Mark Tyson
Member
Justices uphold concealed gun ban;
Right to bear arms is not absolute, Ohio court says
Copyright 2003 Plain Dealer Publishing Co.
Plain Dealer (Cleveland, Ohio)
September 25, 2003 Thursday, Final / All
Columbus - Ohioans do not have a constitutional right to carry concealed firearms, the Ohio Supreme Court said yesterday.
Although the 5-2 ruling was a defeat for the gun lobby, both sides of the fractious issue believe it could breathe new life into the legislature's stalled debate over allowing law-abiding citizens to carry concealed handguns.
In its long-awaited ruling, the high court reinforced the right of Ohioans to bear arms for defense and security, but it also said that fundamental right can be restricted.
The ruling overturns two lower court decisions from Hamilton County in which police were ordered to stop arresting people for carrying concealed weapons.
The Supreme Court delayed enforcement of that order while it decided the matter.
In an eight-page decision written by Justice Paul Pfeifer, the majority said that the right to bear arms is not absolute. Seizing on historical precedent, Pfeifer pointed out that the General Assembly banned concealed weapons just eight years after the 1851 enactment of Ohio's revised Constitution, which ratified the right to bear arms.
Records from two subsequent constitutional conventions reflected no further debate on concealed weapons. In 1920, the Supreme Court found the law to be a "proper exercise of the police power of the state," Pfeifer wrote.
"The General Assembly has determined that prohibiting the carrying of concealed weapons helps maintain an orderly and safe society," Pfeifer wrote.
"We conclude that that goal and the means used to attain it are reasonable," Pfeifer wrote.
A bill being considered by the legislature, however, would reverse the ban.
The majority also rejected arguments that the law banning concealed guns is vague in its definition of a so-called affirmative defense - a provision that allows people to prove they need a concealed weapon for self-defense. That legal defense can be used only after a person is arrested and charged with carrying concealed firearms.
Joining Pfeifer were Chief Justice Thomas Moyer, Justices Alice Robie Resnick and Francis Sweeney and Judge Richard Knepper, of the 6th Ohio District Court of Appeals, sitting for former Justice Deborah Cook.
Justices Maureen O'Connor and Evelyn Lundberg Stratton dissented.
O'Connor, in a written opinion, said that the law's affirmative defense provision does not justify someone's arrest for a concealed weapon.
"This creates an unavoidable chilling effect on the free exercise of the right to bear arms for defense and security," O'Connor said. "This is as offensive as a statute allowing the arrest of anyone who speaks in public, but permitting the speaker to prove at trial that the speech was constitutionally protected."
Observers on both sides of the issue saw in the decision at least a small victory for those who support gun control.
"In a limited sense it is a victory for some who want restrictions on guns," said Melvyn Durchslag, a constitutional law professor at Case Western Reserve University. "The ruling is a green light to the legislature that it may impose some restrictions on guns."
Yet leaders in the Ohio House and Senate appeared to be locked in the same old stalemate yesterday over efforts to legalize concealed weapons.
The House passed the National Rifle Association's preferred bill in March. The Senate, seeking to avoid Gov. Bob Taft's veto of the House plan, added significant restrictions to the bill and passed it in June. Major law enforcement groups for the first time went neutral on the bill, and Taft said he would sign it.
But the House rejected the Senate's changes, and now the bill is stalled.
House Speaker Larry Householder said the court's ruling "puts the ball back in the legislature's court" and called on Senate President Doug White to appoint a conference committee on the bill.
White, however, punted back to Householder, saying that the House needs to confer with Taft on a version everyone can live with before he'll budge.
White does not intend to appoint conferees unless a compromise is reached that appears "viable," said White spokeswoman Maggie Mitchell.
Taft repeated yesterday that he will only sign a bill that has the support of law enforcement.
The ruling "doesn't change the dynamics of the issue in the legislature," Taft said. "I've made it clear what a bill has to have in it for me to sign it."
The logjam will be broken, predicted National Rifle Association lobbyist John Hohenwarter. He believes White will appoint a conference committee soon.
The murkiness of the concealed-weapons ban is revealed by the disagreements occurring in Ohio courts, including the Supreme Court, Hohenwarter said.
"More than ever, it just reaffirms that the law is unclear and that it's time for the legislature to step in and pass a reasonable measure," Hohenwarter said. The powerful NRA opposes the ban, a position not supported by the court majority, which included two justices who are up for re-election next year, Moyer and Pfeifer.
Other gun issue groups remained at odds over the ruling and what it said about the current law. "This lawsuit was clearly an attempt by gun proponents to get a concealed-weapons law through the courts because Ohioans adamantly reject the idea of allowing hidden and loaded handguns in their communities," said Toby Hoover, executive director of the Ohio Coalition Against Gun Violence.
Ohioans for Concealed Carry, a co-plaintiff in the suit, called the ruling a disappointment.
"The court has contradicted itself by saying that citizens may exercise this fundamental right by carrying openly without concerns for public safety, but that wearing a concealed firearm is somehow unsafe to society as a whole and must be regulated by the legislature," said Chad Baus, the group's spokesman.
The case came from the state's appeal of a ruling by a Hamilton County Common Pleas judge and an appellate court that said Ohio's restrictive law on concealed weapons denies citizens the right to carry arms to protect themselves. The original lawsuit was filed by several gun groups, including the Second Amendment Foundation, and Cincinnati citizens, including private investigator Chuck Klein.
Klein said the Supreme Court ignored many issues raised in the lower courts. He said he will consider filing a claim against the state in federal court for violation of his rights of due process. Because the case is a state constitutional matter, the ruling is not appealable to the U.S. Supreme Court. "What they have done is ignore the rule of law and ruled on the basis of political correctness," Klein said. "They only rubber-stamped old court decisions that didn't address the new issues we brought up."
Plain Dealer Reporter Stephen Ohlemacher contributed to this story.
Right to bear arms is not absolute, Ohio court says
Copyright 2003 Plain Dealer Publishing Co.
Plain Dealer (Cleveland, Ohio)
September 25, 2003 Thursday, Final / All
Columbus - Ohioans do not have a constitutional right to carry concealed firearms, the Ohio Supreme Court said yesterday.
Although the 5-2 ruling was a defeat for the gun lobby, both sides of the fractious issue believe it could breathe new life into the legislature's stalled debate over allowing law-abiding citizens to carry concealed handguns.
In its long-awaited ruling, the high court reinforced the right of Ohioans to bear arms for defense and security, but it also said that fundamental right can be restricted.
The ruling overturns two lower court decisions from Hamilton County in which police were ordered to stop arresting people for carrying concealed weapons.
The Supreme Court delayed enforcement of that order while it decided the matter.
In an eight-page decision written by Justice Paul Pfeifer, the majority said that the right to bear arms is not absolute. Seizing on historical precedent, Pfeifer pointed out that the General Assembly banned concealed weapons just eight years after the 1851 enactment of Ohio's revised Constitution, which ratified the right to bear arms.
Records from two subsequent constitutional conventions reflected no further debate on concealed weapons. In 1920, the Supreme Court found the law to be a "proper exercise of the police power of the state," Pfeifer wrote.
"The General Assembly has determined that prohibiting the carrying of concealed weapons helps maintain an orderly and safe society," Pfeifer wrote.
"We conclude that that goal and the means used to attain it are reasonable," Pfeifer wrote.
A bill being considered by the legislature, however, would reverse the ban.
The majority also rejected arguments that the law banning concealed guns is vague in its definition of a so-called affirmative defense - a provision that allows people to prove they need a concealed weapon for self-defense. That legal defense can be used only after a person is arrested and charged with carrying concealed firearms.
Joining Pfeifer were Chief Justice Thomas Moyer, Justices Alice Robie Resnick and Francis Sweeney and Judge Richard Knepper, of the 6th Ohio District Court of Appeals, sitting for former Justice Deborah Cook.
Justices Maureen O'Connor and Evelyn Lundberg Stratton dissented.
O'Connor, in a written opinion, said that the law's affirmative defense provision does not justify someone's arrest for a concealed weapon.
"This creates an unavoidable chilling effect on the free exercise of the right to bear arms for defense and security," O'Connor said. "This is as offensive as a statute allowing the arrest of anyone who speaks in public, but permitting the speaker to prove at trial that the speech was constitutionally protected."
Observers on both sides of the issue saw in the decision at least a small victory for those who support gun control.
"In a limited sense it is a victory for some who want restrictions on guns," said Melvyn Durchslag, a constitutional law professor at Case Western Reserve University. "The ruling is a green light to the legislature that it may impose some restrictions on guns."
Yet leaders in the Ohio House and Senate appeared to be locked in the same old stalemate yesterday over efforts to legalize concealed weapons.
The House passed the National Rifle Association's preferred bill in March. The Senate, seeking to avoid Gov. Bob Taft's veto of the House plan, added significant restrictions to the bill and passed it in June. Major law enforcement groups for the first time went neutral on the bill, and Taft said he would sign it.
But the House rejected the Senate's changes, and now the bill is stalled.
House Speaker Larry Householder said the court's ruling "puts the ball back in the legislature's court" and called on Senate President Doug White to appoint a conference committee on the bill.
White, however, punted back to Householder, saying that the House needs to confer with Taft on a version everyone can live with before he'll budge.
White does not intend to appoint conferees unless a compromise is reached that appears "viable," said White spokeswoman Maggie Mitchell.
Taft repeated yesterday that he will only sign a bill that has the support of law enforcement.
The ruling "doesn't change the dynamics of the issue in the legislature," Taft said. "I've made it clear what a bill has to have in it for me to sign it."
The logjam will be broken, predicted National Rifle Association lobbyist John Hohenwarter. He believes White will appoint a conference committee soon.
The murkiness of the concealed-weapons ban is revealed by the disagreements occurring in Ohio courts, including the Supreme Court, Hohenwarter said.
"More than ever, it just reaffirms that the law is unclear and that it's time for the legislature to step in and pass a reasonable measure," Hohenwarter said. The powerful NRA opposes the ban, a position not supported by the court majority, which included two justices who are up for re-election next year, Moyer and Pfeifer.
Other gun issue groups remained at odds over the ruling and what it said about the current law. "This lawsuit was clearly an attempt by gun proponents to get a concealed-weapons law through the courts because Ohioans adamantly reject the idea of allowing hidden and loaded handguns in their communities," said Toby Hoover, executive director of the Ohio Coalition Against Gun Violence.
Ohioans for Concealed Carry, a co-plaintiff in the suit, called the ruling a disappointment.
"The court has contradicted itself by saying that citizens may exercise this fundamental right by carrying openly without concerns for public safety, but that wearing a concealed firearm is somehow unsafe to society as a whole and must be regulated by the legislature," said Chad Baus, the group's spokesman.
The case came from the state's appeal of a ruling by a Hamilton County Common Pleas judge and an appellate court that said Ohio's restrictive law on concealed weapons denies citizens the right to carry arms to protect themselves. The original lawsuit was filed by several gun groups, including the Second Amendment Foundation, and Cincinnati citizens, including private investigator Chuck Klein.
Klein said the Supreme Court ignored many issues raised in the lower courts. He said he will consider filing a claim against the state in federal court for violation of his rights of due process. Because the case is a state constitutional matter, the ruling is not appealable to the U.S. Supreme Court. "What they have done is ignore the rule of law and ruled on the basis of political correctness," Klein said. "They only rubber-stamped old court decisions that didn't address the new issues we brought up."
Plain Dealer Reporter Stephen Ohlemacher contributed to this story.