460 N.E.2d 1126 | Ohio Ct. App. | 1983
On June 17, 1981, a complaint was brought in the East Cleveland Municipal Court charging that "on or about the 9th day of April AD 1981 * * * Rosetta C. Scales did unlawfully and knowingly possess or control or have on or about her person a handgun without a handgun owner's identification card issued to her and not being exempt or upon a suitable firing range, to wit: a .38 caliber Arminius Titan Tiger * * *," in *26 violation of East Cleveland Municipal Ordinances Section 545.14(a).1
Defendant-appellant Scales ("defendant") filed a motion to dismiss, claiming that the ordinance was unconstitutional. Following oral argument, the court ruled against her, upholding the ordinance. The defendant was found guilty by the court, fined, and given a three-day suspended sentence. The gun was ordered confiscated and destroyed.
The defendant appeals assigning one error:
"The ordinances of the city of East Cleveland which require the registration of handguns, the possession of an identification card, and the penalties thereunder, violate the Due Process and Equal Protection Clauses of the
For the reasons adduced below, the judgment is affirmed.
Section
"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."
There is little doubt that the gun control ordinance is a police regulation passed in the exercise of local self-government. A decisive question is whether the ordinance is "in conflict with general laws," particularly R.C.
The law in Ohio on "conflict" is stringent. Pre-emption is not easily demonstrated. The classic test was given in Village ofStruthers v. Sokol (1923),
"* * * No real conflict can exist unless the ordinance declares something to be right which the state law declares to be wrong, or vice versa. There can be no conflict unless one authority grants a permit or license to do an act which is forbidden or prohibited by the other." *27
This rule has been followed in numerous cases.
An example of strict or actual conflict was found in a unique situation where the same crime was treated on the one hand as a felony by the state and on the other as a misdemeanor by the municipality. The court found conflict because the municipality was able to defeat state policy "by deliberately changing an act which constitutes a felony under state law into a misdemeanor * * *." Cleveland v. Betts (1958),
In the present case, however, R.C.
Applying the Sokol test, there is no actual conflict. R.C.
If, under the common law, there was a right to bear arms available to individuals, regulation of the right has existed since at least 1328. The Statute of Northampton, 1 English Statutes at Large 420, 422, 2 Edw. Ch. III, Chapter 3 (1328), provided that:
"[N]o man great nor small [shall] * * * go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison at the King's pleasure."
Later, in 1670, the very keeping of a gun was barred to those of insufficient property:
"III. And it is hereby enacted and declared, That all and every person and persons not having lands and tenements, or some other estate of inheritance, in his own or his wife's right, of the clear yearly value of one hundred pounds per annum, or for term of life, or having lease or leases of ninety-nine years, or for any longer term, of the clear yearly value of one hundred and fifty pounds, other than the son and heir apparent of an esquire, or other person of higher degree, and the owners and keepers of forests, parks, chases or warrens, being stocked with deer or conies for their necessary use, in respect of the said forests, parks, chases or warrens, are hereby declared to be persons by the laws of this realm not allowed to have or keep for themselves, or any other person or persons, any guns, bows, greyhounds, settingdogs, ferrets, coneydogs, lurchers, hays, nets, lowbels, harepipes, gins, snares, or other engines aforesaid; but shall be and are hereby prohibited to have, keep or use the same." 8 *28 English Statutes at Large 380, 381, 22 Car. II, Chapter 25, Section 3.
The defendant suggests that the
The
"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."
The crucial question in interpreting the amendment is the relation between the first two clauses and the second two.
In United States v. Miller (1939),
The court put the amendment into perspective:
"The Constitution as originally adopted granted to the Congress power — `To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the Statesrespectively, the Appointment of the Officers, and the Authorityof training the Militia according to the discipline prescribed byCongress.' [Clauses 15, 16, Section 8, Article I.] With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the
Thus, the clauses of the amendment are bound together. The right of an individual is dependent upon a role in rendering the militia effective. It is a military, not an individual, concept.5
Moreover, it is clear from its history that the
The amendment responds to the fears discussed by Madison in The Federalist, No. 46:
"* * * Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion *29 of the federal government; still it would not be going too far to say that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops." Hamilton, Jay, Madison, The Federalist (Bicentenial Ed. 1976) 310.
By protecting the existence of the state militias, the
Moreover, the
Having failed to establish that the East Cleveland ordinance denies any fundamental or civil right to carry weapons, due process "demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained." Nebbia v. New York (1934),
"This court can conceive of no matter more concerned with public safety, health and welfare of the citizens * * * than that of the indiscriminate purchase and use of firearms, and the regulation thereof in any manner, not preempted by the state of Ohio * * *."8
Registration of both the individual owner and the handgun involved are reasonable means of attaining that goal. Mosher v.Dayton, supra, at 247; University Heights v. O'Leary (1981),
Section 545.14(a) of the ordinance requires all possessors of handguns within the city limits to have an owner identification card. Excepted are those "upon a suitable firing range" and those listed in Section 545.15. These include, among others, state and federal officers, manufacturers and dealers in handguns, non-residents authorized by the sheriff of their place of residence to carry handguns, and non-residents who enter the city for purposes of exhibiting or trading handguns.
Assuming, without deciding, that the defendant had standing to challenge these classifications, the requirement that all unexcepted possessors obtain proper registration is a rational regulation. *30
This issue was decided in University Heights v. O'Leary,supra, at 134-135:
"The Lambert decision rested on three factors: (1) The conduct involved was passive, (2) the situation addressed by the ordinance would not move one to inquire as to the applicable law, and (3) the law is designed solely for its convenience in compiling a list which might be of some assistance to law enforcement agencies. United States v. Weiler (C.A. 3, 1972),
"First, mere passive conduct is not involved here. To violate the law, one must acquire possession of a firearm. United States
v. Crow (C.A. 9, 1971),
The East Cleveland ordinance is not unconstitutional underLambert.
First, the right protected by the Due Process Clause is simply the right to travel, Shapiro v. Thompson (1969),
Second, the defendant is a resident of East Cleveland, and as such has no standing to challenge the ordinal effects on non-residents. For that challenge would implicate an "imaginary" case while the present decision, of necessity, deals only with the case in hand, cf., Yazoo Miss. Valley R.R. Co. v. JacksonVinegar Co. (1912),
Judgment affirmed.
CORRIGAN and NAHRA, JJ., concur.
"(a) No person shall purchase, own, possess, receive, have on or about his person, or use any handgun except upon a suitable firing range, unless such person has a handgun owner's identification card issued to him and in effect pursuant to this section, or unless such person is exempt from the requirements of an identification card pursuant to Section 545.15. (Ord. 6105. Passed 3-10-70.)"
"(A) Unless relieved from disability as provided in section
"(1) Such person is a fugitive from justice;
"(2) Such person is under indictment for or has been convicted of any felony of violence, or has been adjudged a juvenile delinquent for commission of any such felony;
"(3) Such person is under indictment for or has been convicted of any offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse, or has been adjudged a juvenile delinquent for commission of any such offense;
"(4) Such person is drug dependent or in danger of drug dependence, or is a chronic alcoholic;
"(5) Such person is under adjudication of mental incompetence.
"(B) Whoever violates this section is guilty of having weapons while under disability, a felony of the fourth degree."