Full Opinion (html_with_citations)

No. 892             December 11, 2024                   741

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                  CITY OF PORTLAND,
                   Plaintiff-Respondent,
                             v.
                  JOSHUA A. SOTTILE,
                   Defendant-Appellant.
              Multnomah County Circuit Court
                   21CR60621; A178514

  Angela F. Lucero, Judge.
  Argued and submitted October 10, 2024.
   Peter G. Klym, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
   Denis Vannier argued the cause and filed the brief for
respondent.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
  JOYCE, J.
  Affirmed.
742                                          City of Portland v. Sottile

           JOYCE, J.
         In State v. Christian,
354 Or 22, 29
,
307 P3d 429
 (2013),
the Oregon Supreme Court concluded that Portland City Code
(PCC) 14A.60.010, which prohibits possession of loaded fire-
arms in public, did not run afoul of the Second Amendment’s
protections of the right to bear arms. But Christian preceded
the United States Supreme Court decision in New York State
Rifle & Pistol Assn., Inc. v. Bruen,
597 US 1
,
142 S Ct 2111
,
213 L Ed 2d 387
 (2022), a case that fundamentally altered the
framework that courts must follow to determine whether a
law that regulates firearm possession is constitutional under
the Second Amendment. Under Bruen, a restriction on fire-
arm possession is constitutional only if it is consistent with
the nation’s history of firearm regulation.
Id. at 24
.
         The question presented by this appeal is whether,
given Bruen, PCC 14A.60.010 remains constitutional.
Defendant was charged with violating that ordinance
after police found a loaded firearm in defendant’s pocket.
Defendant demurred to the information, arguing that the
ordinance is unconstitutional on its face under the Second
Amendment.1 The trial court denied the demurrer, and
defendant now appeals. He argues that, under Bruen, the
ordinance is not consistent with historical traditions of
regulating the carrying of loaded firearms in public. We
disagree. As explained below, to prevail on his facial chal-
lenge, defendant must show that the ordinance cannot be
constitutionally applied under any set of facts. However,
as Bruen itself reflects, history is replete with instances of
laws regulating the public carriage of firearms, and the law
restricting defendant’s conduct in this case—carrying a con-
cealed, loaded firearm in public without a concealed hand-
gun license—is well within the nation’s historical traditions
of firearm regulation. Accordingly, we affirm.2
    1
      The Second Amendment is applicable to the states by way of the Fourteenth
Amendment. McDonald v. City of Chicago,
561 US 742, 791
,
130 S Ct 3020
,
177 L Ed 2d 894
 (2010) (holding that the individual rights recognized in District
of Columbia v. Heller,
554 US 570
,
128 S Ct 2783
,
171 L Ed 2d 637
 (2008) are
applicable to the states by virtue of the Due Process Clause of the Fourteenth
Amendment to the United States Constitution).
    2
      Defendant also challenges the denial of his motion to suppress the weapon,
contending that its discovery was the result of an unlawful stop. We have
reviewed the record and the trial court’s factual findings and conclude that the
Cite as
336 Or App 741
 (2024)                                                 743

        PCC 14A.60.010(A) prohibits possession of a loaded
firearm in a public place:
       “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.”
The ordinance has 14 exceptions to the prohibition, includ-
ing an exception for people who are licensed to carry a con-
cealed weapon.3 PCC 14A.60.010(C).

court correctly denied his motion to suppress because he was not seized at the
point in time that officers observed the weapon.
    3
      The exceptions, which also “constitute affirmative defenses to a violation” of
the ordinance, are:
         “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 employ-
    ment 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 individ-
    ual convicted of or arrested for an offense and confined in a place of incarcer-
    ation 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.”
PCC 14A.60.010(C).
744                                City of Portland v. Sottile

         As a threshold matter, we note that defendant’s
challenge to PCC 14A.60.010 is a facial one. The nature
of that challenge circumscribes the scope of our review. A
facial challenge is “the most difficult challenge to mount
successfully,” because it “requires a defendant to establish
that no set of circumstances exists under which” the law
would be valid. United States v. Rahimi,
602 US 680, 693
,
144 S Ct 1889
, 1898,
219 L Ed 2d 351
 (2024) (internal quo-
tation marks omitted). Thus, to prevail, the city here “need
only demonstrate that [the ordinance] is constitutional in
some of its applications.”
Id.
 If the city can establish, for
instance, that the PCC is capable of constitutional applica-
tion to people, like defendant, who carry loaded concealed
firearms without lawful authorization, then defendant’s
facial challenge necessarily fails. See
id.
 (rejecting a facial
challenge to a statute by considering whether “the provision
is constitutional as applied to the facts of [the petitioner’s]
own case”).
         We thus turn to that question. As noted at the out-
set of this opinion, in Christian, the Oregon Supreme Court
considered and rejected an identical challenge to the one
that defendant here presents.
354 Or at 46
. Although the
analytical framework for analyzing Second Amendment
challenges has changed, Christian nonetheless provides a
useful starting point for understanding the operation of the
ordinance. There, the defendant was charged with violating
PCC 14A.60.010 by carrying two loaded concealed hand-
guns.
Id. at 24
. He contended, among other arguments, that
PCC 14A.60.010 was facially unconstitutional under the
Second Amendment.
Id. at 41
.
         In rejecting that argument, the court began by
interpreting the “meaning and reach” of PCC 14A.60.010.
Id. at 26
. In doing so, the court made several observations
about the ordinance. First, the court observed that the ordi-
nance “is not directed in any way to the manner of posses-
sion or use of firearms for self-defense within the home.”
Id. at 29
. That is because, by definition, the ordinance “regu-
lates * * * public places only.”
Id.
 Second, the court noted
that PCC 14A.60.010 “does not prohibit the mere possession
of firearms in public places but specifically regulates only
Cite as
336 Or App 741
 (2024)                             745

the manner of possession, namely, knowingly possessing or
carrying a loaded firearm in public and recklessly failing
to remove all of the ammunition.”
Id.
 Third, “the ordinance
does not prohibit a person from knowingly possessing or car-
rying a loaded firearm in a public place if the ‘person [is]
licensed to carry a concealed handgun.’ ”
Id.
 (quoting PCC
14A.60.010(C)(3)); see also ORS 166.173 (providing that a city
“may adopt ordinances to regulate, restrict or prohibit the
possession of loaded firearms in public places” but that such
ordinances “do not apply to or affect * * * [a] person licensed
to carry a concealed handgun”); ORS 166.291 - 166.292
(setting forth the qualifications and procedures for issuing
a concealed carry license). Related to that third point, the
court observed that there were “early American examples
of restrictions on the rights of individuals to carry or use
personal weapons”; for example, “many courts have upheld
statutes prohibiting the carrying of concealed weapons.”
Christian,
354 Or at 30
 (internal quotation marks omitted).
         With the issue so framed, the court then turned to
the defendant’s argument that the ordinance violated the
Second Amendment. At that time, the leading case guid-
ing the court’s resolution of that question was District of
Columbia v. Heller,
554 US 570
,
128 S Ct 2783
,
171 L Ed 2d 637
 (2008). In Heller, the United States Supreme Court
considered the extent to which the Second Amendment pro-
tects the rights of individuals to possess firearms for self-
protection.
Id. at 573
. After Heller, courts across the coun-
try followed a two-part analysis for determining whether a
law prohibiting possession of a firearm survived a Second
Amendment challenge. At the first step, looking at the text
and history of the Second Amendment, courts upheld reg-
ulations if the state “establish[ed] that the challenged law
regulates activity falling outside the scope of the [Second
Amendment] right as originally understood.” Bruen,
597 US at 18
 (internal quotation marks omitted). If not, courts
then addressed a second question, assessing “how close the
law comes to the core of the Second Amendment right and
the severity of the law’s burden on that right.”
Id.
 (internal
quotation marks omitted). Courts applied strict scrutiny if
the “core” Second Amendment right was burdened—such as
746                                City of Portland v. Sottile

self-defense—and, if not, courts applied intermediate scru-
tiny.
Id. at 18-19
.
         Applying that so-called “means-end” framework in
Christian, the Oregon Supreme Court concluded that the city
had demonstrated that it is important to protect the public
from the risks that come with people possessing loaded fire-
arms in public and—applying an intermediate level scru-
tiny—that PCC 14A.60.010 was substantially related to
that objective and therefore was permissible under Heller.
Christian,
354 Or at 46
. And, as particularly significant
here, in reaching that conclusion, the court noted that rea-
sonable restrictions on possession of firearms, including pro-
hibitions on carrying concealed weapons, have historically
been upheld against constitutional challenge.
Id. at 31-33
.
         Although the city urges us to view Christian as a
complete answer to defendant’s challenge, we decline to
view it as such. That is because Christian preceded the
United States Supreme Court’s landmark decision in Bruen.
And as we recently explained in State v. Parras,
326 Or App 246, 252
,
531 P3d 711
, rev allowed,
372 Or 763
 (2024), Bruen
expressly rejected the means-end framework that courts
followed in the wake of Heller. The question in Bruen was
whether “ordinary, law-abiding [individuals] have a [right]
to carry handguns publicly for their self-defense.”
597 US at 9-10
. The Court observed the pattern, which emerged post-
Heller, of courts using a two-step framework for analyzing
Second Amendment challenges and “decline[d] to adopt
that two-part approach.”
Id. at 17
. The Court concluded
that—although “[s]tep one of the predominant framework is
broadly consistent with Heller, which demands a test rooted
in the Second Amendment’s text, as informed by histo-
ry”—”Heller and McDonald [v. City of Chicago,
561 US 742
,
130 S Ct 3020
,
177 L Ed 2d 894
 (2010),] do not support apply-
ing means-end scrutiny in the Second Amendment context.”
Bruen,
597 US at 19
.
         Bruen replaced that framework with a new one:
“When the Second Amendment’s plain text covers an indi-
vidual’s conduct, the Constitution presumptively protects
that conduct. The government must then justify its regula-
tion by demonstrating that it is consistent with the Nation’s
Cite as
336 Or App 741
 (2024)                              747

historical tradition of firearm regulation.” Id. at 24. The
court explained, “Only then may a court conclude that the
individual’s conduct falls outside the Second Amendment’s
unqualified command.” Id. (internal quotation marks
omitted).
         Because the Court rejected the means-end scrutiny
that the Oregon Supreme Court used in Christian, replac-
ing it with a singular historical focus, we have to consider
whether, post-Bruen, PCC 14A.60.010 is constitutional. That
is not to say that Christian has no utility to our analysis.
Indeed, “[w]hy and how the regulation burdens the right [to
possess firearms] are central” to the question of its consti-
tutionality. Rahimi,
602 US at 681
 (citing Bruen,
597 US at 30
). Thus, how Christian described the operation and func-
tion of PCC 14A.60.010 is still relevant to and informs our
analysis. That is, as the court in Christian described, the
ordinance is not aimed at firearm possession in the home, is
not a total ban on the possession of firearms in public places,
and permits those who have concealed carry licenses to pos-
sess loaded firearms in public.
354 Or at 29
. Further, how
and where people may carry weapons has historically been
subject to regulations.
Id. at 30
.
          With that understanding in mind, we must now
determine whether the ordinance implicates defendant’s
rights under the Second Amendment and, if so, whether its
limits on possessing firearms in public can be applied in a
manner consonant with the national’s history of regulating
firearms. We have little difficulty concluding that, under
step one of the Bruen analysis, i.e., whether the Second
Amendment’s plain text covers an individual’s conduct, the
prohibited conduct falls within the scope of what the Second
Amendment protects. See Rahimi,
602 US at 693
 (assuming
that the defendant was protected by the Second Amendment
even though he had committed “family violence.”). We turn
then to the question of whether PCC 14.60.010’s prohibi-
tion on possessing a loaded firearm in public, subject to
exceptions for, among other things, being licensed to carry
a concealed handgun, is consistent with the nation’s tradi-
tion of firearm regulation. Again, because defendant’s chal-
lenge is a facial one, we need only find that the ordinance is
748                                City of Portland v. Sottile

capable of constitutional application in any scenario. Here,
as in Rahimi, the facts of defendant’s own case—carrying
a loaded firearm in public without a concealed handgun
license—demonstrate a common scenario in which it can be
constitutionally applied.
         Indeed, we need look no further than Bruen (and
Heller before it) to conclude that PCC 14.60.010’s prohibition
on carrying loaded firearms in public, subject to exception
for those licensed to carry concealed handguns, is consis-
tent with historical traditions of firearm regulation. Bruen
is replete with references, both in the majority opinion and
in concurrences, to the lawfulness of restrictions on the
right to carry weapons in public, particularly with respect
to concealed weapons. The specific question before the court
in Bruen was whether New York’s discretionary licensing
regime (also known as a “may-issue regime”) violated the
Second Amendment because it prohibited people from pos-
sessing firearms absent some showing of a special need
for self-defense.
597 US at 11
. In concluding that that law
violated the Second Amendment, Bruen was nevertheless
careful to note that “the right to bear commonly used arms
in public [is] subject to certain reasonable, well-defined
restrictions.”
Id. at 70
; see also Heller,
554 US at 626
 (“Like
most rights,” however, “the right secured by the Second
Amendment is not unlimited.”). And in Bruen, the court
reiterated that “the right to keep and bear arms in public
has traditionally been subject to well-defined restrictions
governing the intent for which one could carry arms, the
manner of carry, or the exceptional circumstances under
which one could not carry arms.”
597 US at 38
. Although
the court noted that states could “not ban public carry alto-
gether,”
id. at 53
, the historical evidence “from antebellum
America does demonstrate that the manner of public carry
was subject to reasonable regulation,”
id. at 59
 (emphasis
added). “Those restrictions, for example, limited the intent
for which one could carry arms, the manner by which one
carried arms, or the exceptional circumstances under which
one could not carry arms, such as before justices of the peace
and other government officials.”
Id. at 70
. The court observed
that history was replete with examples of prohibitions on
carrying concealed weapons and noted that “ ‘the majority
Cite as
336 Or App 741
 (2024)                            749

of the 19th-century courts to consider the question held that
* * * prohibitions on carrying concealed weapons were law-
ful under the Second Amendment or state analogues.’ ”
Id.
at 52 (quoting Heller,
554 US at 626
).
         Justice Alito, in his concurrence, echoed the major-
ity in observing that nothing that the court held in Bruen
“disturbed anything that we said in Heller or McDonald * * *
about restrictions that may be imposed on the possession
or carrying of guns.” Bruen,
597 US at 72
 (Alito, J., con-
curring); see also Heller
554 US at 626
-27 & n 26 (“From
Blackstone through the 19th-century cases, commentators
and courts routinely explained that the right was not a right
to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.”).
         In his concurrence in Bruen, Justice Kavanaugh
compared the “may-issue” licensing regime challenged
in Bruen with “shall-issue licensing regimes” (where law
enforcement officers are required to issue a concealed-li-
cense permit to anyone who meets minimal and certain
statutory requirements).
597 US at 79-80
 (Kavanaugh, J.,
concurring). In Justice Kavanaugh’s view, shall-issue licens-
ing regimes are “constitutionally permissible.”
Id. at 80
. He
explained that “the Court’s decision does not prohibit States
from imposing licensing requirements for carrying [weap-
ons]” and that “the 43 states that employ objective shall-is-
sue licensing regimes for carrying handguns * * * may con-
tinue to do so.”
Id. at 79-80
. Oregon, the majority in Bruen
noted, is one of those states with a shall-issue licensing
regime.
Id.
 at 13 n 1.
         In short, Bruen (and, to some extent, Heller) sup-
ports our conclusion that PCC 14A.060.010 is capable of
constitutional application, at least as to individuals who
carry loaded, concealed firearms without obtaining a con-
cealed handgun license through Oregon’s shall-issue licens-
ing scheme. As Christian observed, PCC 14A.60.010 is not a
complete ban on the possession of loaded firearms in public.
354 Or at 40
. To the contrary, there are many ways in which
possession can be lawful under the ordinance, including if
a person has a concealed carry license.
Id. at 29
. The man-
ner of regulation of carrying firearms under the ordinance,
750                               City of Portland v. Sottile

as it relates to defendant’s conduct, has existed throughout
our nation’s history; limiting a person’s ability to carry a
loaded concealed weapon—particularly where the state has
a shall-issue licensing regime, as Oregon does—is consis-
tent with the nation’s history of regulating firearm posses-
sion. Because PCC 14A.60.010 is capable of constitutional
application, defendant’s facial challenge fails.
        Affirmed.