Posted on 02/12/2003 2:56:35 AM PST by Deadeye Division
Judge says ban on concealed weapons is unconstitutional
Associated Press
TIFFIN, Ohio - A Seneca County judge ruled the state's decades-old ban on carrying concealed weapons violates the Ohio Constitution as he dismissed a case against a woman charged with having a hidden gun in a car.
In a similar case, the Ohio Supreme Court has agreed to hear a challenge by activists from Hamilton County who argue the law is illegal. The activists say they want to carry guns for self-defense and sued to try to prevent Cincinnati and county authorities from enforcing the ban.
Seneca Common Pleas Judge Michael P. Kelbley said in his 18-page ruling issued Tuesday that the law prevents Ohioans from defending themselves.
Kathryn J. Howard, 28, of Fostoria, asked the court in November 2002 to dismiss the charge against her, saying she needed a concealed gun for protection because she had been sexually assaulted in the past.
Howard was a passenger in a car pulled over in June 2002 in Fostoria, and police found her loaded 9mm pistol under her seat, court documents said. The driver was charged with driving under the influence.
Kelbley said in his ruling that although the Hamilton County case was cited in Howard's motion to dismiss, he had to make an independent decision on the law's constitutionality. He said he only could focus on Howard's case and did not consider whether his decision would set a precedent.
In January, the Hamilton County Common Pleas Court said the ban violates the Ohio Constitution and people should be allowed to carry weapons. In April, the 1st Ohio District Court of Appeals upheld that ruling. The Supreme Court has not said when it will hear arguments in the case.
Seneca County Prosecutor Ken Egbert Jr. said he will appeal the decision to the 3rd Ohio District Court of Appeals in Lima and ask the court to block the ruling until the appeal is decided. Until then, he said the ban on concealed weapons will continue to be enforced in the county.
Howard's attorney, Mark Klepatz, said even if an appeals court decides the charge should not have been dismissed, he is confident the law would be found unconstitutional in a trial.
The Legislature has revived a bill this year to allow concealed weapons. The legislation is essentially the same as a bill that passed in the House last session but died in a conference committee.
The bill, sponsored by Rep. Jim Aslanides, a Republican from Coshocton, would allow citizens to carry concealed weapons if they pass criminal background checks and successfully complete firearms training.
Information from: The Advertiser-Tribune
Pray for righteous state judges to re-unite the states.
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Seneca County Prosecutor Ken Egbert Jr. said he will appeal the decision to the 3rd Ohio District Court of Appeals in Lima and ask the court to block the ruling until the appeal is decided. Until then, he said the ban on concealed weapons will continue to be enforced in the county.
Can anyone explain why a prosecutor would enforce a law that has been ruled unconstitutional in his jurisdiction?
Interesting proposition. Certainly, DeRolph III demonstrated that the court would go to great contortions over a tough political question. But even so, this case doesn't have that much hair on it, does it? I'm not even sure it would be moot;I read the cases last summer, but I can't remember the substance-was it a challenge to a criminal enforcement, which probably wouldn't become moot if the General Assembly passes a new law, or a challenge to civil registration, which might, but might not, become moot?
Personally, I think we're dealing with a somewhat conservative court, Sweeney, Resnick and Pfeifer notwithstanding, that operates on a New Deal worldview. Thus, they'll uphold the death penalty, but they'll not touch the Second Amendment. They'll overrule those good Cincinnati judges in a heartbeat on this one.
Advance apologies and commendations if I'm wrong on this one. And God bless Justice Cook on her way to the federal bench.
I would love to see one of these poor victims, bring legal action against the State.
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