Posted on 09/25/2003 10:22:03 AM PDT by 45Auto
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.
It is the Statue of LIBERTY, not the Statue of SAFETY.
The only people this protects are the bad guys....it's nice to know that there'll be no fear of reprisal when they mug, rape, rob, etc.
So does placing every man, moman and child in a private padded cell and feeding them through a tube.
Why back down? Your tactical advantage is lost if you carry in the open. The Second amendment states, "A well-regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." Forcing to an open carry is an infringment.
I think the cout ruling says that there is no constitutional right in Ohio to concealed carry. That just kicks it back to the legislature; it doesn't outlaw conceal carry, in of itself.
Here is a post that Kris Krinkle made on a thread I started yesterday about this decision. I thought it made a lot of sense.
I read once, before I got really interested in this stuff, that when bans on concealed arms were enacted in the early 19th century, it was permissable to bear arms openly, honest citizens did so, and it was assumed that anyone who concealed a weapon had unlawful intent because there was no other reason to conceal a weapon. Thus the ban on concealed weapons.
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. (art I pp 4)
and
This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers, not herein delegated, remain with the people. (art I pp 20).
Make of this what you will.
We must not forget come election time, the decision these two made.
Says who?
Isn't for the US Supreme Court to make this determination? If they choose to take the case, Ohio cannot stop them.
The Ohio Constitution says people have the right to bear arms for their own defense. The Second Amendment to the US Consitution says that "the right to keep and bear arms shall not be infringed". If these two clauses are in conflict, Ohio loses.
The Supreme Court has no jurisdiction over an issue concerning a state constitution UNLESS a federal question is involved. The court here only ruled that the Ohio Constitution doesn't give the right to concealed carry. Now, the 2nd Amendment might grant the right to concealed carry, but that would be a separate lawsuit. This was just a question of what the Ohio constitution said.
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. (art I pp 4)
and
This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers, not herein delegated, remain with the people. (art I pp 20).
Make of this what you will.
The Second Amendment allows for the collective defense by forming a Militia. Militias are citizen’s armies, which are different from professional armies made up of professional soldiers. Check the meaning of Militia. A well-regulated militia is one where a collection of citizens organize for a common purpose, have a plan, have some hierarchy of command as opposed to being a rampaging mob bent of lynching and looting, and are recognized in the real sense as an organization.
More or less the founders thought of men as having the fortitude and means to organize and fight for their rights if trampled upon which is the worst fear of the socialists and despots bent on imposing broader police forces, the modern equivalent of a standing army.
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