Cleveland Wins Appeal To Ban Assault Weapons
Wins appeal regarding statewide preemption.
Ohio –-(AmmoLand.com)- The 8th Ohio District Court of Appeals has overturned the trial court’s decision and ruled that Ohio Revised Code 9.68, which provided for statewide preemption of gun laws, to be unconstitutional as it pertains to rifles and shotguns and open carry. The 8th District court feels it applies only to concealed carry licensing laws.
Cleveland sued the State in March 2007 alleging that the preemption law violated home rule and that they should be able to ban “assault weapons,” prohibit open carry of firearms, maintain a gun registration scheme, and pass any such gun ordinance they wished. Ohioans For Concealed Carry and the National Rifle Association filed a joint motion to intervene, but that motion was denied and Cleveland lost at the trial court level on the strength of the Ohioans For Concealed Carry v. City of Clyde case where the Ohio Supreme Court ruled that R.C. 9.68 was constitutional because it was a “general law that is part of a comprehensive statewide legislative enactment.” Cleveland appealed their loss, and OFCC and the NRA appealed the denial to intervene.
In this ruling, the 8th District found that R.C. 9.68 was unconstitutional partially on the grounds of the 1993 Ohio Supreme Court case Arnold v. Cleveland which upheld an assault weapons ban, a case decided thirteen years before R.C. 9.68 was passed preempting such laws.
The Court agreed with Cleveland’s assertion that R.C. 9.68 violated the Home Rule provision of the Ohio Constitution which states:
Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.
Cleveland argued that R.C. 9.68 is unconstitutional because it is not a general law, despite the findings of the Ohio Supreme Court, and attempts to curtail the City’s police powers in matters other than the concealed carry of firearms.
In particular, they were concerned about Cleveland Codified Ordinance (C.C.O.) 627.08, possession of firearms by minors; C.C.O. 627.09, possessing deadly weapons on public property; C.C.O. 627.10, possessing certain weapons at or about public places; C.C.O. 627A.02, access to firearms, prohibiting children access to firearms; C.C.O. 628.03, unlawful conduct, prohibiting possession and sale of assault weapons; and C.C.O. 674.05, registration of handguns.
The State of Ohio countered that R.C. 9.68 read in conjunction with Substitute House Bill 347 did in fact demonstrate a comprehensive scheme to regulate firearms, as previously ruled in the OFCC v. Clyde case. The 8th District Court disagreed, saying that the OSC ruling only applies to concealed carry and that the Clyde case only referred to Section 9 of H.B. 12 (the original concealed carry bill) and not R.C. 9.68., though admitted that “the Clyde court impliedly upheld R.C. 9.68 as it relates to handguns.”
Therefore, the 8th District Court felt comfortable ignoring the Clyde ruling and applied R.C. 9.68 only to concealed carry laws because it was not “comprehensive” enough to be a General Law in their opinion because it “leaves unregulated: (1) the discharge of firearms, (2) the possession and sale of assault weapons, (3) the open carry of firearms on public property and public places, (4) the possession and use of firearms by minors, (5) the registration of handguns as required by the City, (6) the registrations and licensure of firearms dealers, (7) permit or licensing requirements before an individual purchases a handgun, and (8) background checks before the purchase or transfer of firearms.”
O.R.C. 9.68 reads:
The individual right to keep and bear arms, being a fundamental individual right that predates the United States Constitution and Ohio Constitution, and being a constitutionally protected right in every part of Ohio, the general assembly finds the need to provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, or other transfer of firearms, their components, and their ammunition. Except as specifically provided by the United States Constitution, Ohio Constitution, state law, or federal law, a person, without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.
The 8th District ignored “the general assembly finds the need to provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, or other transfer of firearms, their components, and their ammunition” and only focused on the next sentence which left off the word “carrying.” The Court does not believe that “possess” and “transport” applies to carrying a firearm, therefore found that the City prohibiting open carry is legal.
The 8th District also found that “R.C. 9.68 does not establish police regulations but instead limits legislative power of municipal corporations” and “attempts to curtail the City’s home-rule police powers without enacting legislation to remedy the purported ill of a confusing ‘patchwork’ of municipal regulations involving firearms.” Citing this shortfall, the Court found that 9.68 is not comprehensive and does “little to fill in the gaps” in what they see for laws regarding “firearm possession, use, transfer, and ownership” and “does not prescribe a rule of conduct upon citizens generally.”
Taking all of that into account, the 8th District ruled that “R.C. 9.68 fails to satisfy the general law test” and “that it is not a general law.” In another section, they ruled that it was an abuse of legislative power because it awarded attorney fees to any citizen who challenged a City ordinance if that ordinance was found to be violation of R.C. 9.68.
Ohioans For Concealed Carry strongly believes that the 8th District used flawed logic in determining that R.C. 9.68 is unconstitutional and that the Ohio legislature rightfully and legally passed R.C. 9.68 with the intention of not only preempting local laws regarding concealed carry, but all firearms laws in the state while lawfully granting municipalities the ability to regulate firearms discharges and zoning laws for commercial firearms sales.
The Ohio legislature was quite explicit that carrying firearms is a protected right as noted in the Ohio Constitution which states in Article 1 Section 4 that “the people have the right to bear arms for their defense and security.”
OFCC expects that Ohio Attorney General Richard Cordray will appeal the 8th District’s faulty decision to the Ohio Supreme Court and that the OSC will correctly rule that Statewide Preemption is a Constitutional and General law and halt the attempts of anti-gun administrations from denying gun rights to their citizens. OFCC will also continue our fight to not be shut out in our attempts to intervene and defend the gun rights of Ohio citizens.
About:
Ohioans for Concealed Carry, founded in 1999, is a grassroots political activist organization. When founded, the primary goal of OFCC was getting concealed carry passed into law in Ohio. With that accomplished, our mission became to refine the concealed carry law and to expand and preserve the rights of all gun owners in Ohio. Visit: Ohioccw.org