not, on its face, violate

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the Second Amendment. DISPOSITION Defendant was convicted of violating several state statutes in addition to PCC 14A.60.010. He does not appeal the state law convictions, and we therefore affirm them. Regarding the Portland ordinance, defendant assigns error to the trial court's denial of his demurrer and to his motion to dismiss. The demurrer and motion to dismiss were submitted before trial in a single document and supported by only one argument: that PCC 14A.60.010(A) is facially unconstitutional.6 Because we conclude that the trial court did not err in rejecting that argument, we must affirm defendant's conviction under the ordinance, without necessarily agreeing that the facts as adduced at trial justify that verdict. Affirmed.

6

Defendant characterized the motion to dismiss as a motion "pursuant to ORS 135.630(4), on the grounds that because the applicable statute is unconstitutional, the facts stated do not constitute an offense[.]" ORS 135.630(4) provides that a "defendant may demur to the accusatory instrument when it appears upon the face thereof * * * [t]hat the facts stated do not constitute an offense." (Emphasis added.) Thus, the assertion that the facts stated do not constitute an offense refers to the facts alleged in the information, not the facts developed at trial.

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ARMSTRONG, J., dissenting. The majority tries but fails to identify a plausible interpretation of the Portland ordinance that differs from the one that Judge Edmonds has identified in his dissent. Stated simply, and subject to exceptions that are not relevant to this case, the ordinance prohibits a person from knowingly carrying a firearm in a public place in Portland that the person has recklessly failed to unload. In context, the reference to a reckless failure to unload the firearm describes circumstances in which the person "is aware of and consciously disregards a substantial and unjustifiable risk" that the firearm is loaded. In other words, the person carries the firearm notwithstanding a substantial risk that it is loaded and under circumstances in which the person's contrary belief is unjustified. So understood, the ordinance distinguishes between a gang member who carries a gun that another gang member has asked the person to carry to patrol the gang's purported territory and a person who carries a gun to a shooting range that the person's parent has said is unloaded. It is evident that the city sought to draw such a distinction in enacting its ordinance. The majority's effort to construct a different understanding of the ordinance is understandable but unavailing. So understood, I have no difficulty concluding that the ordinance violates Article I, section 27, of the Oregon Constitution, which guarantees to people the right to bear arms for personal defense.1 Judge Edmonds has produced a comprehensive analysis

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Article I, section 27, of the Oregon Constitution provides: "The people shall have the right to bear arms for the defence [sic] of 1

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of the history behind the adoption of Oregon's constitutional guarantee of the right to bear arms. In light of that history, I have no doubt that a restriction that prohibits most people from openly carrying a loaded firearm in all places open to the public, as Portland's ordinance does, violates the Oregon guarantee. I also have no doubt that there are restrictions on the manner and locations in which people can carry loaded firearms that the state and local governments may impose without violating the Oregon guarantee. Our task in this case, however, is not to identify permissible governmental restrictions on the carrying of loaded firearms in public but to determine whether the Portland ordinance violates the Oregon guarantee. I am satisfied that it does, and I therefore dissent from the majority's contrary conclusion. Brewer, C. J., Nakamoto, J., and Edmonds, S. J., join in this dissent.

themselves and the State, but the Military shall be kept in strict subordination to the civil power[.]"

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EDMONDS, S. J., dissenting. The majority holds that Portland City Code (PCC) 14A.60.010 is constitutional under Article I, section 27, of the Oregon Constitution. I disagree with the majority's holding because (1) the majority's interpretation is at odds with the interpretation advanced by the city; (2) the majority's interpretation is at odds with the rule of construction that legislative enactments are to be construed to express the intention of their drafters; (3) the majority's interpretation fails to inform an ordinary person what the circumstances are that will result in the person being in violation of the ordinance; and (4) the reach of the ordinance infringes on the right to self-defense guaranteed by Article I, section 27, because it prohibits the possession or carrying of a loaded firearm openly in all public places within the city. In sum, the majority's interpretation creates different elements for conviction under the ordinance than the parties understood at the time of trial of this case, and, as a result, defendant finds himself convicted of a crime that he did not commit. PCC 14A.60.010 is entitled "Possession of a Loaded Firearm in a Public Place." Subsections (A) and (B) of PCC 14A.60.010 provide: "A. 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. "B. It is unlawful for any person to knowingly possess or carry a firearm and that firearm's clip or magazine, in or upon a public place, including

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while in a vehicle in a public place, recklessly having failed to remove all the ammunition from the clip or magazine."1

1

ORS 166.173 provides: "(1) A city or county may adopt ordinances to regulate, restrict or prohibit the possession of loaded firearms in public places as defined in ORS 161.015. "(2) Ordinances adopted under subsection (1) of this section do not apply to or affect: "(a) A law enforcement officer in the performance of official duty. "(b) A member of the military in the performance of official duty. "(c) A person licensed to carry a concealed handgun. "(d) A person authorized to possess a loaded firearm while in or on a public building or court facility under ORS 166.370. "(e) An employee of the United States Department of Agriculture, acting within the scope of employment, who possesses a loaded firearm in the course of the lawful taking of wildlife."

PCC 14A.60.010(C) specifically provides for exceptions to the prohibition on the possession of a loaded firearm in public: "The following are exceptions and constitute affirmative defenses to a violation of the ordinance: "1. A police officer or other duly appointed peace officers, whether active or honorably retired. "2. A member of the military in the performance of official duty. "3. A person licensed to carry a concealed handgun. "4. A person authorized to possess a loaded firearm while in or on a public building under ORS 166.370. "5. A government employee authorized or required by his or her 2

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PCC 14A.10.010(O) defines a "public place" as a "publicly or privately owned place to which the general public has access and may include but is not limited to public property and areas of private property open to the public such as spaces within apartment houses and hotels not constituting rooms or apartments designed for actual residence,

employment or office to carry firearms. "6. A person summoned by a police officer to assist in making arrests or preserving the peace, while such person is actually engaged in assisting the officer. "7. A merchant who possesses or is engaged in lawfully transporting unloaded firearms as merchandise. "8. Organizations which are by law authorized to purchase or receive weapons from the United States or from this state. "9. Duly authorized military or civil organizations while parading, or their members when going to and from the places of meeting of their organization. "10. A corrections officer while transporting or accompanying an individual convicted of or arrested for an offense and confined in a place of incarceration or detention while outside the confines of the place of incarceration or detention. "11. Persons travelling to and from an established target range, whether public or private, for the purpose of practicing shooting targets at the target ranges. "12. Licensed hunters or fishermen while engaged in hunting or fishing, or while going to or returning from a hunting or fishing expedition. "13. A person authorized by permit of the Chief of Police to possess a loaded firearm, clip or magazine in a public place in the City of Portland. "14. A security guard employed at a financial institution insured by the Federal Deposit Insurance Corporation while the security guard is on duty."

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schools, places of amusement, parks, playgrounds, and premises used in connection with public passenger transportation." Article I, section 27, provides that "the people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]"2 Defendant argues that PCC 14A.60.010(A) is constitutionally overbroad under Article I, section 27, because the ordinance "prohibit[s] the public from possessing loaded firearms in public places." In defendant's view, the ordinance "defeats the purpose" of Article I, section 27, because "[a] firearm cannot be used for self-defense unless it is loaded." Some background is helpful to understand the issue framed by defendant's challenge to the constitutionality of the ordinance. In State v. Boyce, 61 Or App 662, 658 P2d 577, rev den, 295 Or 122 (1983), this court rejected an overbreadth challenge to former PCC 14.32.010, reasoning that the city's restriction against carrying loaded firearms within its boundaries did not violate Article I, section 27. Id. at 666. The city's initial response to defendant's argument is to rely on our holding in Boyce. It contends that we ought to hold the ordinance constitutional under Boyce because "[t]he only difference between [former PCC 14.32.010] and PCC 14A.60.010, under which defendant here was convicted, is that the latter now includes a mens rea requirement, that the failure to remove the ammunition be 'reckless.'"

2

In contrast to Article I, section 27, the Second Amendment to the United States Constitution provides that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

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In my view, this court's reasoning in Boyce has been implicitly overruled by the Supreme Court's holding in State v. Hirsch/Friend, 338 Or 622, 114 P3d 1104 (2005). In Hirsch/Friend, the court adopted a standard of review with respect to Article I, section 27, that it had previously applied to challenges involving Article I, section 8, of the Oregon Constitution.3 The court explained that, "[u]nlike with other facial challenges, a challenger raising an overbreadth challenge need not demonstrate that the statute at issue is unconstitutional under the particular circumstances at hand. Rather, the challenger will prevail in his or her facial challenge if the court concludes that the statute in question prohibits constitutionally protected conduct of any kind." 338 Or at 628. Consequently, we are to determine in this case whether, in light of the express guarantee in Article I, section 27, to bear arms for purposes of self-defense, the city's ordinance prohibits constitutionally protected conduct of any kind. In Boyce, we undertook to answer that question as it applied to an earlier version of the city's ordinance. We held that ordinance to be constitutionally valid as an exercise of the City of Portland's police power. Relying on Christian et al. v. La Forge, 194 Or 450, 242 P2d 797 (1952), we explained: "In fulfilling its obligation to protect the health, safety and welfare of its citizens, a government body must sometimes pass legislation that touches upon a right guaranteed by the state or federal constitution. Such an encroachment is permissible when the unrestricted exercise of the right poses a clear threat to the 'interests and welfare of the public in general.'" Boyce, 61 Or App at 665-66 (quoting Christian, 194 Or at 462). However, the Supreme Court's subsequent decisions in Hirsch/Friend and State v. Delgado, 298 Or 395, 692 P2d
3

Article I, section 8, guarantees the right to "free expression of opinion" and "the right to speak, write, or print freely on any subject whatever."

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610 (1984), cast doubt on the holding in Boyce. Again, some case law background is helpful to understanding the court's holding in Hirsch/Friend. In State v. Kessler, 289 Or 359, 614 P2d 94 (1980), the Supreme Court considered the scope of Article I, section 27, for the first time. Delgado, 298 Or at 398. In Kessler, the defendant was charged with possession of billy clubs in violation of a state statute. When Kessler came before the Court of Appeals, this court held that the prohibition in the statute was within the reasonable exercise of the state's "police power" to control crime. State v. Kessler, 43 Or App 303, 307, 602 P2d 1096 (1979). The Supreme Court reversed our holding in Kessler after examining the historical roots of Article I, section 27.4 Following Kessler, the court, in Delgado, undertook to decide whether a state statute prohibiting the mere possession and carrying of a switchblade knife violated the defendant's right to bear arms under Article I, section 27. The court did not frame the issue in terms of a reasonable exercise of governmental power to regulate for purposes of public safety. Rather, it stated: "The appropriate inquiry in the case at bar is whether a kind of weapon, as modified by its modern design and function, is of the sort commonly used by individuals for personal defense during either the revolutionary and post-<fjrevolutionary era, or in 1859 when Oregon's constitution was adopted. In particular, it must be determined whether the drafters would have intended the word 'arms' to include the switch-blade knife as a weapon commonly used by individuals for self defense."
4

The court held in State v. Blocker, 291 Or 255, 259, 630 P2d 824 (1981), that the possession of a billy club outside as well as inside a residence is constitutionally protected under Article I, section 27.

6

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Delgado, 298 Or at 400-01 (footnote omitted). In Hirsch/Friend, the court explained more fully why it refused to consider the power of a governmental entity to regulate for purposes of public safety in determining an issue of constitutionality under Article I, section 27: "As noted, in both [State v. Robinson, 217 Or 612, 343 P3d 886 (1959),] and [State v. Cartwright, 246 Or 120, 418 P2d 822 (1966), cert den, 386 US 937 (1967)], this court grounded its conclusions that the statutory prohibition at issue did not contravene Article I, section 27, in the 'police power' doctrine, which generally seeks to determine whether a legislative enactment reasonably 'is in the interests of the public health, safety, and general welfare.' Christian et al. v. La Forge, 194 Or 450, 462, 242 P2d 797 (1952). However, this court in more recent years has explained that any constitutional notion of the 'police power' does not refer to an independent source of legislative power itself; rather, it merely represents the legislature's general plenary power to legislate. * * * [S]ee also Eckles v. State of Oregon, 306 Or 380, 399, 760 P2d 846 (1988), cert dismissed, 490 US 1032 (1989) ('[T]he "police power" is indistinguishable from the state's inherent power to enact laws and regulations; the existence of that power cannot explain the extent to which the power is constitutionally limited.'). The court similarly has clarified that 'the state cannot avoid a constitutional command by "balancing" it against another of the state's interests or obligations, such as protection of the "vital interests" of the people'; rather, any constitutional limitations on the state's actions 'must be found within the language or history' of the constitution itself. Eckles, 306 Or at 399." 338 Or at 638-39 (citation omitted; emphasis added). In keeping with the above construct, the Hirsch/Friend court observed: "The court in Kessler first discussed the origins of Article I, section 27, noting that it shared a common historical background with other state constitutional arms provisions drafted in the Revolutionary and postRevolutionary War era. [289 Or] at 363. In the court's view, that common background suggested three likely purposes of the Oregon guarantee: the historical preference for a citizen militia; 'the deterrence of government from oppressing unarmed segments of the population'; and, as noted earlier, the protection of the individual's right to bear arms to defend his or her person and home. Id. at 366-67. The court further determined that the term 7

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'arms' was intended to include 'those weapons used by settlers for both personal and military defense * * * [but] would not have included cannon or other heavy ordinance not kept by militiamen or private citizens.' Id. at 368. "After generally concluding that Article I, section 27, 'includes a right to possess certain arms for defense of person and property,' id. at 377, the court in Kessler held that that constitutional provision protected the defendant's possession of the billy clubs, after concluding that a billy club qualified as the type of weapon 'commonly used for personal defense' at the time that the people adopted Article I, section 27, id. at 372. The court narrowed its ultimate conclusion, however, to the particular circumstances of the case before it, specifically holding that Article I, section 27, protected defendant's possession of billy clubs in his home." Id. at 640 (second brackets in original). Finally, the Hirsch/Friend court noted that, although the mere possession of an arm under Article I, section 27, is protected, a governmental entity may permissibly regulate the manner of possession and the use of constitutionally protected arms in circumstances outside the scope of Article I, section 27. Id. at 643. Those circumstances that are not within the scope of the constitutional protection may have at their core a public safety concern. Id. at 677. An example of a permissible regulation of the manner of possession of a protected arm, according to the court, would be the prohibition against the carrying of a concealed weapon. An example of a permissible regulation of the use of a constitutionally protected arm would be a prohibition against the use of a constitutionally protected arm for an unlawful purpose. In summary, the Supreme Court case law under Article I, section 27, leads to the following understandings: (1) Unlike the analysis used in Boyce, the scope of protected conduct under Article I, section 27, does not include consideration of the city's

8

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power to regulate for purposes of public safety; (2) rather, the proper inquiry is whether the city's ordinance reaches conduct that is within the scope of protection under Article I, section 27; and (3) while Article I, section 27, precludes the legislature from prohibiting the mere possession or carrying of a constitutionally protected arm for purposes of selfdefense, a legislative branch of a governmental entity may regulate the manner of possession and the use of constitutionally protected arms for purposes related to public safety so long as that regulation does not infringe on the protected scope of the constitutional right to bear arms for self-defense. The majority appears not to quarrel with the above principles or my understanding of the controlling case law. Rather, it takes a different tack by reading PCC 14A.60.010(A) to mean that the ordinance's prohibitory scope "includes only a person who has knowingly carried a loaded firearm in a public place for some purpose other than defense of self or home from felonious attack, consciously disregarding the substantial risk that doing so will endanger public safety." ___ Or App at ___ (slip op at 9). According to the majority, "[a] violation of the ordinance occurs, then, when a person (1) possesses or carries a loaded firearm in a public place; (2) knows that he or she is carrying or possessing the loaded firearm and that the place is public; and recklessly does so anyway, that is, (3) is aware of the fact that carrying the loaded firearm in public creates an unreasonable, unjustifiable risk; and (4) nonetheless consciously disregards that risk and bears the firearm in a public place anyway." ___ Or App at ___ (emphasis omitted) (slip op at 5). I. THE MAJORITY'S CONSTRUCT IS AT ODDS WITH THE CITY'S INTERPRETATION OF ITS OWN ORDINANCE

9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

At the core of my disagreement with the majority is that its interpretation affords a meaning to the ordinance that has not been advanced by the city. Indeed, the majority effectively concedes that assertion when it states that, "[a]lthough neither party advances an interpretation of PCC 14A.60.010(A) that is precisely the same as the one we arrive at, the city does argue that the term 'unjustified' limits application of the ordinance to rare circumstances. In any event, this court is obligated to correctly interpret laws even if the parties do not. Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997)." ___ Or App at ___ n 5 (slip op at 10 n 5). In reality, the interpretation of the ordinance advanced by the city is far different from the conduct that the majority asserts the ordinance prohibits. In particular, the city has never contended in this case that the ordinance applies only to "rare" circumstances. The city explains: "PCC 14A.60.010.A does not outlaw the 'mere possession' of a firearm, not even of a loaded firearm. Rather, it outlaws only the knowing possession of a loaded firearm in a public place, if the person has recklessly failed to remove the ammunition. And it does that only if a person does not come within one of the fourteen enumerated exceptions. PCC 14A.60.010.A is a 'permissible legislative regulation of the manner of possession.'" (Citations omitted; emphasis in original.) In other words, under the city's interpretation, any possession of a loaded firearm in a public place unless exempted by the ordinance violates the ordinance, and the prohibitory scope of the ordinance extends even to the circumstance where the possessor attempts to unload the firearm but acts recklessly in that effort, resulting in the firearm remaining loaded. Thus, the city's interpretation of its own ordinance constitutes a blanket prohibition outlawing every circumstance of

10

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possessing a loaded firearm in a public place subject to the exemptions listed in the ordinance. Indeed, there would be no need for the promulgation of the list of exemptions in the ordinance if, as the majority asserts, the circumstances to which the ordinance applies are "rare." Additionally, the majority's reliance on Stull is misplaced. PCC 14A.60.010(A) is a product of the exercise of legislative authority by the Portland City Council. The only issue before us is whether the city's interpretation of its ordinance is constitutional under Article I, section 27. This court has no authority to rewrite the city's ordinance by judicial fiat, and Stull does not authorize the majority to create its own interpretation of the ordinance in the circumstance of a constitutional challenge to an existing ordinance. In Stull, the issue was when a civil action is deemed commenced for the purposes of a statute of limitations enacted by the Oregon legislature. In resolving that issue, the court noted that its task was to discern the intent of the legislature and if that intent was clear from the text and context of the statute, then the court's inquiry was at an end. 326 Or at 77. The court observed that, "[i]n construing a statute, this court is responsible for identifying the correct interpretation whether or not asserted by the parties." Id. The court then applied a "well-established meaning" of the word "filed" to define the meaning of the word. What was not at issue in Stull was the constitutionality of a statute, nor was there before the court a proffered interpretation by the legislative body that enacted the statute. Most importantly, the Stull court undertook with its analysis to ascertain what the legislature intended regarding the language that it used in

11

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the statute. Because the lynchpin to any proper statutory interpretation is an inquiry regarding legislative intent, the majority, by authoring its own interpretation of the ordinance without taking into account what the city intended, materially departs from its obligation as a court reviewing the meaning of a legislative enactment. Rather, this court's obligation under controlling Supreme Court case law is to interpret laws consistently with the intent of their drafters in constitutional overbreadth challenges. See State v. Rangel, 328 Or 294, 304, 977 P2d 379 (1999) (when analyzing statute for constitutional overbreadth, a court "must keep faith with the legislature's policy choices, as reflected in the statute's words, and respect the legislature's responsibility in the first instance to enact laws that do not intrude on the [constitutional right]"). In this case, where the only issue is the constitutionality of the ordinance, the majority's failure to consider the interpretation advanced by the city of its own ordinance is a fatal flaw in its analysis. II. THE MAJORITY'S ANALYSIS IS INCONSISTENT WITH THE RULES OF STATUTORY CONSTRUCTION The disagreement in this case about the meaning of the ordinance is not between the city and defendant; rather, it is between the majority and the parties. The disagreement has its genesis in the phrase "recklessly having failed to remove all the ammunition from the firearm" in the ordinance. According to the majority, the phrase results in the ordinance prohibiting solely the reckless possession of a loaded firearm. Based on that premise, the majority concludes that the ordinance is constitutional under 12

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Article I, section 27. But, under the city's interpretation, the following conduct is made unlawful: (1) when a person knowingly or intentionally loads or leaves a firearm loaded while inhabiting a public place within the city; (2) when a person is found in possession of a loaded firearm in a public place within the city even though the person believed that the firearm was unloaded but the person recklessly failed to unload it; and (3) when a person is found in possession of an unloaded firearm and a loaded clip or magazine for the firearm even though the person believed the clip or magazine was unloaded but recklessly failed to unload it. Assuming that the ordinance is ambiguous because of the "recklessly failing to remove ammunition" phrase, the governing rules of law regarding ambiguous legislative enactments require this court to construe the ordinance in accordance with the interpretation of the legislative body enacting it. See, e.g., State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).5 In the briefing of this case to determine the constitutionality of the ordinance, the city has offered evidence of its legislative intent. According to the city, its prior ordinance provided that "it is unlawful for any person on a public street or in a public place to carry a firearm upon his person, or in a vehicle under his control, or in which he is an occupant, unless all ammunition has been removed from the chamber and from the cylinder, clip, or magazine."

5

A statute or ordinance is ambiguous when it is reasonably susceptible to more than one interpretation. Presumably, the majority must agree that the ordinance is susceptible to more than one reasonable interpretation. Otherwise, the majority puts itself in the untenable position of declaring that its interpretation is the only reasonable interpretation and that the city's interpretation of an ordinance that the city drafted is not reasonable.

13

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In this case, the city agrees with defendant, who contends that the ordinance prohibits possession of loaded firearms and asserts that "the only difference between the [ordinances]" is that the latter now includes a "mens rea requirement, that the failure to remove the ammunition be 'reckless.'" In other words, the present ordinance, as did the previous ordinance, continues to make it unlawful to possess or carry a loaded firearm in a public place within the city except as permitted by the exemptions to the ordinance. If the majority were to follow the established template for statutory interpretation, it would then be required to ascertain the intention of the City Council when it promulgated the ordinance. But, as is evident from its own admission, it has not done so. Moreover, the failure of the majority to abide by the rules of statutory construction results in an additional conundrum. Under the majority's construction, if a person charged under the ordinance is permitted to testify that he or she reasonably perceived the need to carry a loaded firearm for the purpose of self-defense, and if that testimony, if believed by the factfinder, is sufficient to defeat a prosecution under the ordinance, then the majority has effectively written into the ordinance a self-defense exemption--an exception that the city admittedly did not include among the more than a dozen exceptions it enacted. But, by doing so, the majority violates ORS 174.010 by inserting into the ordinance "that which has been omitted."6 On the other hand, if the

6

ORS 174.010 provides: "In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and 14

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majority's construction does not have the effect of inserting an exception for self-defense into the ordinance, then the ordinance infringes on the protection guaranteed by Article I, section 27, because, under the ordinance's language, there is no exception for the open carrying of a loaded firearm for self-defense. III. THE MAJORITY'S INTERPRETATION FAILS TO INFORM A PERSON OR THE CITY WHEN THAT PERSON IS IN VIOLATION OF THE ORDINANCE The ordinance makes the possession, or the carrying, of a loaded firearm unlawful. Thus, the prohibition of the ordinance is aimed at whether the firearm is loaded and not how it is used. Under the majority's construct, however, a person violates the ordinance if the possession or carrying of the firearm in public creates an unjustifiable risk that the person consciously disregards. See ___ Or App at ___ (slip op at 5-6). Whether and when the risk of carrying a loaded weapon will become "unjustified" cannot be foreseen by a reasonable person.7

where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all."
7

At a more fundamental level, the majority's reliance on the statutory definitions of "justification" when setting out the scope of the right to self-defense under Article I, section 27, is problematic. Although the majority frames its opinion as a construction of PCC 14A.60.010(A), the majority is, in fact, restricting the scope of the right to selfdefense under Article I, section 27. Indeed, the majority must set out what it believes to be the outer limits of the scope of Article I, section 27, in order to conclude, as it does, that the ordinance does not infringe upon that right. See ___ Or App at ___ (slip op at 9). Although the majority points to Hirsch/Friend as the source of its conception of the scope of Article I, section 27, Hirsch/Friend is silent on that question because the issue in Hirsch/Friend was not what conduct falls within the scope of Article I, section 27, but rather who falls within the scope of the guarantee. See 338 Or at 677-78 (explaining legislature's retention of authority to "assess the threat to public safety that a particular group poses" (emphasis added)). The majority's reliance on Hirsch/Friend is unavailing, 15

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A contrast with the act of driving while impaired demonstrates the point. When a person drives a motor vehicle on a public highway while impaired by intoxicants, the law provides that such conduct can be evidence of "recklessness" as defined by statute because the risks of driving a motor vehicle while impaired are widely known and socially accepted, as reflected by the multiplicity of statutes proscribing that conduct. In contrast, there are no uniformly accepted societal norms, much less norms that have found their expression in the law, that announce when the mere carrying, openly, of a loaded firearm constitutes an unjustified risk of harm to others.8 The statutes relating to

and, thus, the majority must be relying upon the legislatively defined term "unjustifiable risk" and related statutes governing justification defenses to delineate the scope of protected conduct under Article I, section 27. See ___ Or App at ___ (slip op at 6). How the legislatively defined defenses to the crime of homicide are relevant to the scope of a constitutional guarantee enacted 114 years prior to the adoption of those statutes is not immediately apparent, but, in relying on ORS 161.219, the majority has effectively cabined the scope of the right to self-defense under Article I, section 27, to the narrow, legislatively drawn, grounds set out in that statute--viz., where a person is confronted with a felonious attack, a burglary of a dwelling, or a threat of deadly physical force. See ORS 161.219(1) - (3). Doing so is inconsistent with our obligation to interpret constitutional provisions "in light of the way that wording would have been understood and used by those who created the provision" and then to apply those understandings to modern circumstances. Vannatta v. Keisling, 324 Or 514, 530, 931 P2d 770 (1997). As the historical materials I consider below demonstrate, it is unlikely that the framers of Article I, section 27, would have intended the right to bear arms in "defence of themselves" to be limited only to conduct falling within the limited circumstances set out in ORS 161.219.
8

What is implicit in the majority's opinion, see, e.g., ___ Or App at ___ (slip op at 6), is that there is such a norm. The majority declines to make this assumption explicit, focusing instead on the risk posed by the use of firearms when it writes "[o]f particular relevance to [the ordinance] are provisions governing the use of 'deadly physical force,' because the risk of misusing loaded firearms is presumptively deadly." (Emphasis added.) However, PCC 14A.60.010(A) is silent regarding the use or misuse of firearms-it refers only to possession or carrying of firearms. 16

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firearms overwhelmingly criminalize the use of firearms, the exceptions being laws proscribing possession of arms by persons outside the scope of Article I, section 27,9 the possession of constitutionally unprotected arms,10 and the carrying of concealed weapons, which, as described below, is a mode of carrying that likely falls outside the scope of Article I, section 27.11 To put it bluntly: Our laws reflect a societal consensus that impaired persons are unjustifiable risks to the safety of others when they get behind the wheel. Our statutes do not reflect the same consensus with regard to the possession or carrying of loaded, constitutionally protected firearms by persons not excluded from the scope of Article I, section 27. A possessor of a loaded firearm in a public place in the City of Portland cannot always reasonably anticipate when a loaded firearm is required for self-defense or when the possession of a loaded firearm results in an unjustified risk to others, because the need for the use of a firearm for self-defense is based solely on temporal and generally unexpected circumstances outside the control of the possessor of the firearm. A hypothetical example illustrates the difficultly with the majority's construct. Assume a person desires to hike in a public park that is part of a forest within the city. Concerned
9

See, e.g., ORS 166.270 (criminalizing possession of firearms by convicted felons).

10

See, e.g., ORS 166.272 (criminalizing possession of machine guns, short-barreled firearms, and silencers); see also Oregon State Shooting Assn. v. Multnomah County, 122 Or App 540, 544-49, 858 P2d 1315 (1993), rev den, 319 Or 273 (1994) (describing types of constitutionally unprotected arms).
11

See, e.g., ORS 166.240 (unlawful carrying of concealed weapons); ORS 166.250 (unlawful possession of concealed firearms).

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about the report of attacks against hikers in the park, the person determines before leaving his or her residence that a firearm may be required for purposes of self-defense while hiking in the park. The ordinance requires that the person's firearm and the clip or magazine for the firearm be unloaded. The person attempts to comply with the ordinance, waiting to load the magazine or clip and insert a shell in the chamber of the gun until he or she arrives at the trailhead parking lot. The person then loads the gun, but, before the person can proceed into the forest, a group of children unexpectedly arrives at the parking lot.12 Must the person immediately unload the firearm at that point in time because children are present, or may the person reasonably anticipate that a loaded firearm in his or her possession will not become an unjustified risk (by virtue of the person's training in firearms safety, for example) to the safety of others in the parking lot? Assume further that the person with the loaded firearm proceeds into the forest and, coming around a corner on the forest path, encounters a group of children. Must that person unload the firearm until the children have left his or her presence? What if the person, after unloading the firearm, then encounters an attacker around the next corner? The point is that the need to exercise self-defense cannot always be predicted or reasonably anticipated, but, under the majority's interpretation, a person carrying a loaded firearm will have to make just that sort of prediction in order to avoid

12

I assume here, without deciding, that the presence of children suffices to imbue our hypothetical hiker's possession of a loaded firearm with an unjustifiable risk of harm.

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circumstances that a prosecution under the ordinance could consider to constitute an unjustifiable risk of carrying a loaded firearm.13 IV. THE BREADTH OF THE ORDINANCE AS INTERPRETED BY THE CITY VIOLATES ARTICLE I, SECTION 27 A proper constitutional analysis of the ordinance requires the application of some general rules. A conclusion that a law is unconstitutionally overbroad means that the law prohibits conduct that a provision of the constitution protects against such a prohibition. State v. Blocker, 291 Or 255, 261, 630 P2d 824 (1981). To interpret a constitutional provision properly in light of a challenge that it is unconstitutional, a court
13

It is evident from the above hypothetical that the city could not have intended the ordinance to mean what the majority declares it to mean. The majority's interpretation renders the ordinance so indefinite that neither gun possessors nor the city can determine from its terms what conduct is prohibited, and, accordingly, the majority's interpretation has problematical implications regarding constitutional vagueness. As the Supreme Court has explained: "'The terms of a criminal statute must be sufficiently explicit to inform those who are subject to it of what conduct on their part will render them liable to its penalties.' State v. Graves, 299 Or 189, 195, 700 P2d 244 (1985). A 'reasonable degree of certainty' about what conduct falls within the statute's prohibition is required; absolute certainty is not. State v. Cornell/Pinnell, 304 Or 27, 29-30, 741 P2d 501 (1987). In addition to giving fair notice of prohibited conduct, a criminal statute must not be so vague as to allow a judge or jury unbridled discretion to decide what conduct to punish. Id. at 29." State v. Plowman, 314 Or 157, 160-61, 838 P2d 558 (1992), cert den, 508 US 974 (1993). The majority's construction fails the benchmarks set out in Plowman. First, the majority's construction departs from the explicit terms of the ordinance to such an extent that no person--viewing the text of PCC 14A.60.010(A) in isolation--could realistically perceive "what conduct on their part will render them liable to its penalties." Id. Second, as highlighted by the hypothetical, the majority's gloss on the text of PCC 14A.60.010(A) drains that ordinance of whatever "reasonable degree of certainty" its text alone might have provided to those subject to it.

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is required to examine the text of the provision, the case law surrounding it, and the historical circumstances that led to its creation. Priest v. Pearce, 314 Or 411, 416, 840 P2d 65 (1992). The goal of the inquiry is to "understand the wording in light of the way that wording would have been understood and used by those who created the provision" and then to apply those understandings to modern circumstances. Vannatta v. Keisling, 324 Or 514, 530, 931 P2d 770 (1997). Finally, in considering the ordinance's constitutionality under Article I, section 27, this court does not have the authority to rewrite the ordinance so as to conform to its public policy expectations and thereby make it constitutional. To do so could violate the Separation of Powers Doctrine that distinguishes between the authority of the legislative branch and the judicial branch of government and could preempt the authority of a legislative body to create law in accordance with its own intentions. Rather, as the Hirsch/Friend court declared: "Before proceeding, we note that we are not unmindful of the controversy surrounding the right to bear arms and seemingly practical wisdom of prohibiting convicted felons from possessing firearms. However, as this court previously has explained, 'we are not free to interpret the constitution

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