FILED: June 23, 2005

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

MARK LEE HIRSCH,

Petitioner on Review.

STATE OF OREGON,

Respondent on Review,

LAWRENCE AARON FRIEND,

Petitioner on Review.

On review from the Court of Appeals.*

Argued and submitted May 6, 2003.

Susan F. Drake, Deputy Public Defender, Salem, argued the cause for petitioners on review. With her on the briefs were Walter J. Ledesma, Deputy Public Defender, and David E. Groom, Public Defender.

Rolf C. Moan, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before Carson, Chief Justice, and Gillette, Durham, Riggs, De Muniz, and Balmer, Justices.**

DURHAM, J.

The decisions of the Court of Appeals and the judgments of the circuit court are affirmed.

* Appeals from Douglas County Circuit Court, William L. Lasswell, Judge. 177 Or App 441, 34 P3d 1209 (2001); 178 Or App 157, 35 P3d 1105 (2001).

** Kistler, J., did not participate in the consideration or decision of these cases.

DURHAM, J.

In these two criminal cases, consolidated for purposes of review, the trial court convicted each defendant of the crime of felon in possession of a firearm, ORS 166.270(1). (1) Defendants contend that ORS 166.270(1) is facially unconstitutional because that statute infringes on the right to bear arms guaranteed under Article I, section 27, of the Oregon Constitution. (2) The Court of Appeals disagreed with that contention and, in each case, affirmed the trial court's decisions to overrule defendants' demurrers. State v. Friend, 178 Or App 157, 35 P3d 1105 (2001); State v. Hirsch, 177 Or App 441, 34 P3d 1209 (2001). We allowed review and now conclude, as did the Court of Appeals, that ORS 166.270(1) is not unconstitutionally overbroad on its face. Accordingly, we affirm the decisions of the Court of Appeals and the judgments of the trial court.

I. FACTS AND PROCEDURAL BACKGROUND

The facts of each case are undisputed. In November 1999, while on parole for a prior felony conviction, defendant Hirsch brought a .308 caliber Winchester bolt-action rifle into a gun shop to have it bore-sighted. The police arrested him, and the state charged him with the crime of being a felon in possession of a firearm, ORS 166.270(1). Defendant demurred to the indictment on the ground that ORS 166.270(1) violated Article I, section 27. The trial court overruled the demurrer and, after a bench trial, found defendant guilty of the charged offense. Defendant appealed, and the Court of Appeals affirmed. Hirsch, 177 Or App at 449.

In May 1999, Deputy Sheriff Summers stopped defendant Friend and arrested him for driving under the influence of intoxicants. Because the police intended to impound defendant's vehicle, Deputy Baimbridge conducted an inventory search. Baimbridge found a .223 caliber bolt-action rifle and several rounds of live ammunition in the vehicle. Defendant admitted to Summers that he owned the rifle and used it for hunting. Defendant was charged with, among other things, the crime of being a felon in possession of a firearm. Defendant demurred to that charge on the ground that ORS 166.270(1) violated Article I, section 27. The trial court overruled that demurrer and, after a bench trial, found defendant guilty of all charges. Defendant appealed his felon in possession of a firearm conviction, and the Court of Appeals affirmed, citing its decision in Hirsch. Friend, 178 Or App at 157.

In Hirsch, the Court of Appeals examined the history of the right to bear arms and the restrictions on gun ownership in precolonial England and the United States up to the adoption of Article I, section 27, of the Oregon Constitution. The court determined from that history that the drafters of the Oregon Constitution would not have understood the right to bear arms to guarantee an absolute right to the possession of arms. 177 Or App at 445-48. The court also determined that the framers would have "regarded felons as noncitizens, not entitled to the constitutional guarantee of political rights such as the franchise and the right to bear arms." Id. at 449. Thus, the court concluded that Article I, section 27, "does not prohibit the legislature from barring felons from possessing firearms." Id.

We allowed both defendants' petitions for review to determine whether ORS 166.270(1) unconstitutionally infringes on the right to bear arms set out in Article I, section 27, of the Oregon Constitution.

II. NATURE OF CONSTITUTIONAL CHALLENGE AT ISSUE

A. Facial Overbreadth Challenge

At the outset, we clarify the nature of the parties' disputes under the Oregon Constitution. Defendants contend that ORS 166.270(1) is unconstitutionally "overbroad" on its face. Specifically, defendants argue that, although the legislature might have authority under Article I, section 27, to prohibit the possession of firearms as to certain dangerous felons, the legislature is without authority to prohibit possession categorically as to all felons. The state responds that, because defendants raised only facial challenges to ORS 166.270(1), they must establish that that statute is unconstitutional in all its applications. In the state's view, any such effort in that regard fails, in light of defendants' apparent concession that the legislature permissibly may limit arms possession as to certain dangerous felons. It follows, the state argues, that defendants fall short of satisfying a prerequisite to their facial challenges (that is, that the statute is unconstitutional in all its applications) and, therefore, that this court should refrain from reaching the merits of defendants' arguments respecting Article I, section 27.

The state is correct that, when bringing certain facial constitutional challenges to a statute, the challenger ordinarily must establish that the statute is unconstitutional in all its applications. See Jensen v. Whitlow, 334 Or 412, 421, 51 P3d 599 (2002); State v. Sutherland, 329 Or 359, 365, 987 P2d 501 (1999) (both stating principle). Where that principle applies, if the challenger is unable to establish facial unconstitutionality in that manner, then the challenger is left to argue only that the statute is unconstitutional as applied to the particular facts at hand. See, e.g., State ex rel Kane v. Goldschmidt, 308 Or 573, 590, 783 P2d 988 (1989) (although state-approved financing agreements did not contravene constitutional debt limitations on their face, future, unpredictable circumstances could render agreements in violation of those limitations); Hunter v. State of Oregon, 306 Or 529, 533-34, 761 P2d 502 (1988) (although unavailability of post-conviction relief to persons convicted of municipal ordinance violations did not in itself contravene equal privilege and immunities protections, future unequal application of ordinances to certain classes could implicate those protections). (3)

However, defendants here do not assert that ORS 166.270(1) is unconstitutional on its face because it violates Article I, section 27, in all its applications. Rather, they particularly argue that, on its face, that statute is unconstitutionally overbroad. The term "overbreadth" connotes a particular type of facial constitutional challenge in which the challenger contends that, although a statute constitutionally could apply in some circumstances, it impermissibly, and necessarily, impinges on a constitutional guarantee in other circumstances by prohibiting conduct that is constitutionally protected. State v. Robertson, 293 Or 402, 410, 649 P2d 569 (1982); State v. Blocker, 291 Or 255, 261, 630 P2d 824 (1981). Unlike 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. See Blocker, 291 Or at 261 ("[T]o the extent that an overbroad law forbids what may not constitutionally be forbidden, it is invalid as such without regard to the facts in the individual case.").

In short, a challenger appropriately raises a claim of overbreadth whenever a legislative enactment, in certain circumstances, purportedly contravenes a constitutional provision that delineates protected conduct. To illustrate, this court on many occasions has addressed overbreadth challenges involving Article I, section 8, of the Oregon Constitution, which delineates constitutionally protected conduct by guaranteeing the right to free expression of opinion and the right to speak, write, or print freely on any subject whatever. See, e.g., City of Hillsboro v. Purcell, 306 Or 547, 556, 761 P2d 510 (1988); State v. Ray, 302 Or 595, 733 P2d 28 (1987) (both agreeing with claims asserting overbreadth under Article I, section 8). More recently, this court also addressed an overbreadth challenge invoking both Article I, section 8, and Article I, section 26, which delineates constitutionally protected conduct by guaranteeing the right to peaceable assembly. State v. Ausmus, 336 Or 493, 85 P3d 864 (2004). In all the foregoing cases, the court concluded that the statutes at issue impinged on the rights guaranteed under Article I, sections 8 and 26, in certain circumstances, even though they did not necessarily do so in all circumstances. See Ausmus, 336 Or at 507; Purcell, 306 Or at 555-56; Ray, 302 Or at 600-01 (all so concluding). Further, consistently with the nature of overbreadth challenges, the court did not examine the particular facts of the cases before it. Rather, the court concluded in each case that the fact that the statute at issue, on its face, impinged on constitutionally protected conduct in certain circumstances compelled invalidation of the statute.

Like Article I, section 8, and Article I, section 26, Article I, section 27, delineates constitutionally protected conduct, by guaranteeing the right of the people to bear arms for the defense of themselves and the state. Consequently, a claim of overbreadth is appropriate when a challenger contends that, in certain circumstances, a statute impinges on that right. Indeed, this court recognized as much in Blocker, 291 Or at 261-62 (discussed further below), when it concluded that a statute that prohibited possession of certain types of weapons "reached beyond permissible limits to impinge on a constitutionally protected right." Id. at 261. Likewise, defendants here appropriately ground their challenges in the overbreadth doctrine, because they argue that ORS 166.270(1) unconstitutionally impinges on the right to bear arms in certain circumstances, even though that statute arguably could apply in a constitutional manner in other circumstances (that is, as to certain dangerous felons).

We clarify one further aspect of an overbreadth challenge that bears on our analysis set out below. As this court has noted before, courts may be able in some circumstances to resolve overbreadth challenges through statutory interpretation. That is, the court ultimately may determine that the legislature did not intend the statute at issue to operate with the breadth that the challenger attributes to it. See Robertson, 293 Or at 412 (explaining that, in some circumstances, court may save overbroad law through narrowing construction that is fully consistent with legislature's intent); see also State v. Rangel, 328 Or 294, 304-06, 997 P2d 379 (1999) (applying principle to criminal stalking statute in context of facial overbreadth challenge). However, for purposes of the issue before us here, the text of ORS 166.270(1) offers no opportunity for a narrowing judicial construction: it prohibits all persons convicted of any felony under state or federal law from possessing firearms in all circumstances. (4)

B. Burden of Persuasion

One further preliminary matter requires mention here. The state asserts that, in bringing their facial challenges to ORS 166.270(1), defendants bear the burden of proving that that statute prohibits conduct that Article I, section 27, protects. We disagree. As this court has explained, "an ambiguity in the constitution or in a statute does not, by itself, create an issue of fact, let alone one that must be resolved by the presentation of evidence." Ecumenical Ministries v. Oregon State Lottery Commission, 318 Or 551, 558, 871 P2d 106 (1994). Rather, the court's "'sole duty * * * is to resolve the dispute in terms of the applicability of * * * the constitutional provision[]'" that defendants invoke, that is, Article I, section 27. Id. at 559 (quoting Monaghan v. School District No. 1, 211 Or 360, 363, 315 P2d 797 (1957) (first ellipsis in Ecumenical Ministries)). We proceed to that task now.

III. SCOPE OF THE RIGHT TO BEAR ARMS
UNDER ARTICLE I, SECTION 27

A. Preliminary Discussion

ORS 166.270(1) operates to prohibit "[a]ny person who has been convicted of a felony" under state or federal law from possessing "any firearm." Defendants assert that that prohibition renders ORS 166.270(1) unconstitutionally overbroad on its face because Article I, section 27, guarantees the right of any person to possess a firearm without regard to whether that person has been convicted of a felony.

Our task, then, is to determine whether Article I, section 27, protects the possession of a firearm by a person who has been convicted of a felony. To do so, we must discern the intent of the drafters of Article I, section 27, and the people who adopted it. The goal of that inquiry is "to understand the wording in the light of the way that wording would have been understood and used by those who created the provision," Vannatta v. Keisling, 324 Or 514, 530, 931 P2d 770 (1997), and to "apply faithfully the principles embodied in the Oregon Constitution to modern circumstances as those circumstances arise," State v. Rogers, 330 Or 282, 297, 4 P3d 1261 (2000). Our analysis consists of an examination of the text of the constitutional provision, the case law surrounding it, and the historical circumstances that led to its creation. Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992).

Before proceeding, we note that we are not unmindful of the controversy surrounding the right to bear arms and the 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 in any way that might seem to us to be sound public policy." Stranahan v. Fred Meyer, Inc., 331 Or 38, 66 n 19, 11 P3d 228 (2000). Rather, our task "is to respect the principles given the status of constitutional guarantees and limitations by the drafters[.]" State v. Kessler, 289 Or 359, 362, 614 P2d 94 (1980).

B. Construction of Article I, Section 27

1. Text

Article I, section 27, has provided since statehood that "[t]he people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]" In the context of these cases, the specific wording of Article I, section 27, raises two questions of construction: (1) whether the legislature constitutionally may exclude certain groups of persons from the constitutional guarantee; and (2) whether the guarantee extends to all, or to only some, purposes of arms possession.

We answer the latter question quickly. Article I, section 27, clearly guarantees the right to bear arms for purposes of defense -- specifically, "for the defence of [the people] themselves, and the State." See Kessler, 289 Or at 371 (clarifying that the "defence of themselves" wording includes right "to possess certain arms for defense of person and property" (emphasis added)). Although the parties do not focus their arguments on that part of the constitutional provision, the "defence" wording nonetheless is significant, because it serves to limit the scope of the constitutionally protected conduct at issue in these cases. Specifically, Article I, section 27, precludes the legislature from infringing on the people's right to bear arms for purposes of defense, but not for purposes other than defense. It follows that Article I, section 27, does not preclude the legislature from prohibiting persons convicted of felonies -- or any other persons -- from owning or possessing firearms for other than defensive purposes.

We turn, then, to the central textual issue -- that is, whether the phrase "[t]he people" set out in Article I, section 27, excludes felons. Defendants argue simply that the drafters' use of the broad phrase "[t]he people" demonstrates that Article I, section 27, guarantees the right to bear arms to all people, without exception. The state advances two arguments in response. First, the state argues that, by using the collective wording "[t]he people," instead of the more individual word "person," the drafters intended the protection set out in Article I, section 27, to provide a communal right of defense through the bearing of arms, but not an individual right of defense. Alternatively, the state contends that, even if Article I, section 27, guarantees an individual right respecting the bearing of arms, the drafters of that provision nevertheless did not intend to deprive the legislature of the authority to regulate that right, including the authority to restrict certain groups of persons from exercising the right.

As to the state's "communal defense" argument, this court previously has resolved that question contrary to the state's position here. In Kessler, 289 Or at 365-68, 371, as noted above and discussed in greater detail below, the court reviewed the history of Article I, section 27, and concluded that, in addition to providing for the defense of the community as a whole, that provision also guaranteed individuals the right to defend themselves using constitutionally protected arms. See id. at 371 (Article I, section 27, includes right to possess certain arms for personal defensive purposes). As a contextual matter, we note that another provision in the Oregon Bill of Rights -- Article I, section 9 -- similarly protects individual rights through use of the words "the people." See Or Const, Art I, ;st 9 ("[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure" (emphasis added)); State v. Campbell, 306 Or 157, 166, 759 P2d 1040 (1988) ("the people" wording in Article I, section 9, protects individual privacy rights). In sum, we adhere to the reading of Article I, section 27, set out in Kessler and therefore reject the state's argument that the drafters' use of the words "[t]he people" limited the extent of the arms guarantee to defense of the community as a whole. (5)

We turn to the state's argument that, notwithstanding the drafters' use of the broad phrase "[t]he people" -- which, on its face, appears to extend to all people -- the drafters nonetheless did not intend to deprive the legislature of the authority to regulate the bearing of arms, specifically the authority to exclude certain groups of persons (such as felons) from that constitutional guarantee. The text of Article I, section 27, itself is silent as to any intent respecting such authority. However, other constitutional provisions are helpful to our textual analysis, as discussed below. See generally State v. Cavan, 337 Or 433, 441, 98 P3d 381 (2004) (when construing text of original constitutional provision, court must consider relevant context of that provision).

We begin with Article II, section 3 (1859), which, at the time of statehood, provided:

"No idiot, or insane person, shall be entitled to the privileges of an elector, and the privilege of an elector shall be forfeited by a conviction of any crime which is punishable by imprisonment in the penitentiary."

(Emphasis added.) (6) By specifically removing persons convicted of crimes punished by imprisonment in the penitentiary, Article II, section 3 (1859), reflected an express intent on the drafters' part to exclude that group of persons from the exercise of a constitutional right -- specifically, the right to vote "[i]n all elections, not otherwise provided for, by [the Oregon] Constitution[.]" Or Const, Art II, ;st 2 (1859). By contrast, Article I, section 27, contains no such expression of intent to exclude those convicted of a crime punishable by imprisonment in the penitentiary -- the very group of persons at issue in these cases. See generally General Laws of Oregon, Crim Proc Code, ch I, ;st 3, p 441 (Deady 1845-1864) (crimes carrying penalty of imprisonment in penitentiary all deemed to be felonies). Although the state argues that the wording of Article II, section 3 (1859), supports its contention that the drafters generally did not view felons as equal to other citizens respecting certain constitutional protections, the wording of that provision actually cuts against the state's argument here: The drafters clearly knew how to exclude persons convicted of certain felonies from the exercise of certain constitutional rights and yet chose not to exclude those persons expressly from the right to bear arms. See generally Jory v. Martin, 153 Or 278, 288, 56 P2d 1193 (1936) (absence of wording that limited legislative action in provision at issue, in light of presence of limiting wording in other constitutional provisions, "indicates most strongly that it was not the intention of [the] framers" to limit legislature's authority respecting provision at issue). (7)

Another provision of the original constitution further supports a more expansive reading of Article I, section 27. Original Article I, section 31 (1859), provided:

"White foreigners who are, or may hereafter become residents of this State[,] shall enjoy the same rights in respect to the possession, enjoyment, and descent of property as native born citizens. And the Legislative Assembly shall have power to restrain, and regulate the immigration to this State of persons not qualified to become Citizens of the United States."

(Emphasis added.) (8) As to the immigration of certain persons to Oregon, then, the drafters specifically chose to grant the legislature express constitutional authority to "restrain[] and regulate" that practice. We further note that the drafters did not derive Article I, section 31 (1859), from any other state constitutional provision existing at the time. Rather, the drafters crafted it themselves and specifically added the passage respecting the legislature's regulatory authority during the course of the constitutional convention. See Charles Henry Carey, ed., The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857 317-18, 321, 469 (1926) (setting out suggested amendment and approval of amendment respecting legislative authority to restrain and regulate immigration; noting that no similar or identical provisions appeared in any other state constitution).

Original Article I, section 31 (1859), is significant to our analysis here, because, in that provision, the drafters expressly included the same type of wording that the state asserts in these cases they incorporated implicitly in Article I, section 27. As with Article II, section 3 (1859), the drafters' choice of wording in Article I, section 31 (1859), demonstrates that the drafters knew how to reserve regulatory authority in the legislature within the context of the Oregon Bill of Rights but made a different choice when they drafted and approved Article I, section 27.

In sum, the text of Article I, section 27, expressly delineates a limit respecting the intended purpose of the bearing of arms (i.e., for defensive purposes); however, it does not delineate any limit -- or express any intention respecting legislative authority to delineate such a limit -- as to the groups of persons falling within the constitutional guarantee. Other provisions of the Oregon Constitution of 1859, however, demonstrate that the drafters knew how to exclude felons expressly from the exercise of another constitutional right and also knew how to reserve express regulatory authority in the legislature respecting certain activity referred to within the Bill of Rights.

2. Case Law

This court has discussed the scope of the guarantee set out in Article I, section 27, in a number of cases, which we discuss below.

In two cases, this court appears to have adopted a reading of Article I, section 27, that is consistent with the state's reading of that provision in the cases before us now. In State v. Robinson, 217 Or 612, 343 P2d 886 (1959), this court rejected a constitutional challenge under Article I, section 27, to an earlier version of ORS 166.270, which, at the time, prohibited unnaturalized foreign-born persons and certain convicted felons from owning or possessing two general categories of weapons: firearms capable of concealment on the person, including pistols and revolvers; and machine guns. (9) Citing a case from the Indiana Supreme Court, (10) the court summarily concluded that Article I, section 27,

"permits reasonable regulation of the right to bear arms and that accordingly legislation prohibiting the carrying of concealed weapons is valid. * * * It is our belief that ORS 166.270, at least so far as ex-convicts are concerned, is valid legislation."

217 Or at 619 (emphasis added). In the course of reaching that decision, the court also cited "the police power of the state" as an appropriate basis for the statutory restriction:

"It is a well-recognized function of the legislature in the exercise of the police power to restrain dangerous practices and to regulate the carrying and use of firearms and other weapons in the interest of public safety."

Id. at 618 (internal quotation marks omitted).

In State v. Cartwright, 246 Or 120, 418 P2d 822 (1966), cert den, 386 US 937 (1967), this court again upheld an earlier version of ORS 166.270, (11) in the context of an as-applied constitutional challenge to that statute. Citing Robinson, the court first stated that,

"notwithstanding Article I, [s]ection 27, the state, in the exercise of the police power, may provide that the ownership or possession of certain firearms by an exconvict is a public offense; for the [l]egislature might reasonably conclude that, in the generality of cases, a person who had demonstrated his disregard for the laws of society by committing a felony against the person or property of another would be more likely than others to resort to force and violence and would be a greater threat to the public safety when in possession of a concealable firearm than when not."

Cartwright, 246 Or at 135. The court next agreed with the defendant that "there may be innocent possession of a concealable firearm by an exconvict," id., and suggested that the legislature might not have authority to criminalize arms possession in certain defensive circumstances, citing Hutchinson v. Rosetti, 24 Misc 2d 949, 205 NYS 2d 526 (1960) (holding ordinance that prohibited discharge of firearms within city limits inapplicable to defendant who fired into ceiling to scare off would-be assailants). However, the court ultimately concluded that the version of ORS 166.270 at issue was not unconstitutional as applied in the defendant's circumstances because the defendant had not been "faced with a sudden onslaught and immediate threat of great bodily harm or possible death." Id. at 136. The court explained that the defendant -- who purportedly had possessed a pistol in his home to defend against a forewarned robbery attempt -- instead could have utilized methods of defense that the statute did not proscribe, such as using a rifle or a shotgun, or notifying the police. Id.

As noted, in both Robinson and Cartwright, 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. Dennehy v. Dept. of Rev., 305 Or 595, 604 n 3, 756 P2d 13 (1988); see 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.

It follows that this court's ultimate conclusions in Robinson and Cartwright, respecting the legislature's authority to prohibit certain groups of persons (there, certain felons) from possessing certain types of firearms, erroneously relied on the notion of "police power" as a source of constitutional authority for legislative enactments. In that respect, then, those cases were wrongly analyzed. However, the court's decision in Cartwright as to the scope of the guarantee set out under Article I, section 27, is helpful to the extent that it confirms that the guarantee is limited to purposes of defense. The court in Cartwright further suggested -- although it came far from holding -- that the legislature might not have authority to criminalize possession of arms in certain defensive circumstances. (12)

This court next examined Article I, section 27, in Kessler, 289 Or 359. The defendant in that case challenged his conviction under former ORS 166.510(1) (1979), repealed by Or Laws 1985, chapter 709, section 4, which, among other things, prohibited any person from possessing a "slugging weapon." 289 Or at 361. (13) The state had charged and convicted the defendant under that statute after the police had found two billy clubs in his home.

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 post-Revolutionary War era. Id. 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 "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 ordnance 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 371, 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. (14)

In Blocker, 291 Or 255, this court addressed a defendant's challenge to the same statute at issue in Kessler, involving a conviction for possession outside the home of a weapon qualifying as a billy club. (15) The court repeated its analysis from Kessler regarding the premise that Article I, section 27, guaranteed the right of a person "to bear arms for defense of self" and noted that the wording of Article I, section 27, contained no limit or qualification respecting the location of the weapon at issue. Id. at 258-59. The court further noted, citing Kessler, that legislation that restricts the manner of possession or use of certain weapons constitutionally may be permissible under Article I, section 27. (16) Id. at 259. However, the court clarified that Article I, section 27, prohibited the legislature from enacting "a total proscription of the mere possession" of "arms" that Article I, section 27, protects. Id. at 260. The court concluded that, as in Kessler, the statute at issue ran afoul of Article I, section 27, for that reason. Id.

As noted earlier in this opinion, the court in Blocker then clarified the nature of the defendant's particular constitutional challenge, in which he had argued that the statute at issue was "vague and overbroad." Id. (internal quotation marks omitted). After explaining the difference between the vagueness and overbreadth doctrines, the court stated:

"[D]efendant's attack on [former] ORS 166.510 [(1979)] as 'overbroad' impliedly asserted that [the statute] reached beyond permissible limits to impinge on a constitutionally protected right. This could only be the right to bear arms, although its source was not identified, as it should have been. * * *

"[W]e conclude that it is proper for us to consider defendant's 'overbreadth' attack to mean that the statute swept so broadly as to infringe rights that it could not reach, which in this setting means the right to possess arms guaranteed by [Article I, section] 27."

Blocker, 291 Or at 261-62. (17)

Finally, in State v. Delgado, 298 Or 395, 692 P2d 610 (1984), this court again addressed a constitutional challenge to former ORS 166.510(1) (1983), repealed by Or Laws 1985, chapter 709, section 4. (18) That case concerned an overbreadth challenge involving the possession of a switch-blade knife -- which the defendant purportedly had carried "for protection" -- discovered during a pat-down search. 298 Or at 397-98. The court noted at the outset that, in the context of an overbreadth challenge such as the one at issue before it, the court "[o]rdinarily * * * would have no reason to go beyond the facts described in the accusatory instrument to resolve whether error was committed in overruling defendant's demurrer." Id. at 398 n 2. In light of the factual record before it, however, the court chose to note that, in the particular circumstances at hand, "there [was] no evidence to support any possible charge of an illegal intent to use the weapon or an illegal use of the weapon." Id.

Applying Kessler and Blocker, the court in Delgado ultimately concluded that the switch-blade knife in question qualified as an "arm" that Article I, section 27, protected and that the statute that prohibited the mere possession or carrying of a switchblade knife therefore was facially unconstitutional. Id. at 403-04. In so holding, the court again emphasized that "this decision does not mean individuals have an unfettered right to possess or use constitutionally protected arms in any way they please. The legislature may, if it chooses to do so, regulate possession and use." Id. at 403.

In sum, then, this court has held that Article I, section 27, generally precludes the legislature from prohibiting the mere possession of constitutionally protected arms by "any person" but also has noted that the legislature permissibly may regulate the manner of possession and the use of constitutionally protected arms. Further, although the court in Cartwright ultimately rejected the defendant's as-applied challenge, the court intimated in that case, without so holding, that the right to bear arms may extend to certain defensive situations, even in the case of possession by a felon. Finally, the court's holdings in Robinson and Cartwright suggest that the legislature permissibly may prohibit the mere possession of a constitutionally protected weapon based on one's status as a felon, although this court has abandoned the "police power" rationale underlying those cases.

3. Historical Circumstances

a. Oregon Constitutional Debate, Indiana Constitutional Debate, and Other State Constitutional Provisions

As to the adoption of Article I, section 27, itself, the historical evidence of the drafters' intent -- or of the people's intent in adopting the Oregon Constitution of 1859 -- is limited. There are no reported debates on that provision from Oregon's constitutional convention, and the convention delegates adopted it as the drafters originally proposed it. Claudia Burton and Andrew Grade, A Legislative History of the Oregon Constitution of 1857 -- Part I (Articles I & II), 37 Willamette L Rev 469, 545-46 (2001).

As this court explained in Kessler, 289 Or at 363, the drafters of the Oregon Constitution derived Article I, section 27, almost verbatim from Article I, sections 32 and 33, of the Indiana Constitution of 1851. (19) W.C. Palmer, The Sources of the Oregon Constitution, 5 Or L Rev 200, 202 (1926). The convention debate respecting the adoption of the Indiana Constitution of 1851 sheds some light on the question whether or not the wording that the people of Oregon eventually adopted as Article I, section 27, implicitly deprived the legislature of the authority to regulate the bearing of arms. See generally Armatta v. Kitzhaber, 327 Or 250, 265, 959 P2d 49 (1998) (although not as helpful as history or case law revealing the intent of framers of Oregon Constitution, information demonstrating intent of framers of Indiana Constitution of 1851 can be instructive when interpreting Oregon constitutional provision patterned after Indiana Constitution).

By way of background, Article I, section 20, of the Indiana Constitution of 1816 contained an arms provision that is virtually identical to Article I, section 27, of the Oregon Constitution. (20) In 1833, the Indiana Supreme Court held that it was permissible under that 1816 provision for the state legislature to prohibit the wearing or carrying of concealed weapons. State v. Mitchell, 3 Blackf 229 (Ind 1833).

At the 1850 Indiana constitutional convention, a standing committee proposed revised wording for that state's arms provision; as originally introduced, the revised guarantee would have provided that "[n]o law shall restrict the right of the people to bear arms, whether in defence of themselves or of the State." Journal of the Convention of the People of the State of Indiana to Amend the Constitution 188 (Ind Hist Bureau 1936). After a second reading, a delegate asked whether the proposed wording was intended to permit or prohibit the wearing of concealed weapons. 2 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana 1850 1385 (1850). Another delegate responded that, if the drafters wished to reserve such power in the legislature, then they must revise the original wording of Article I, section 20, of the 1816 constitution; (21) "For if it were declared by Constitutional provision that the people should have the right to bear arms, no law of the Legislature could take away that right." Id. Suggested amendments then were offered and rejected, to the following effect: (1) replacing the words "[n]o law shall restrict the right of the people" with "no law shall deprive the people of the right"; (2) inserting the words "in an open and unconcealed manner" respecting the bearing of arms; and (3) striking all words after "arms" (that is, all "defence" references). Id.

When the provision again came up for consideration, a delegate moved that it be amended to read as follows: "No law shall be passed restricting the right of the people to carry visible arms." Journal of the Convention of the People of the State of Indiana to Amend the Constitution at 580. As the minutes from the debate report it:

"As the section now stood, [the delegate] thought that it gave a direct license to every desperado and ruffian in the State to carry concealed weapons. He did not think, however, that this was the opinion of the Convention, or that they would restrict the Legislature from passing any law for carrying concealed weapons."

2 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana 1850 at 1391. Another delegate then moved to strike the proposed wording and to insert the wording from Article I, section 20, of the Indiana Constitution of 1816, that is, that "the people have a right to bear arms for the defense of themselves and the State[.]" Id. According to the minutes, that delegate

"was desirous whenever the words of the old Constitution were unobjectionable, and had received judicial construction, to retain them in the old form. He was opposed to the reported section from a fear it might possibly be so construed as to deprive the Legislature of power to prohibit the carrying of concealed weapons. The practice of carrying concealed weapons was one of the most dastardly, odious, and murderous practices that was ever tolerated in the civilized world, and unquestionably there was not a gentleman on that floor who would not feel shocked at the idea that no such prohibition could be passed."

Id. The proposed revision was recommitted for the purpose of replacing the proposed wording with the original 1816 wording. The convention eventually adopted the provision in that form as Article I, section 32. Journal of the Convention of the People of the State of Indiana to Amend the Constitution at 873.

The foregoing debate is helpful to our analysis here, because it demonstrates that the framers of the Indiana Constitution of 1851 -- while generally protective of the right to bear arms -- nonetheless did not intend that the right extend so far as to preclude legislative regulation respecting the carrying of concealed weapons. Stated differently, in rejecting proposed wording that expressly prohibited legislative restriction, and in adopting the wording previously construed in Mitchell, the drafters of the Indiana Constitution of 1851 demonstrably did not intend to deprive the state legislature of the authority to regulate a particular aspect of the right to bear arms that related to public safety. That, in turn, supports this court's conclusion in Kessler that the guarantee set out in Article I, section 27, of the Oregon Constitution was subject to certain regulatory authority on the legislature's part -- at the least, the authority to prohibit the carrying of concealed weapons and, possibly, a broader authority to act to prevent threats to public safety. However, the Indiana history does not conclusively demonstrate whether that regulatory authority extends to exclude certain groups of persons from the constitutional guarantee.

As to the basis of the arms provision of the Indiana Constitutional of 1816, we note that Indiana patterned that provision on the Ohio Constitution of 1802 and the Kentucky Constitution of 1792. (22) Robert Twomley, The Indiana Bill of Rights, 20 Ind LJ 211, 212 (1944). The Ohio and Kentucky provisions, in turn, likely were patterned on the Pennsylvania Constitution of 1790. (23) See Steven H. Steinglass and Gino J. Scarselli, The Ohio State Constitution: A Reference Guide 16 (2004); Robert M. Ireland, The Kentucky State Constitution: A Reference Guide 2 (1999). Pennsylvania, among other states, patterned its expression of the right to bear arms on the English Bill of Rights of 1689, which we discuss further below. See Kessler, 289 Or at 363-65 (discussing origins of right to bear arms).

The Kentucky Constitution of 1792 generated what appears to be the first appellate decision construing a state constitutional arms provision. Article XII of that constitution provided in part that "the right of the citizens to bear arms in defence of themselves and the State shall not be questioned." In 1822, the Kentucky Court of Appeals held that that provision prohibited legislation that criminalized the carrying of concealed weapons, reasoning that such legislation unconstitutionally restrained the citizenry's right to bear arms:

"The right [to bear arms] existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms. Diminish that liberty, therefore, and you necessarily restrain the right; and such is the diminution and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear them when the constitution was adopted. * * * [I]n principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise."

Bliss v. Commonwealth, 2 Litt 90, 92, 12 Ky 90 (1822). The people of Kentucky thereafter amended their constitution expressly to allow prohibitions on the carrying of concealed weapons. See Ky Const of 1850, Art XIII, ;st 25 ("[T]he rights of the citizens to bear arms in defence of themselves and the State shall not be questioned; but the general assembly may pass laws to prevent persons from carrying concealed arms."). (24)

The protective view of the state constitutional arms guarantee expressed in Bliss is rare; to the contrary, most courts addressing challenges to statutory restrictions have concluded that state constitutional arms guarantees generally are subject to reasonable restraints. See generally John Levin, The Right to Bear Arms: The Development of the American Experience, 48 Chi-Kent L Rev, 148, 159 (1971) (so noting). (25) Most significantly for our purposes here, as discussed above, the Indiana Supreme Court construed Article I, section 20, of the Indiana Constitution of 1816 -- which was virtually identical to Article I, section 27, of the Oregon Constitution -- to allow legislative prohibition of the wearing or carrying of concealed weapons. Mitchell, 3 Blackf at 229. (26)

As to the wording of the various state constitutional arms provisions in effect in 1859 -- all of which theoretically were available as resources to the drafters of the Oregon Constitution -- we note that none of those provisions expressly prohibited felons or criminals from possessing arms. Further, none expressly demonstrated any intent respecting legislative authority to regulate the bearing of arms, although one -- the Kentucky Constitution of 1850 -- expressly authorized the general assembly to regulate the carrying of concealed arms. (27) Notwithstanding the absence of express provisions, as discussed above, a number of state courts had construed their constitutional provisions to authorize such restrictions. Most significantly for our purposes here, the Indiana Supreme Court had construed its 1816 arms provision to allow legislative restrictions on the carrying of concealed weapons, notwithstanding the absence of any wording to that effect, and the 1850 Indiana constitutional convention delegates recognized the necessity for such a restriction when they incorporated the 1816 provision into the Indiana Constitution of 1851. 

b. Oregon Territorial Laws and Statutes at Statehood

Few statutes enacted by the Oregon territorial legislature or by the Legislative Assembly soon after statehood in 1859 related to the regulation of firearms. However, some statutes are helpful to our analysis as to whether the guarantee set out in Article I, section 27, carried with it legislative regulatory authority respecting the possession of arms as to certain groups of persons. See generally Lakin v. Senco Products, Inc., 329 Or 62, 71-72, 987 P2d 463 (1999) (examining relevant territorial laws to discern framers' intent respecting particular constitutional provision); Jory, 153 Or at 294-96 (examining legislative actions at time of statehood as demonstrative of drafters' intent respecting legislature's constitutional power to increase salaries of governmental officials).

At the outset, we note that the right to bear arms was incorporated as part of the Organic Law of the Provisional Government, adopted by a vote of the people of Oregon in 1845. Article I, section 5, of the Organic Law provided, in part, that "[n]o person shall be deprived of the right of bearing arms in his own defence[.]" Organic Law of the Provisional Government of Oregon, Art I, ;st 5, p 59-60 (Deady 1845-1864). No statute existing at statehood operated to restrict that right as to any groups of persons, including criminals, minors, vagrants, or the insane. Within the first years after statehood, the only statute that imposed a firearm restriction prohibited selling or giving any firearms or ammunition to any Native Americans without the authority of the United States. General Laws of Oregon, Crim Code, ch XLIX, ;st 654, p 564-65 (Deady 1845-1864) (effective October 1864). (28)

In 1869, 10 years after the adoption of the Oregon Constitution, the legislature enacted a statutory right as to certain firearms for white male citizens, with no exceptions:

"* * * Every white male citizen of this state above the age of sixteen years, shall be entitled to have, hold, and keep, for his own use and defence, the following firearms, to wit: either or any one of the following named guns, and one revolving pistol: a rifle, shotgun (double or single barrel), yager, or musket; the same to be exempt from execution, in all cases, under the laws of Oregon.

"* * * No officer, civil or military, or other person, shall take from or demand of the owner any firearms mentioned in this chapter, except where the services of the owner are also required to keep the peace or defend the state."

General Laws of Oregon, Misc Laws, ch XXII, ;st 1-2, p 613 (Deady & Lane 1843-1872) (effective October 1868). Relatedly, Oregon's early militia laws did not exempt felons or other ex-convicts from voluntary militia service. Laws of Oregon 1855-1856, 7th Regular Session (1855-56), An Act to Organize the Militia, p 55-63 (setting out no exceptions to military service) (effective January 1856); Oregon Laws 1856-1858, 8th Regular Session (1856-57), An Act to Amend an Act Entitled "An Act to Organize the Militia," p 34 (effective December 1856) (exempting from militia service persons "subject to bear arms" under original militia law who are conscientiously opposed to bearing arms); General Laws of Oregon, Misc Laws, ch XXXVI, ;st 4, p 666 (Deady & Lane 1843-1872) (exempting persons exempt under federal law, ministers, various state officers, and clerks in telegraph offices, "and no other persons") (effective October 1862).

Most statutes that pertained to firearms at statehood or shortly thereafter were directed at prohibiting dueling and increasing punishment for crimes that involved the use of dangerous weapons. See, e.g., General Laws of Oregon, Crim Code, ch XLIII, ;st 524, p 530-31 (Deady 1845-1864) (crime to engage in, or to challenge someone to, duel with deadly weapon) (effective October 1864); id. at ;st 529, p 531 (assault and robbery while armed with dangerous weapon) (effective October 1864); id. at ;st 532, p 532 (assault while armed with dangerous weapon) (effective October 1864); Oregon Laws 1857-1858, 9th Regular Session (1858), An Act to prevent the escape of Penitentiary Convicts, p 57-58 (death penalty to be imposed on territorial convict who, with deadly weapon, strikes, wounds, stabs, shoots, or shoots at penitentiary personnel or sheriff) (effective January 1858). The legislature did not act to prohibit the carrying of concealed weapons until 1885 and did not act to limit the possession of firearms by felons -- or the possession of certain arms by any persons -- until 1925. See Laws of Oregon 1885, An Act to prevent Persons from Carrying Concealed Weapons and to provide for the Punishment of the same, ;st;st 1-4, p 33 (enacting original statutory prohibition on carrying of concealed weapons); General Laws of Oregon 1925, ch 260, ;st;st 2, 5 (enacting predecessor statutes to former ORS 166.250 (1953) (ultimately held unconstitutional in Kessler, Blocker, and Delgado) and ORS 166.270).

As to the rights of felons or ex-convicts generally, the following provisions from Chapter LIII of the Criminal Code of 1864 are informative:

"§ 701. A judgment of imprisonment in the penitentiary for any term less than for life, suspends all the civil rights of the person so sentenced, and forfeits all public offices and all private trusts, authority or power during the term or duration of such imprisonment.

"§ 702. A person sentenced to imprisonment in the penitentiary for life, is thereafter deemed civilly dead.

"§ 703. The person of a convict sentenced to imprisonment in the penitentiary is under the protection of the law, and any injury to his person not authorized by law, is punishable in the same manner as if he was not convicted or sentenced.

"* * * * *

"§ 706. No conviction of any person for crime, works any forfeiture of any property, except in cases where the same is expressly provided by law; but in all cases of the commission or attempt to commit a felony, the state has a lien, from the time of such commission or attempt, upon all the property of the defendant, for the purpose of satisfying any judgment which may be given against him for any fine on account thereof, and for the costs and disbursements in the proceedings against him for such crime."

General Laws of Oregon, Criminal Code, ch LIII, ;st;st 701-703, 706, p 575-76 (Deady 1845-1864) (effective October 1864) (emphasis added); see also Laws of Oregon 1858-1859, 10th Regular Session (1858-59), An Act to Amend an Act to create a Lien upon the Property of Criminals in certain cases, p 43-44 (effective January 1859) (setting out enactment creating lien on property of "all persons who shall be convicted of any crime"). Thus, as to the rights of persons convicted of felonies, the first Oregon Criminal Code provided a distinction between those persons sentenced to the penitentiary for life (thereafter deemed "civilly dead") and those sentenced for less than life. As to that latter group -- which presently would include "felons" as at issue here -- imprisonment operated to suspend their civil liberties during the course of that imprisonment but not to terminate those liberties. Notably, that statutory provision made no exception respecting the bearing of arms. Further, although the state automatically had a lien on the property of such persons dating to territorial law, the legislature soon after statehood exempted firearms from execution under the statutory guarantee, set out earlier, that granted all males older than 16 years the right to possess certain firearms. See General Laws of Oregon, Misc Laws, ch XXII, ;st 1-2, p 613 (Deady & Lane 1843-1872) (effective October 1868).

Additional territorial and early statutes, to some extent, addressed other topics relating to felons or ex-convicts. For example, an 1859 law disqualified persons convicted of felonies or misdemeanors involving moral turpitude from serving as jurors. Laws of the State of Oregon, First Extra Session, ;st 1 (1859), p 14. However, the original territorial laws did not prohibit felons or ex-convicts from voting. See An Act to Establish the Territorial Government of Oregon, 9 Stat 323, ;st 5 (1848), reprinted in General Laws of Oregon, p 54 (Deady & Lane 1843-1872). (29) Further, although the territorial and early state legislatures developed a comprehensive statutory framework governing operation of the state penitentiary and the monitoring of inmates, nothing in the statutes at statehood or shortly thereafter created any system for monitoring ex-convicts after their release from the penitentiary. (30) Rather, the only statutory provisions pertaining to the discharge of inmates concerned payment upon discharge. See General Laws of Oregon, Misc Laws, ch XLIV ;st;st 26-27, p 704 (Deady & Lane 1843-1872) ($5 paid to convicts upon discharge, plus $0.50 for each merit mark, subject to forfeiture for damages caused while incarcerated) (effective October 1864).

Finally, we note that, unlike the state of the law in colonial America (discussed below), early Oregon statutes imposed the death penalty for only first-degree murder and certain crimes committed during incarceration in the penitentiary. See Statutes of Oregon 1855, ch III, ;st 1-3, p 208 (death penalty for first-degree murder; imprisonment for second-degree murder); Oregon Laws 1857-1858, 9th Regular Session (1858), An Act to prevent the escape of Penitentiary Convicts, p 57-58 (death penalty to be imposed on territorial convict who, with deadly weapon, strikes, wounds, stabs, shoots, or shoots at penitentiary personnel or sheriff) (effective January 1858); see also generally Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich L Rev 204, 266 (1983) (felons at colonial times punished "with automatic forfeiture of all goods, usually accompanied by death"). As to the types of laws qualifying as felonies, Oregon's first criminal code identified certain crimes as felonies that did not involve any injury to person or property. See, e.g., General Laws of Oregon, Crim Code, ch XLVI, ;st;st 616-18, p 554 (Deady 1845-1864) (felony to bribe Oregon voter or to receive such bribe) (effective 1864); General Laws of Oregon, Crim Code, ch V, ;st 632-35, p 429 (Deady & Lane 1843-1872) (felony to induce or persuade voter from another state to vote in Oregon or to induce Oregon voter to stay away from polls) (effective 1870).

In short, like the Oregon Constitution of 1859, the Oregon statutes in effect both before and shortly after statehood limited the rights of felons in some circumstances (e.g., in suspending civil liberties while imprisoned and in disqualifying felons from serving on juries). However, nothing in those statutes expressly provided for the disarmament of felons after release from the penitentiary. Further, the statutes in effect at that time expressly protected arms possession, both in prohibiting deprivation of the right generally and in guaranteeing the right of all white males over 16 years old to possess certain firearms.

c. English History

As discussed above, Article I, section 27, shares a common historical background with other early state constitutional provisions that is rooted in the English understanding of the right to bear arms. This court discussed that history at length in Kessler, 289 Or at 363. Below, we summarize this court's discussion from Kessler and add further discussion that bears on the issue before us now.

Before the late seventeenth century, bearing arms in England was considered to be a duty, rather than a right. Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 1 (1994). The Crown relied on citizen-soldiers to defend the country and to provide local law enforcement. Thus, the bearing of arms was part of a citizen's civic duty to defend himself and his family, property, neighbors, and community, as well as to serve in the militia. Id. at 2-3. Despite that duty, however, the Crown imposed numerous restrictions on arms ownership, as discussed below.

In the sixteenth century, when firearm use became more common, the Crown "attempted to place guns under special control," Malcolm, To Keep and Bear Arms at 9, by enacting statutes that "limit[ed] ownership and use of two concealable weapons frequently employed in crime, the handgun and the crossbow." Id. (31) The Crown also imposed other restrictions on firearm use, such as restricting shooting near towns and restricting the type of shot that could be used. Id. at 10. In the seventeenth century, Parliament often disarmed Catholics during times of religious tension, because it regarded them as potential subversives. See id. at 11. Similar acts of disarmament occurred during the reign of Charles II. Id. at 92.

In 1685, James II, a Catholic, acceded to the English throne. He established a strong standing army, which he quartered in private homes, Kessler, 289 Or at 363-64, which traditionally had included criminals and societal outcasts, David B. Kopel, It Isn't About Duck Hunting: The British Origins of the Right to Arms, 93 Mich L Rev 1333, 1340-41 (1995) (citing Lois G. Schwoerer, "No Standing Armies!" The Antiarmy Ideology in Seventeenth-Century England 11, 22 (1974)). (32) James II also rigorously sought to disarm his subjects, with a part