Defendant was charged, tried and convicted of possessing a "billy" in violation of ORS 166.510(1):
In the trial court, defendant challenged the constitutionality of the statute. For the manner and content of that challenge, we quote from the state's petition for review in this court:
In their briefs in the Court of Appeals, the parties continued the debate along those lines. After argument and submission of this case in that court, the parties requested that court to hold decision in abeyance, pending decision by this court upon review of the decision of the Court of Appeals in State v. Kessler, 43 Or.App. 303, 602 P.2d 1096 (1979). The request was granted and, following our decision in State v. Kessler, 289 Or. 359, 614 P.2d 94 (1980), the Court of Appeals, in a per curiam opinion, reversed the conviction of the defendant in the case at bar, citing our decision in Kessler. State v. Blocker, 47 Or.App. 376, 614 P.2d 1216 (1980).
We allowed the state's petition for review, ORS 2.520, 290 Or. 1 (1980), to consider the argument asserted in the trial court that the statute is unconstitutional for vagueness and overbreadth and to consider whether the statute, as applied to the facts of this case, violates the right to bear arms guaranteed by Or.Const. Art. I, § 27,
In the light most favorable to the state, the record discloses the following to be the facts. A police officer observed the defendant driving at 45 miles per hour in a 25-mile-per-hour zone and caused defendant to stop the car. On approaching the car, the officer noticed an open, and partially full, beer bottle in the car. On reaching into the car to take possession of the bottle, the officer observed a wooden object on the floor of the car. He recognized the object as a "standard billy club." He asked the defendant for what he used the object, and defendant replied that he used it to hit people who hassled him "up side the head."
At trial the defendant testified that the object was made by him in a high school shop class and was intended to be a lamp base but was never finished. The object is made of soft wood and has been turned on a lathe. It weighs about six ounces and is just under 12 inches in length.
Right to Bear Arms
In State v. Kessler, supra, this court held that a billy is a club and, as a club, is within the meaning of the term "arms for the defence of themselves" in § 27. The ultimate holding of that case on the facts there presented was that a person's right simply to possess a billy in his home was constitutionally protected from statutory infringement. We are now asked whether mere possession of a billy outside the home is protected by § 27.
The text of the constitution is not so limited; the language is not qualified as to place except in the sense that it can have no effect beyond the geographical borders of this state.
The state argues that for this court to hold that possession of a billy in a public place is constitutionally protected would be an unwarranted extension of our holding in Kessler. We do not agree. In Kessler we started from the premise that under § 27 a person has a right to bear arms for defense of self. We said:
289 Or. at 371, 614 P.2d at 100. We then moved from that general proposition to the more particular one that a person had the constitutional right to have a billy in his home for defense.
The Court of Appeals implicitly recognized the breadth of our holding in Kessler when it reversed this defendant's conviction, citing that case as sole reason for its decision. The legislature is forbidden by the constitution from outlawing the mere possession of a billy.
What we held in Kessler, and iterate here, seems to raise concerns on the part of the state which we believe to be groundless. Our decision in neither case goes to the question of permissible legislative regulation of the manner of possession or of regulation of the use of the billy. Indeed, in Kessler, we expressly noted the possibility of that kind of regulation. See, the discussion in 289 Or. at 369-370, 614 P.2d 94, 99.
This state has several such regulatory statutes, with which we are not concerned in this case: ORS 166.220(1) prohibiting possession of a dangerous weapon with intent to use such weapon unlawfully against another; ORS 166.240, prohibiting carrying certain weapons concealed about one's person;
On the other hand, ORS 166.510, with which we are here concerned, is not, nor is it apparently intended to be, a restriction on the manner of possession or use of certain weapons. The statute is written as a total proscription of the mere possession of certain weapons, and that mere possession, insofar as a billy is concerned, is constitutionally protected.
There is but one loose end to consider. Defendant did not cite § 27 in making his constitutional attack on the statute. As noted earlier, he attacked the statute as being "vague" and "overbroad."
Confusion is created by linking the terms "vague" and "overbroad" as if they meant the same kind of constitutional attack, based on the same constitutional premises. They do not. The confusion could be avoided if counsel would heed our repeated admonitions to quote the constitutional clauses on which they base their claims. See Sterling v. Cupp, 290 Or. 611, 613, 625 P.2d 123, 126, n. 1 (1981), for a recent collection of citations to cases in which we have asked that counsel refer to the text of constitutional provisions on which they rely.
"Vagueness" means that a penal law is stated in terms from which those to whom it is addressed — potential defendants, prosecutors, courts, and jurors — cannot discern what conduct the lawmaker did or did not mean to include in the prohibition. Such a failure of communication in penal laws has been held to contravene article I, section 21 of the Oregon Constitution because "they not only allow a court or a jury to define a crime but to do so after the fact," Megdal v. Board of Dental Examiners, 288 Or. 293, 298, 605 P.2d 273 (1980), citing State v. Blair, 287 Or. 519, 601 P.2d 766 (1979); State v. Hodges, 254 Or. 21, 457 P.2d 491 (1969), and to deny due process under the Fourteenth Amendment because they do not give fair notice of what they proscribe. See, sources cited in Megdal, 280 Or. at 299 and note 5, 605 P.2d 273.
It follows that to attack a statute as "overbroad" necessarily implies that it impinges on some constitutionally protected right other than fair notice or "due process." Unlike "vagueness," the vice of "overbreadth" is not necessarily limited to penal laws, and to 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. State v. Blair, supra; cf. Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 225 (1973).
Thus defendant's attack on ORS 166.510 as "overbroad" impliedly asserted that it 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. The question is whether we should reject the attack for failure to cite its source. The fact is that we decided State v. Kessler, supra, after the present case had been tried and appealed. The case was held by the Court of Appeals for our disposition of Kessler. That court then decided it upon a correct interpretation of our decision in Kessler. The state's petition for review asked us to consider whether the Court of Appeals had misapplied our interpretation of § 27.
In these circumstances, we 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 § 27. The Court of Appeals correctly applied that section on the authority of State v. Kessler, supra. Its decision is affirmed.