Background
Christina Marie Lucero was convicted of unlawful possession of a firearm under ORS 166.250. The evidence showed that she carried a concealed firearm in her vehicle, where it was readily accessible, without having a concealed handgun license.
On appeal, Lucero argued that ORS 166.250 violated the Second Amendment both facially and as applied to her. Her appellate as-applied theory was that the statute deprived her of firearm rights based on a stalking protective order entered 19 years earlier, when she was a minor. In the trial court, however, she had argued instead that the statute was unconstitutional as applied because she had satisfied the requirements for a concealed handgun license even though she had not obtained one, and she had objected to any mention of the protective order.
The Court’s Holding
The Oregon Court of Appeals affirmed in a nonprecedential per curiam memorandum opinion. It held that Lucero’s facial challenge was foreclosed by State v. Vinge, 337 Or App 621, 628, 564 P3d 186, rev den, 374 Or 373 (2025), which concluded that Oregon’s prohibition on carrying a concealed firearm without a license is consistent with the nation’s historical tradition of firearm regulation.
The court held that Lucero failed to preserve her appellate as-applied argument because she never presented the protective-order theory to the trial court and actively objected to mention of that order. It also declined plain-error review because Lucero had not identified an obvious Second Amendment violation.
Key Takeaways
- State v. Vinge foreclosed the facial Second Amendment challenge to ORS 166.250.
- An as-applied constitutional theory raised for the first time on appeal was unpreserved, particularly where the defendant had objected below to the facts underlying that theory.
- The alleged error was not plain because no obvious Second Amendment violation was shown.
Why It Matters
The decision reinforces that Oregon defendants must present their specific constitutional theory in the trial court to preserve it for appeal. A different as-applied theory cannot ordinarily be substituted on appeal, and plain-error review requires an error that is obvious.
The memorandum opinion is nonprecedential under ORAP 10.30 and may not be cited except as permitted by ORAP 10.30(1).