Klein v. LeisKlein v. Leis
- Reporters:
- , ,
- Before:
- Pfeifer
Lead Opinion
{¶ 2} The court of appeals determined that
{¶ 3} Section 4, Article I of the Ohio Constitution states: “The people have the right to bear arms for their defense and security * * Today we are asked to determine whether
{¶ 4} It is fundamental that a court must “presume the constitutionality of lawfully enacted legislation.” Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 38, 616 N.E.2d 163, citing Univ. Hts. v. O’Leary (1981), 68 Ohio St.2d 130, 135, 22 O.O.3d 372, 429 N.E.2d 148, and Hilton v. Toledo (1980), 62 Ohio St.2d 394, 396, 16 O.O.3d 430, 405 N.E.2d 1047. Therefore, we begin by presuming that
I
{¶ 5} The right to bear arms is part of Ohio’s heritage. A right-to-bear-arms clause was in the Bill of Rights of our first Constitution. Section 20, Article VIII, Constitution of Ohio of 1802 (“the people have a right to bear arms for the defence of themselves and the state”). Our current right-to-bear-arms clause
{¶ 6} While discussing a resolution to retain without change the Bill of Rights of the 1802 Constitution, Article VIII, Delegate William Cutler of Washington County stated that his constituents believed that “the less we do with the leading articles of the Constitution the better. Those which have subserved our purposes of government so long and so well, they think we had better pass over for the benefit of generations to come.” I Report of the Debates and Proceedings of the Convention for the Revision of the Constitution, 1850-51 (1851) 70. Given the lack of discussion on the current Section 4, Article I in the debates, it is possible that this statement reflected the beliefs of the entire convention with respect to Section 4. See II Report 326. Delegate M. Mitchell of Knox County referred generally to the Bill of Rights, which includes the right-to-bear-arms clause, as “the very place where the great fundamental rights of the people are enunciated and declared.” Id. at 476. “We can only surmise that no debate ensued over [the right-to-bear-arms clause] because the right to possess and use certain arms under certain circumstances was widely recognized and uncontroversial.” Arnold, 67 Ohio St.3d at 43, 616 N.E.2d 163.
{¶ 7} Today, we reiterate that the right to bear arms is fundamental. Id. at paragraph two of the syllabus. Yet, however fundamental and entrenched in the constitutional heritage of our state, the right to bear arms is not absolute. Id. Most, perhaps all, of the rights we hold fundamental have limitations. See id. at 44-45, 616 N.E.2d 163 (discussing limits on rights of assembly, free speech, free press, right to counsel, and right to trial by jury).
{¶ 8} In Ohio, the right to bear arms is fundamental and is also subject to limitations. In State v. Hogan (1900), 63 Ohio St. 202, 58 N.E. 572, this court approved in dicta the constitutionality of a prohibition in a statute against the carrying of dangerous weapons by tramps. Revised Statutes of 1880, Section 6995, 76 Ohio Laws 191. The court stated that the right to bear arms is a right of which citizens “cannot be deprived.” Hogan, 63 Ohio St. at 218, 58 N.E. 572. The court explained that the right “enjoins a duty in execution of which that right is to be exercised. If [a person] employs those arms which he ought to wield for the safety and protection of his country, his person and his property, to the annoyance and terror and danger of its citizens, his acts And no vindication in the bill of rights. That guarantee was never intended as a warrant for vicious persons to carry weapons with which to terrorize others. Going armed with unusual and dangerous weapons to the terror of the people is an offense at common law. A man may carry a gun for any lawful purpose, for business or amusement, but he cannot go about with that or any other dangerous weapon to terrify and alarm a peaceful people.” Id. at 218-219, 58 N.E. 572. Although we
{¶ 9} The original statute prohibiting the carrying of concealed weapons was enacted within eight years after the Constitution of 1851 was ratified. R.S. 6892, 56 Ohio Laws 56 (1859). It has remained part of Ohio law, verbatim or in a modified form, ever since. E.g., G.C. 12819,107 Ohio Laws 28;
{¶ 10} In State v. Nieto (1920), 101 Ohio St. 409, 413, 130 N.E. 663, this court upheld the constitutionality of G.C. 12819, the successor of the original statute prohibiting the carrying of concealed weapons. The court stated, “The statute does not operate as a prohibition against carrying weapons, but as a regulation of the manner of carrying them” and found the concealed-weapons statute to be a “proper exercise of the police power of the state.” Id. at 413, 415, 130 N.E. 663. To explain this finding, the court quoted with favor from Dunston v. State (1900), 124 Ala. 89, 27 So. 333, where the Supreme Court of Alabama stated: “One of the objects of the law is the avoidance of bad influences which the wearing of a concealed deadly weapon may exert upon the wearer himself, and which in that way, as well as by the weapon’s obscured convenience for use, may tend to the insecurity of other persons.” Nieto at 415-416, 130 N.E. 663.
{¶ 11} Between the time the original concealed-weapons statute was enacted and the time this court ruled in Nieto, the state held two constitutional conventions. At the Third Constitutional Convention of Ohio in 1873-1874, the delegates did not offer any amendments or debate concerning Section 4, Article I, the right-to-bear-arms clause. II Proceeding and Debates of the Third Constitutional Convention, Part 2 (1874) 1759. The Committee on the Preamble and Bill of Rights stated that it had “not deemed it advisable to make any change in the Preamble and Bill of Rights in the present Constitution.” Id. at 1736. At the Fourth Constitutional Convention of 1912, two proposals, Nos. 3 and 165, concerning the right-to-bear-arms clause were presented. I Proceedings and Debates of the Constitutional Convention (1912) 85 and 123. Neither proposal, nor any other at that convention, generated any discussion concerning the concealed-weapons statute. Both proposals were indefinitely postponed. Id. at 1404.
{¶ 12} Appellees ask us to declare unconstitutional a statute that has been part of our legal heritage since 1859, that has been amended by our General Assembly time and again without fundamental modification, that did not arouse the concern of two different constitutional conventions, and that has been held by this court to
{¶ 13} The statutory scheme in question prohibits the carrying of concealed weapons. We consider this to be regulation of the manner in which weapons can be carried. See Nieto, 101 Ohio St. at 413, 130 N.E. 663. As such, it involves the police power of the state. See Arnold, 67 Ohio St.3d at 47, 616 N.E.2d 163 (“This court has established that firearm controls are within the ambit of the police power”).
{¶ 14} As in Arnold, we look next to determine whether
{¶ 15} The General Assembly has determined that prohibiting the carrying of concealed weapons helps maintain an orderly and safe society. We conclude that that goal and the means used to attain it are reasonable. We hold that
II
{¶ 16} Appellees also argue that
{¶ 17} Appellees argue that the affirmative defenses of
{¶ 18} We conclude that the affirmative defenses of
Ill
{¶ 19}
Judgment accordingly.
Moyer, C.J., Resnick, F.E. Sweeney and Knepper, JJ., concur. Lundberg Stratton and O’Connor, JJ., dissent. Richard W. Knepper, J., of the Sixth Appellate District, sitting for Cook, J.
Dissenting Opinion
dissenting.
{¶ 20} The majority incorrectly invokes a reasonableness test to assess whether
I
Standing
{¶ 21} A preliminary issue raised by the appellants, but left unaddressed by the majority, is whether the plaintiffs have standing to prosecute this suit. They do. Criminal statutes are proper subjects of declaratory judgment actions where
II
Intermediate Scrutiny
{¶ 22} The right to bear arms for defense and security provided by the Ohio Constitution is a fundamental individual right. Majority opinion, ante at ¶ 7; Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 616 N.E.2d 163, paragraph two of the syllabus. Generally, infringements upon fundamental rights are subject to strict scrutiny. State v. Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶ 13. Accord Painesville Bldg. Dept. v. Dworken & Bernstein Co., L.P.A. (2000), 89 Ohio St.3d 564, 733 N.E.2d 1152 (speech); Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (privacy); Saenz v. Roe (1999), 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (travel); Humphrey v. Lane (2000), 89 Ohio St.3d 62, 728 N.E.2d 1039 (religion); Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 423, 633 N.E.2d 504 (trial by jury); Primes v. Tyler (1975), 43 Ohio St.2d 195, 198-199, 72 O.O.2d 112, 331 N.E.2d 723 (equal protection). Like other fundamental rights, the right to bear arms for security and defense should normally be protected by strict scrutiny. To survive strict scrutiny, a restriction must be necessary to serve a compelling government interest. See State v. Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶ 13.
{¶ 23} However, as the majority articulates,
{¶ 24} Under intermediate scrutiny, a regulation will be upheld only if the regulation is narrowly tailored to serve an important government interest and leaves open other means of exercising the right. Id. The state argues that the carrying of concealed weapons must be banned to protect public safety. Ensuring public safety is an important government interest that would satisfy the first prong of the test, if the statute were narrowly tailored. Further, the state correctly asserts that the statute leaves open the ability to bear arms by openly carrying a firearm, satisfying the third prong of the test.
{¶ 26} As the majority states, “affirmative defenses are proven at trial, and the burden of proof, a preponderance of the evidence, is upon the accused.” Ante at ¶ 17. The majority opinion also inadvertently demonstrates that requiring the accused to prove a constitutional right as an affirmative defense is problematic: “Officers can readily ascertain whether a person is violating
{¶ 27} Under the current statutory scheme, an officer need not be concerned with whether the accused is engaged in a constitutionally protected, i.e., lawful, activity at the time of arrest. Rather, a person can be arrested anytime when carrying a concealed weapon, even if doing so for the constitutionally protected purposes of defense and security. This creates an unavoidable chilling effect on the free exercise of the right to bear arms for defense and security.
{¶28} Moreover, the opportunity for the accused to establish that he was exercising a fundamental right does not justify subjecting him to arrest each time he exercises the right. 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. See, e.g., Houston v. Hill (1987), 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398. An otherwise unconstitutional statute is not constitutional solely because it provides that a citizen may point to the Constitution in his defense at trial. The arrest itself violates the fundamental right. By authorizing the arrest,
{¶ 29} To be narrowly tailored, a statute must place the burden on the state to prove that the accused was not exercising the constitutionally protected, fundamental right to bear arms for security and defense. If the constitutionally protected purposes of security and defense were excepted from the statute’s prohibitions rather than established as affirmative defenses, police officers could arrest for failure to comply with the statute but not for merely exercising a constitutionally protected right.
{¶ 30} I would hold
{¶ 31} Public safety is a compelling state interest. The regulation of concealed weapons falls within this public-safety interest; however, a regulation may limit a fundamental right only as much as absolutely necessary to promote public safety. Other states have successfully balanced the rights of citizens to bear arms with the state’s compelling public-safety interest via constitutional statutory regulation. See Ala.Code 13A-11-75; Ariz.Rev.Stat. 13-3112; Ark.Code 5-73-301 et seq.; Colo.Rev.Stat. 18-12-205; Fla.Stat. 790.06; Ga.Cpde Ann. 16-11-129; Idaho Code 18-3302; Ind.Code 35-47-2; Ky.Rev.Stat. 237.110 et seq.;