Primer on Preserving As Applied Challenges to Gun Laws

by: Henry Oostrom-Shah • July 30, 2025 • no comments

The United States Supreme Court’s 2022 decision in Bruen remade the legal landscape around guns. N.Y. Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). But nobody can agree about how the Court’s historical interpretation of the Second Amendment affects felon-in-possession laws. But the reigning confusion shouldn’t lead to complacency. Our clients need us to keep challenging these laws.

How can the accused pursue as applied challenges to Oregon’s felon-in-possession law? See ORS 166.270(1)?By “pursue,” I’m indicating that we are likely preserving for appeal rather than prevailing at the trial level. Binding, if wrong, Oregon Court of Appeals caselaw tells us that Bruen doesn’t change the lawfulness of ORS 166.270(1). See State v. Parras, 326 Or. App. 246, 258. And the Oregon Supreme Court has yet to weigh in. After granting review of Parras and hearing oral argument, the Court dismissed the case as improvidently granted. See Parras, rev. denied as improvidently granted, March 4, 2025.

Past caselaw on Article I, Section 27 suggests a path forward. For example, in 2013 our Supreme Court recognized the Legislature’s authority to pass gun laws that “promote public safety as long as the enactment does not unduly frustrate the individual right to bear arms for the purpose of self-defense as guaranteed by Article I, section 27.” State v. Christian, 354 Or. 22, 33 (2013). We might adopt a similar logic. Argue that the Legislature does nothing to promote public safety when criminalizing arms-bearing by a client with the decade-old drug or theft convictions.

But Parras is still precedent. Preserve your state issue and proceed federally.

The federal Constitution foretells a test based on future dangerousness. Use the standard from United States v. Rahimi, 602 U.S. 680, 700 (2024). In that case, SCOTUS upheld that a federal firearms dispossession statute as “constitutional as applied” to a defendant-respondent subject to the Texas equivalent of a FAPA order. Id. at 701. In so finding, the Court made a broader holding that our Nation’s “tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others.” Id. at 700.

The United States Courts of Appeal for the Third and Sixth Circuits have each opened the door to challenges by defendants who can show they’re no longer dangerous. The Third Circuit even granted an as applied challenge where Defendant-Appellant’s only criminal history was for felony food stamp fraud. Range v. Att’y Gen., 124 F.4th 218 (2024). The majority considered five factors:

1) Whether the conviction was classified as a misdemeanor or a felony;

2) Whether the elements of the offense involved violence;

3) The sentence imposed;

4) Whether there was a cross-jurisdictional consensus as to the seriousness of the crime; and

5) The potential for physical harm to others created by the offense

Id. at 223 (cleaned up). The majority read Rahimi narrowly to require disarmament be based on a “finding that the defendant represents a credible threat to physical safety.” Id. at 230.

Similarly, the Sixth Circuit interpreted the Second Amendment to require “individualized dangerousness determinations.” United States v. Williams, 113 F.4th 637, 660 (2024). That decision distinguished those felony convictions that “pose a significant threat of danger” and others that “cause no physical harm to another person or the community.” Id. at 659.

So, what are we attorneys to do? We should tell a positive story about our clients. Look to lawyers who relieve their clients’ firearms prohibitions in ORS 166.274 proceedings. For example, the Court of Appeals in Hertz recently blessed the use of wide-ranging mitigating factors:

1) The length of time since the crime occurred;

2) Thether the petitioner fully completed all probation or parole obligations related to the conviction;

3) Whether the petitioner shows remorse;

4) Any subsequent arrests or convictions;

5) The testimony of others, including the petitioner's family and friends; and

6) The petitioner's reason for seeking restoration of gun rights.

Hertz v. Clackamas Cnty. Sheriff's Off., 337 Or. App. 436, 440–41 (2025).

Show the judge that your client is an individual, not just a conviction record. Judges should explore “each individual’s specific characteristics,” which “necessarily requires considering the individual’s entire criminal record—not just the predicate offense.” Williams, 113 F.4th at 657–58; see also Kanter v. Barr, 919 F.3d 437, 468 (7th Cir.) (Barrett, J., dissenting). Put simply, make a record that mitigates the past conduct.

Keep fighting this issue. We might well win one day. Email me if you want to talk through this: hshah@mpdlaw.com.