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Posted on 04/15/2003 5:33:03 PM PDT by PackerBoy
Concealed carry law argued
High court to hear criticisms from many
By Spencer Hunt
Enquirer Columbus Bureau
COLUMBUS - A lawsuit challenging Ohio's ban on concealed weapons is drawing national scrutiny from many sides of the gun rights debate.
The Ohio Supreme Court - which will hear oral arguments in the Hamilton County case this morning - has received friend-of-the-court briefs from no fewer than 30 groups and individuals. Among them: the National Rifle Association, the Washington-based Violence Prevention Center, Ohio cities and counties, even an interest group for private detectives.
All see the case as a key turning point in the political tussle over guns, not only in Ohio but for the entire country.
"It's a very important case," said Matt Nosanchuk, litigation director for the Violence Prevention Center, which favors tougher gun restrictions. "It strains credibility to think that the Ohio Constitution protects the right of a person to carry a concealed weapon."
Two lower courts already have ruled that state laws that ban the carrying of concealed weapons without "legitimate reasons" are unconstitutional.
Four Hamilton County residents who say they need concealed weapons for self-defense argue they would have to get arrested and charged with a felony to prove their reasons for carrying firearms are legitimate.
In Ohio, even private investigators have been arrested for carrying concealed weapons, according to a legal brief filed by the Ohio Association of Security and Investigation Services.
"At the time they are being arrested they are telling the police officers, yes, they have a legitimate reason," said Michael R. Moran, the group's attorney. "I mean, how does a private investigator not carry a concealed firearm? If you're carrying a six-shooter on your hip, it's going to appear pretty obvious (who you are)."
Attorneys representing the state, Hamilton County and Cincinnati will argue that the high court has already upheld the state ban on concealed weapons - back in 1920.
In that case, the court ruled the ban "does not operate as a prohibition against carrying weapons, but as a regulation of the manner of carrying them. The gist of the offense is concealment."
The high court's ruling also could have a dramatic effect on a bill that would allow Ohioans to carry concealed weapons with a permit. The Republican-dominated General Assembly has tried to pass such a bill for years, only to see each attempt fail under the threatened veto of Gov. Bob Taft.
A Supreme Court ruling declaring the concealed weapons ban unconstitutional would eliminate the need for the bill - but wouldn't stop legislative efforts, said state Rep. Tom Brinkman Jr., R-Mount Lookout, who lent his name to one of the friend-of-the-court briefs.
Instead of winning support from gun rights lobbies, Brinkman predicted that gun control lobbies would fight to pass it - in hopes of putting some restrictions on carrying concealed firearms.
"Certainly there would be a rush for this legislation," he said. "There would be a rush to get a bill out to restrict this."
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You've got that right. A Toledo Democrat sat in for Cook, who is the only jurist of the bunch, excepting Stratton. Unfortunately, Stratton's law and order views prevent her from understanding that law abiding people can carry arms, or at least so it would appear from her questioning today.
I have to say, I was quite disappointed in the plaintiff's attorney's performance.
Regulating hidden weapons
Of all the arguments that can be made about Ohio's concealed carry laws, this is perhaps the most eloquent: they have worked pretty darned well for a long, long time. We hope the Ohio Supreme Court gives that fact ample consideration as it wrestles with the thorny question of whether the law is unconstitutionally vague.
The court heard oral argument Tuesday in a case brought by a group of Cincinnati residents who assert that the existing law denies them what they believe is their right to carry concealed guns without the risk of being arrested.
To be sure, Ohio's Constitution explicitly says "the people have the right to bear arms for their defense and security.''
But since 1859, the General Assembly has had a law of some type on the books that bans carrying concealed guns. law now being challenged makes it illegal to carry or have close at hand any concealed "deadly weapon or dangerous ordnance,'' but it also provides several exceptions. Among them: law enforcement agents; people in a business or occupation that makes them susceptible to attack; weapons kept in the home; unloaded weapons carried in a vehicle for a lawful purpose. Breaking the law is a first-degree misdemeanor, but it bumps up to a fourth-degree felony if the weapon is loaded or ammunition is at hand.
The Cincinnati plaintiffs complain that this statute requires them to run the risk of arrest, and bear the cost and other burdens of mounting a defense in court, to exercise their rights under the exemptions granted in the law. Moreover, their attorneys argue, carrying guns openly can also subject them to arrest. That combination, they say, violates the constitutional guarantee of the right to bear arms.
But -- as several justices noted Tuesday, according to press accounts -- the state clearly does have the right to regulate guns. And the existing law, whatever its warts, has worked reasonably well. People who have a genuine need for hidden weapons generally have been able to carry them without getting hauled into court at every turn, and in the main the law has helped dampen the proliferation of concealed weapons. (We exclude criminals from this analysis; law or no law, they're going to carry guns.)
The State Highway Patrol and the Ohio Association of Chiefs of Police have opposed efforts in the Legislature to enact a concealed carry permitting system, mainly on grounds that it would put officers at greater risk. Ohio House last month, however, approved just such a bill.
The Senate should sit on the measure until the court rules on the Cincinnati case. If, as we hope, the court upholds the existing law, the Senate should shelve the bill. If, however, the high court joins two state appeals courts in declaring the existing concealed carry law unconstitutional, the Senate should take up the House measure with an eye toward strengthening the training required of those seeking permits to carry concealed weapons.
Publication Date: 04-16-2003
In what is widely seen as a landmark case, the justices aired their views while quizzing attorneys for several gun owners challenging a state law that generally bans carrying concealed weapons.
Opponents of the 83-year-old prohibition say the law is unconstitutionally vague and is even applied to persons openly carrying guns. They cited testimony from police officers who said they are confused about when it is legal to carry a handgun in Ohio.
However, Justice Evelyn Lundberg Stratton, a former Franklin County Common Pleas Court judge, said she was aware of many people who carried legal weapons that were not concealed, but none was prosecuted.
"I've known many, many people who have carried a weapon openly in Columbus,'' she said. "I never had one case in all my thousands of cases involving that.''
Cincinnati lawyer William M. Gustavson said the Hamilton County Common Pleas Court heard about thousands of people who were stopped in the Cincinnati area for carrying toy guns, paint guns or BB guns.
"I do think people are concerned about being arrested,'' said Gustavson, who is representing several gun owners.
"If I was here carrying a totally concealed firearm I'm not interfering with anybody's rights. The only thing I'm doing is exercising my constitutional rights.''
But Justice Paul E. Pfeifer said, "It's just socially unacceptable today. . . . If you walk down the street like some cowboy with a couple of pearl-handled six-shooters strapped on, the cops would be getting calls from everyone saying there's some nut walking around.''
Article 1, Section 4 of the Ohio Constitution reads, in part: "The people have the right to bear arms for their defense and security.''
Ohio has had some type of ban on carrying concealed weapons since 1859, and those bans have withstood many tests in court, said state Solicitor Douglas Cole.
Under current law, a conceal-carry arrest can be successfully challenged only if a gun owner proves he or she met one of several "affirmative defenses'' -- such as proving a need for a hidden gun for safety while making bank deposits at night.
Cole argued that two lower court rulings deeming the conceal-carry ban unconstitutional should be overturned.
"Their entire argument turns on the right to carry concealed firearms being a fundamental right. It simply is not,'' he said.
Cole said that those who don't own guns, as well as police who stop suspects, have a "right to exist in a safe and orderly society . . . People act differently if someone is carrying a weapon.''
Justice Maureen O'Connor, a former Summit County prosecutor, said the right to bear arms is not an absolute.
"The police, the state and the legislature have the right . . . to regulate,'' she said. "It's not an unfettered right. We have the right to control possessing of firearms within our society.''
Gustavson argued the right to bear arms should not be restricted any more -- or less -- than the constitutional right to free speech.
"This statute in its entirety is unreasonable,'' he said. "It's a prohibition and not a regulation.''
But Chief Justice Thomas J. Moyer said the right to free speech also has restrictions.
Yesterday's appeal by Hamilton County Sheriff Simon Leis and the state of Ohio was triggered by lower court victories by private investigator Chuck Klein and former pizza delivery driver Patrick Feely.
The Cincinnati men argued that Ohio's ban interfered with their work and safety. Feely, 32, was arrested, strip-searched and prosecuted for carrying a concealed weapon in 1999. He was acquitted after proving that he carried the weapon for defensive purposes.
Klein, a 61-year-old former police officer who was not arrested, said, "You can't have a law that's arbitrary. People want to feel they can protect themselves. It's a constitutional right.''
The state Supreme Court ruled 6-1 in 1920 in favor of a law banning concealed weapons in the case of a steel company employee found with a gun in his pocket.
But in January 2002, Judge Robert Ruehlman of Hamilton County Common Pleas Court said the ban violates the Ohio Constitution. He ruled that the law is so vague gun owners can't tell when they're violating it, and even those legally carrying concealed weapons have to undergo an arrest, search and have the legal burden of proof in justifying their action.
A year ago, the 1st District Court of Appeals unanimously upheld that ruling.
Last month, the House approved House Bill 12, which would allow most adult Ohioans to carry concealed weapons. The bill could go to the Senate this spring.
Gov. Bob Taft, a Republican, has said he won't support the bill if it continues to be opposed by most major law-enforcement groups. Opponents include the State Highway Patrol and Ohio Association of Chiefs of Police.
The Supreme Court is expected to rule by summer.
Toby Hoover, executive director of the Ohio Coalition Against Gun Violence, said the justices raised many good points. "We're all about saving lives. We're concerned about increased access to guns.''.
Information from the Associated Press was used in this story.
Huh? By excluding criminals from the analysis, am I to conclude that proliferation of concealed weapons by non-criminals is a problem? And non-criminals carrying concealed weapons puts LEOs at risk how? Someone help me with the logic here.
A Christian shouldnt hate, A Christian shouldnt hate, A Christian shouldnt hate, A Christian shouldnt hate....
Justice Evelyn Lundberg Stratton was skeptical that people are automatically arrested for carrying an exposed firearm.
"I know of many people carrying weapons in the open in Columbus, and I have never heard of one case of arrest," Stratton said. "Is there something different about Hamilton County and Cincinnati?"
IMHO they are not going to overturn, the concealed weapons ban.
04/15/03
The Ohio Supreme Court turns its attention today to guns and begins to ponder what the framers of the Ohio Constitution really meant when they wrote:
"The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power." Article 1, Section 4 of the Ohio Constitution.
The first 13 words seem as clear to me as any children's nursery rhyme: "The people have the right to bear arms for their defense and security."
Humpty Dumpty sat on a wall. What is the interpretive difficulty or confusion with either of these simple declarative statements?
Article 1 clearly endows Ohio citizens with the constitutional right to carry arms for their personal protection. But that has not been the law of Ohio since Woodrow Wilson sat in the White House. Today almost anyone caught carrying a concealed firearm or openly transporting a gun on their body faces arrest, possible incarceration and the expense of a lawyer, until he can demonstrate a justifiable reason or "affirmative defense" for carrying the weapon.
What is an affirmative defense, you ask? That is tricky and subjective:
"I carry a gun, Mr. Officer, because I'm a merchant who has been beaten up and robbed three times in the last month. I fear for my life."
That probably would constitute an affirmative defense for Mr. Saud of ABC inner-city deli.
But what if Saud's neigh bor who also fears for his safety, late-shift factory worker Leroy Jenkins, gets pulled over and is found to possess a gun? Jenkins should prepare for a strip search and a night in jail.
That is the problem with Ohio law on this matter - in addition to the fact that it seems to violate the framers' intent. It is far too subjective. Any non-law enforcement agent in possession of a gun is considered guilty until proven innocent.
That seems wildly inconsistent with our constitutional and cultural values. But it became the law in Ohio 83 years ago when an all-male court declared that the state could prohibit the carrying of "a pistol, Bowie knife, dirk or other dangerous weapon concealed on or about his person."
The court apparently recognized that its ruling was a blatant assault on the Constitution, and sought to cover itself simply by declaring that the ruling did not infringe upon the Constitution. So there was no constitutional violation simply because the court said there was none.
Now a different court, in a very different time, must decide whether Ohio will remain one of six states that continue to deny residents permits to carry concealed weapons.
This court, composed of four women, a majority, must decide whether the framers believed law-abiding Ohioans were endowed with enough inalienable common sense and personal responsibility to be able to carry weapons if they so desire.
The fact that four women will help decide this issue is only an interesting footnote, given the recent campaign of Second Amendment purists and gun industry spokesmen to convince women that the issues of gun ownership and the freedom to carry are as important to them, from a safety standpoint, as they are to men.
It will prove interesting to see whether this court will ignore two lower-court rulings overturning the state law, as well as the precise wording of the Constitution, and uphold a law that is confusing and unconstitutional.
Throughout the summer, partisans on both sides of this issue will loudly advance their views. Anti-gun people will declare that more guns will lead to more crime. And pro-gun people will argue that more guns will lead to less crime.
Both sides are best ignored. What most concerned Ohioans should question is whether they are constitutionally entitled to carry a concealed weapon for their personal defense, and whether that right is being wrongly denied.
Morris is an associate editor of The Plain Dealer's editorial pages.
Contact Phillip Morris at:
pfmorris@plaind.com, 216-999-4070
Thursday, April 17, 2003
Concealed carry: Bad law
Legislature must act
The legal repartee before the Ohio Supreme Court on Tuesday over the state's concealed carry law revealed the two key points in this contentious issue.
• "The police, the state, the legislature have the right to regulate the right to bear arms," said Justice Maureen O'Connor. "It's not an unfettered right."
• "When you are exercising your constitutional right, you shouldn't be arrested for it," said William Gustavson, the Cincinnati attorney representing four plaintiffs challenging the existing law.
The current law allows people to carry concealed firearms under certain conditions, but the only way to find out if you meet those conditions is to get arrested, go to court and prove it. That is contrary to the basic Constitutional assumption that a person is innocent until proven guilty. Gustavson and his clients are right. The law is bad and the Supreme Court should uphold the rulings of two lower courts and throw it out.
But Justice O'Connor, a former lieutenant governor and the court's newest member, was also right. The right to bear arms is not unfettered. Because of their potential to cause deadly harm, the state has a vested interest in regulating the use of firearms. Age, training, mental capacity, criminal history and a variety of other determinants may be used in granting permits to carry concealed weapons.
What the state does not have the right to do is make gun possession so cumbersome that it essentially prevents people from exercising their right. That's what the current law does. It is time, indeed past time, for the General Assembly to enact a practical law on this issue, setting clear regulations on who can, and cannot, carry concealed guns.
I fully expect the current court to say exactly the same thing. To them we are simply silly little surfs who just don't get it. Maybe they're right about that. Look at what we have to choose from in every election. We have the choice of Marxist and Marxist-lite.
In the court challenge to Ohio's statutory ban on carrying concealed weapons, history and precedent should weigh heavily on the side of the state law.
Article 1, Section 4 of the Ohio Constitution reads in part: "The people have the right to bear arms for their defense and security.'' The concealed-weapons statute, on the other hand, bans the carrying of such weapons except under certain narrow circumstances.
The issue is how to square the two.
The constitution uses words of affirmation, while the law uses words of prohibition. Should the law say people may carry under certain conditions, or should it say people may not carry except under those conditions?
Either way, the Ohio Supreme Court would be following tradition and precedent if it upholds the law and reaffirms that the constitution does not confer an absolute right to carry weapons, that restrictions may be placed on that right.
The Supreme Court heard oral arguments last week in Klein vs. Leis, a test case that pits gun-control groups against Second Amendment activists. The case is up on appeal by Hamilton County Sheriff Simon Leis and the state of Ohio after lower-court victories for plaintiffs Chuck Klein, a private investigator, and Patrick Feely, a former pizza-delivery driver.
Earlier, the Hamilton County Court of Appeals affirmed a trial court's ruling that the statute is unconstitutional. The appeals court held that the law is so vague that gun owners cannot tell when they are violating it and that people who are lawfully carrying concealed weapons are subject to arrest and prosecution before they can clear themselves by raising affirmative defenses that the law allows. One such defense is that the carrier is in an occupation that comes with a reasonable fear of criminal attack. In the lower courts' view, the statute unconstitutionally presumes guilt until a person proves himself innocent, because the defenses can be raised only at trial.
The plaintiffs argue that the weapons ban interfered with their work and safety. Feely was arrested, strip-searched and prosecuted for carrying a concealed weapon, then acquitted after proving that he carried it for defensive purposes related to his job. Klein was not arrested, but he argues that he risks being arrested for carrying a weapon he needs for on-the-job protection.
Some of their supporters hope to make this a landmark case that abolishes restrictions on who may carry a gun and when. But their arguments for an unfettered right are off-target.
Words in a constitution are given meaning by the context in which the words were written and by the heft of legal precedent and societal tradition.
Ohio's constitution, like the U.S. Constitution, speaks of the right to bear arms, but both constitutions were written in the context of a society that kept a small standing army and employed citizen militias as a first line of defense.
As the state argues, Ohio has had some type of ban on concealed weapons since 1859, and the bans have withstood court tests. The current law has been on the books in substantially the same form at least since 1917. In State vs. Nieto, a 1920 decision upholding the statute, the state Supreme Court held: "The statute does not operate as a prohibition against carrying weapons, but as a regulation of the manner of carrying them. The gist of the offense is the concealment.''
Although some may paint Nieto as outdated, it remains good law today. The Dispatch, for one, does not see the need to change this interpretation of the constitution.
The Hamilton County Court of Appeals may have a point if the statute is being applied in a way that presumes guilt. But this problem can be cured by a ruling that clarifies the law's application, or the legislature could amend the law to do the same. But the state's power to restrict the carrying of concealed weapons should be upheld.
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