Chapter § 7.2

• Jurisdiction: Oregon

§ 7.2 DISCUSSION

§ 7.2-1 Oregon Courts' General Approach to Article I, Section 27

The scope of Article I, section 27, of the Oregon Constitution was not analyzed by the Oregon Supreme Court until State v. Kessler, 289 Or 359, 614 P2d 94 (1980), one of the court's earliest decisions to focus on the historical setting of Oregon's constitution to inform its interpretations. Jack L. Landau, Hurrah for Revolution: A Critical Assessment of State Constitutional Interpretation, 79 Or L Rev 793, 823 (2000). In Kessler, the court determined that court decisions interpreting the Second Amendment to the United States Constitution were not particularly helpful because of the different wording of the state and federal provisions. Kessler, 289 Or at 361-62. The court then undertook an extensive analysis of the historical background, which led to a distinctly different interpretation than that given to the Second Amendment. Kessler, 289 Or at 363-70.

Based on the historical setting in which Article I, section 27, was enacted, the court in Kessler reversed the defendant's conviction for possession of a "slugging weapon" (commonly known as a billy club), because Article I, section 27, protects the right to possess a billy club in one's home. Kessler, 289 Or at 372.

Subsequently, in State v. Blocker, 291 Or 255, 259-60, 630 P2d 824 (1981), overruled in part on other grounds by State v. Christian, 354 Or 22, 307 P3d 429 (2013), the Oregon Supreme Court held that the protection of section 27 extends to the right to carry a billy club in public.

§ 7.2-2 "Arms" That Fall within the Scope of Article I, Section 27

In State v. Delgado, 298 Or 395, 692 P2d 610 (1984), the issue was whether possession of a switchblade knife was protected by Article I, section 27, of the Oregon Constitution. The court formulated the "appropriate inquiry" as "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-revolutionary era, or in 1859 when Oregon's constitution was adopted." Delgado, 298 Or at 400-01 (footnote omitted).

After reviewing the history of knives, the court first concluded that knives, including the folding pocketknife, played an important role in American life both as a tool and as a weapon. Delgado, 298 Or at 403. The court went on to address the switchblade knife. Its review of the common definition of switchblade as a pocketknife with a spring-operated opening mechanism, as well as historical evidence that the drafters of the Oregon Constitution "must have been aware" of the technological changes in weaponry occurring at the time, led the court to conclude that a switchblade knife is within the scope of protection provided by Article I, section 27. Delgado, 298 Or at 403. The court went on to state, however, that the scope of protection provided by Article I, section 27, "does not mean individuals have an unfettered right to possess or use constitutionally protected arms in any way they please. . . . The problem here is that ORS 166.510(1) [repealed by Or Laws 1985, ch 709, § 4] absolutely proscribes the mere possession or carrying of such arms...