State v. SkaggsState v. Skaggs
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 11, 2024
APPEARANCES:
For Plaintiff-Appellee
MELISSA SCHIFFEL Delaware County Prosecutor BY KATHERYN MUNGER Assistant Prosecutor 140 N. Sandusky St. Delaware, OH 43015
For Defendant-Appellant
PAUL SCARSELLA 511 S. High Street Columbus, OH 43215
{¶1} Appellant Melvin Skaggs appeals the judgment entered by the Delaware County Court of Common Pleas convicting him following his pleas of no contest to having weapons while under disability, and sentencing him to three years of community control. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} On April 30, 2021, appellant was traveling at a high rate of speed on I-71. A traffic stop was conducted. When the trooper approached the vehicle, she smelled marijuana. In plain view of the center console was an ashtray with burnt marijuana cigarettes. Appellant was removed from the vehicle because he attempted to reach towards the door and under his legs, despite being told to keep his hands on the steering wheel. The trooper conducted a search of the vehicle, and located body armor, marijuana, and a loaded firearm in the vehicle. The investigation subsequently revealed that the firearm was stolen during “an incident in 2020 in Madison Township.” The gun was test-fired, and proved to be operational.
{¶3} Appellant was under a disability for possession of a firearm by virtue of a prior conviction in Franklin County for possession of heroin.
{¶4} Appellant was indicted by the Delaware County Grand Jury with having weapons while under disability, in violation of
{¶5} The trial court issued a judgment entry on February 9, 2024, denying appellant‘s motion to dismiss. The trial court noted that the overwhelming majority of courts to address the issue have concluded the ruling in Bruen did not alter the Supreme Court‘s prior holdings that restrictions of the right of a convicted felon to possess weapons are constitutional, and numerous courts have specifically found the federal felon-in-possession prohibition contained in
{¶6} The trial court also found that the majority of courts addressing the issue post-Bruen have found the parallel federal statute —
{¶8} Appellant appeals the judgment entries of the Delaware County Court of Common Pleas, and assigns the following as error:
{¶9} “I. THE UNITED STATES SUPREME COURT‘S DECISION IN NEW YORK STATE RIFLE AND PISTOL ASSOCIATION V. BRUEN, MAKES THE STATUTE IN QUESTION IN THIS CASE UNCONSTITUTIONAL, AND THE TRIAL COURT‘S DECISION SHOULD BE OVERRULED, AND THE MATTER SENT BACK TO THE TRIAL COURT.”
I.
{¶10} Appellant contends the trial court committed error in denying his motion to dismiss the indictment. “Generally, we review a trial court‘s decision on a motion to dismiss an indictment for [an] abuse of discretion.” State v. Hudson, 2022-Ohio-1435, ¶ 19. However, “appellate courts conduct a de novo review of a trial court‘s decision concerning a defendant‘s motion to dismiss all or part of an indictment based upon a constitutional challenge to the statute under which the defendant stands indicted.” State v. Bronkar, 2019-Ohio-1306, ¶ 12 (5th Dist.).
{¶11} A statute may be challenged as being facially unconstitutional, or unconstitutional as applied to the particular party. Arbino v. Johnson & Johnson, 2007-Ohio-6948, ¶ 26. In this case, appellant makes only as as-applied challenge, not a facial challenge. “An as-applied challenge * * * alleges that application of the statute in a
{¶12} In this case, appellant made an as-applied constitutional challenge to
{¶13} Appellant‘s as-applied challenge relies extensively on the new framework mandated by the United States Supreme Court in New York State Rifle & Pistol Assn. v. Bruen, 597 U.S. 1 (2022). In Bruen, the Supreme Court clarified the legal test required for assessing Second Amendment challenges. The Court held the correct test must be “rooted in the Second Amendment‘s text, as informed by history,” and that the government “must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at syllabus. Pursuant to Bruen, when a statute infringes on a person‘s Second Amendment right to bear arms, the burden is on the state to demonstrate the “regulation is consistent with this Nation‘s historical tradition of firearm regulation.” Id. at syllabus.
{¶14} This Court has previously analyzed
{¶15} During the pendency of this case, the United States Supreme Court again addressed the issue of the Second Amendment in United States v. Rahimi, 602 U.S. ---, 144 S.Ct. 1889 (2024). Rahimi was a Bruen-based challenge to
{¶16} The U.S. Supreme Court reversed the Fifth Circuit Court of Appeals in Rahimi, and found Section
{¶17} The Court reaffirmed its holding in Bruen that the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin the Nation‘s regulatory tradition and that when a firearm regulation is challenged under the Second Amendment, the government must show the restriction is “consistent with the Nation‘s historical traditions of firearm regulation,” and a court must “ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit. Id. at *1898. However, the Court found the Fifth Circuit “erred in
{¶18} The Court noted that, unlike the regulation it struck down in Bruen, a broad licensing regime, Section
{¶19} In both its written argument and during its oral argument, appellee argued
{¶20} Rather than attempt to rehash the historical traditions that are relevantly similar, we adopt and incorporate the reasoning and detailed description of the “historical
{¶21} As to the historical tradition of disarming those the legislature deems dangerous, we adopt and incorporate the detailed historical analysis completed by the Sixth Circuit in United States v. Williams, 2024 WL 3912894 (6th Cir. Aug. 23, 2024); see also analysis in U.S. v. Goins, 647 F.Supp.3d 538 (E.D. Kentucky 2022) (thorough analysis detailing historical tradition of disarming anyone judged to be dangerous). Writing for the majority, Judge Thapar reviewed and explained historical evidence from the early English kings, Parliament, common law surety regimes, and statutory law dating back to 1328 demonstrating the history and tradition of disarming individuals that were deemed dangerous. Id. at *6-*13. We find this detailed analysis to be persuasive. The Sixth Circuit concluded, the “nation‘s history and tradition demonstrate Congress may disarm individuals they believe are dangerous,” and Section
{¶22} While appellant contends
{¶23} Numerous federal courts have examined and considered the constitutionality of United States Code provisions similar to
{¶24} The overwhelming weight of federal authority upheld federal prohibitions on possession of weapons by felons and/or persons using controlled substances as constitutional under Bruen. See, e.g., Fried v. Garland, 640 F.Supp.3d 1252, 1263 (N.D. Florida 2022) (holding the historical tradition of keeping guns from those the government fairly views as dangerous – like alcoholics and the mentally ill – is sufficiently analogous to modern laws keeping guns from habitual users of controlled substances); United States v. Ledvina, 2023 WL 5279470 (N.D. Iowa August 16, 2023) (holding Section
{¶25} Further, federal courts that have specifically considered whether Section
{¶27} Additionally, the state‘s “narrowly tailored purpose” is demonstrated by the fact that, prior to 2011, minor misdemeanor drug offenses under
{¶28} As noted by the trial court, we similarly note that Ohio‘s ban on possession of a firearm by a person convicted of a felony drug offense is not necessarily a lifetime ban, as
{¶29} Appellant in this case relies primarily on the federal cases of Range, Rahimi, and Daniels to support his argument. In Daniels, the Fifth Circuit Court of Appeals found the federal ban on firearm possession unconstitutional in a case where the defendant admitted to using marijuana multiple times per month. U.S. v. Daniels, 77 F.4th 337 (5th Cir. 2023). The Fifth Circuit held a federal statute prohibiting firearm possession by a person subject to a domestic violence restraining order was unconstitutional in U.S. v. Rahimi, 61 F.4th 443 (5th Cir. 2023). In Range, the Third Circuit Court of Appeals found a provision prohibiting a felon from possessing a weapon unconstitutional as applied to a person convicted of making false statements to obtain food stamps, but noted the decision was narrow, and only applied to the defendant given his specific violation. Range v. Atty. Gen. United States of America, 69 F.4th 96 (3rd Cir. 2023).
{¶30} However, as noted above, in Rahimi, the U.S. Supreme Court reversed the Fifth Circuit, finding the federal statute prohibiting firearm possession by a person subject to a domestic violence restraining order constitutional under the Second Amendment. 602 U.S. ----, 144 S.Ct. 1889 (2024). The U.S. Supreme Court vacated and remanded both the Range and Daniels cases to the Fifth and Third Circuits, “for further consideration in light of United States v. Rahimi.” U.S. v. Daniels, 2024 WL 3259662 (July 2, 2024); Garland v. Range, 2024 WL 3259661 (July 2, 2024). Further, post-Rahmini, the Third Circuit found §
{¶31} The history and tradition relevant to the Second Amendment support the legislature‘s power to restrict the Second Amendment right of drug users, alcoholics, or the mentally ill to carry firearms, and/or the history and tradition relevant to the Second Amendment support the legislature‘s power to disarm those the legislature deems dangerous. In this case, appellant was previously convicted of possession of heroin, a fifth-degree felony. We find appellee met its burden to point to historical precedent demonstrating
{¶32} Based on the foregoing, appellant‘s assignment of error is overruled. The judgment entries of the Delaware County Court of Common Pleas are affirmed.
By Gwin, P.J., and
Wise J., concur;
King, J., dissents
{¶ 33} The Second Amendment of the United States Constitution requires the State of Ohio to demonstrate that
A Brief History of This Court‘s Precedent Post-Bruen
{¶ 34} In Striblin, this court was faced with a Second Amendment challenge following a plea of no contest. The defendant pleaded no contest to
{¶ 35} In State v. Parker, 2023-Ohio-2127 (5th Dist.), this court was asked to consider whether
{¶ 36} While this court found neither defendant could be properly prosecuted in Striblin or Parker, we have not sustained every challenge. This court also has reviewed at least one post-Bruen challenge of
Skaggs is a “Person” Under the Text of the Second Amendment and Thus Entitled to its Protection
{¶ 37} In order to meet its burden, the state first argues that Skaggs is not a person under the Second Amendment and thus is outside the scope of protection. Appellee‘s Brief at 10. In Striblin, this court acknowledged there was an open question whether categories of individuals could be disarmed without consideration of the history and tradition of firearm regulations. Striblin at ¶ 22. That line of reasoning was primarily born from the Supreme Court‘s repeated statements suggesting that felons might be properly disarmed (more on that below) in conjunction with Bruen‘s command to analyze the text of the Second Amendment as the first step. Whatever viability that argument had previously, it is no longer the case after United States v. Rahimi, 602 U.S. ___, 144 S.Ct. 1889 (2024). Two aspects of Rahimi require us to proceed to the history and tradition analysis. First, the Supreme Court explicitly rejected the argument the state makes here. In Rahimi, the United States argued the defendant could be disarmed because he was not responsible. Id. at 1903. The Court held that “responsible” was a vague term and it did not derive from any precedent. Id.
{¶ 38} Second, this statement cannot be argued away as dicta because in Rahimi, the Court proceeded to the history and tradition analysis. Id. at 1897-1898. If the text of the Second Amendment allowed the legislature to establish categories of irresponsible individuals who could be properly disarmed, then there would have been no need for the Court to have proceeded with the extensive consideration of history and tradition. Thus, the natural conclusion is that Mr. Rahimi was a “person” protected under the Second Amendment.
{¶ 39} Here too, we must likewise hold Skaggs to be a person covered by the text and proceed to a consideration of analogous history and tradition of firearm restrictions. The reason for that conclusion is as follows. The Court‘s opinion noted that Mr. Rahimi threatened and assaulted one woman, threatened another with a handgun, and was connected to at least five shootings. Id. at 1895. Understandably, the state court adjudicated Mr. Rahimi as a person who represents “a credible threat to physical safety.” Id. at 1896. As a consequence of this finding, he was prohibited from possessing a firearm under
{¶ 40} In contrast here, the subject of
The Second Amendment Does Not Allow a Prohibition on Possession of a Firearm Merely Because the Person Has Been Convicted for the Possession of a Controlled Substance
{¶ 41} The state argues alternatively that the history and tradition of firearm regulations support Skaggs‘s conviction under
{¶ 42} In Striblin, this court held there was such a distinction and followed the general reasoning of Justice DeWine in State v. Weber, 2020-Ohio-6832. Striblin, 2024-Ohio-2142, at ¶ 32 (5th Dist.) (“Precedent from the Supreme Court of Ohio suggests that intoxication is a narrow prohibition, rather than one from which a court can analogize broad prohibitions“). We additionally considered the history and tradition of regulating
{¶ 43} Accordingly, our own precedent, analyzing the history and tradition of firearm restrictions related to intoxication, does not support the state‘s position. Here, there is no claim of intoxication at the time of arrest, nor is this a prosecution under either
{¶ 44} Without consideration of our own precedent on the historical intersection of firearms and intoxicants, the majority instead purports to adopt the reasoning of Justice DeWine‘s concurrence in Weber and the Sixth Circuit‘s decision in United States v. Williams, 113 F.4th 637, 2024 WL 3912894 (6th Cir. 2024). But neither case dealt with
{¶ 46} The majority finds the “overwhelming weight of federal authority” supports its conclusion. But in my review of the Second Amendment and Bruen, I find nothing supporting this appeal to authority.1 Rather, the Supreme Court of the United States made our charge clear; we are to ensure the state carried its burden that the firearm restriction at issue is consistent with this nation‘s history and tradition of firearm regulations.
{¶ 47} The only history offered by the majority is to conclude that a conviction for drug possession deems the person the equivalent of “mental incompetent,” “drug dependent,” or a “bad risk.” But we may not assume a conclusion. Instead, we are required to demand that the state show us how imposing a functional lifetime ban on someone for a drug possession conviction that happened years ago and then convicting the same person for violating that ban is consistent with the history and tradition of firearm regulations. While it is surely easier to quickly label the defendant as dangerous and conclude our work is done, the process of deciding whether this defendant can be disarmed is more exacting. And neither of the cases adopted by the majority helps explain how it reached its conclusion.
{¶ 49} In Weber (which we largely followed in Striblin), Justice DeWine was clear that what made the person dangerous was being under the influence while handling a firearm. It was the close temporal nexus of being in the altered state and handling the firearm that made the person dangerous. Here there is no such temporal nexus.
{¶ 50} In the absence of historical considerations, the majority instead turns to consider the “narrowly tailored” purpose of the statute. But judicial policymaking under the guise of tiers of review is expressly forbidden by
{¶ 51} Although the majority cites district court opinions that agree with its chosen outcome, it omits discussion of the federal appellate cases adverse to its position, finding because they were vacated, they are no longer significant. As discussed below, not all of them were vacated and a judicial determination about their legal status does not blot from existence the historical evidence they discuss. That historical evidence is adverse to the majority‘s conclusion; and that evidence exists and must be considered irrespective of whether the underlying opinion is binding authority on anyone.
{¶ 52} An example of adverse authority that was ignored is the very recent Connelly case from the Fifth Circuit regarding whether a user of a controlled substance can be barred from possession of a firearm under
{¶ 53} Finally, the Fifth Circuit considered how laws regarding intoxication and possession of firearms impacted the right of a drug user to be armed. As we found in Striblin, they too found mere consumption (or use) of an intoxicating substance to be insufficient basis for abridging a person‘s constitutional rights; instead, the Fifth Circuit
{¶ 54} I too conclude, upon the review of the history and tradition of firearm regulations, that the denial of right to possess, carry, and use firearms over a single possession offense that occurred years ago under
The Second Amendment Does Not Allow a State to Disarm an Individual Based Solely Upon its Own Authority to Classify an Offense as a Felony
{¶ 55} The state‘s second argument is that commission of any felony is sufficient for the state to bar that person from possession of a firearm. Appellee‘s Brief at 10-15. The legal basis for this argument traces its origins to District of Columbia v. Heller, 554 U.S. 570 (2008), where the Supreme Court of the United States stated that restrictions on felons in possession are presumptively lawful. Id. at 627. But the Supreme Court‘s holdings in Bruen and Rahimi do not support broad disarmament regimes based on any felony convictions. With regard to Bruen, a number of federal appellate courts questioned
{¶ 56} In addition to those cases, the Ninth Circuit also found such prohibitions unconstitutional. United States v. Duarte, 101 F.4th 657 (9th Cir. 2024), rehearing in banc granted, 108 F.4th 786 (9th Cir. 2024). All of these cases reviewed the history and tradition of firearm regulations and found the state failed to meet its burden. In these cases that found the federal analogue to
{¶ 57} While there was plenty of reason to doubt any and all felons could be properly disarmed after Bruen, that proposition was substantially weakened after Rahimi. After reviewing the history and tradition of disarming people presenting danger or causing alarm, the Court held as follows: “[A]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the
{¶ 58} A six-year old conviction for possession of a controlled substance does not manifestly lend itself to a conclusion that the offender poses a credible, present threat to others. Outside of possession, some other aspects of the statute such as drug trafficking may, consistent with Rahimi, allow for disarmament, but those questions are not before us today. To be sure, the Court did not hold that a credible threat of physical safety to
{¶ 59} A subsidiary issue within this particular argument from the state revolves around its authority to make and classify felony offenses. Appellee‘s Brief at 12. A similar issue was reviewed and discussed in the Ninth Circuit Duarte case. Duarte, 101 F.4th at 690. That court held the state was required to produce distinctly similar analogues to the offense charged from the Founding Era of crimes that were punished by death, lifetime imprisonment, or permanent forfeiture of property. Id. The Fifth Circuit recently also reached a similar conclusion, holding this: “Simply classifying a crime as a felony does not meet the level of historical rigor required by Bruen and its progeny.” United States v. Diaz, ___ F.4th ___, 2024 WL 4223684 (5th Cir. 2024).
{¶ 60} The need for a definition of a felony grounded in the federal constitution is even more acute when considering the entire constitutional structure. The federal right of all persons to keep and bear arms that is secured by the
{¶ 61} In his commentaries, Sir William Blackstone observed that felonies were serious offenses and usually carried with them complete forfeiture of real and personal property and, at the time of his writings, the death penalty. Blackstone, 1723-1780 Commentaries on the Laws of England, Book 4, Chapter 7, at 54-56 (Lonang Press Electronic Ed. 2005). As deleterious as possessing and even using a controlled substance might be, even to this day we do not think of it as so severe as to warrant death or complete forfeiture of all property. So, if we were to consider the historical support of declaring the possession of a controlled substance to be like a felony under common law, we would find an absence of such support.
{¶ 62} Moreover, a state-by-state standard (rather than one grounded in history and tradition) for evaluating whether a state can eliminate a federal right would also undermine other federal provisions such as
In his concurrence in Rahimi, Justice Kavanaugh remarked that history, not policy, is the proper guidance for ascertaining the meaning of vague constitutional text. Rahimi, 144 S.Ct. at 1912. Thus, whether an offense permits a state to disarm a citizen turns on the history and tradition of disarming in similar offenses–not state policy preferences. And as discussed above and again below, when examining Ohio‘s history of firearm regulations, there is no such history and tradition to support disarming and then convicting Skaggs.
The Rights Secured by the Second Amendment Cannot be Circumscribed Merely Because R.C. 2923.14 Would Restore the Right to Keep and Bear Arms in Some Instances
{¶ 63} The state‘s third argument to sustain the conviction is that Ohio‘s relief from disability statute (
{¶ 64} Even if we assume for the sake of argument that such a conviction allowed the state to prohibit firearm possession at the first instance, the statutory scheme still runs afoul of the
{¶ 65} We are first faced with Rahimi‘s holding that emphasized the prohibition on the possession of firearms was temporary. Beyond that holding, a theme that can be discerned from the history and tradition analyzed in cases like Connelly and Daniels, is that when the conduct giving rise to the lawful prohibition abates, so too does the prohibition. And the examination of history and tradition in Duarte, Range v. Attorney General United States of America, 69 F.4th 96, 98 (3d Cir. 2023), Diaz, and even Williams supports the conclusion that not every felony conviction is constitutionally sufficient to permanently disarm a person such as Skaggs.
{¶ 66} At least one instance from our history would suggest permanent prohibitions on firearm possession for serious crimes are not a part of the American history and tradition of firearm regulations. On August 29, 1786, Shays‘s Rebellion began with the seizure of the Northampton Courthouse. Other courts were then seized in an apparent effort to forestall foreclosures. Then on January 26, 1787, Captain Daniel Shays and about 1,500 men planned to raid the Springfield Armory. A militia responded and the event ended on February 4th with the mob dispersed. In that same month, the Massachusetts legislature passed the Disqualification Act. Massachusetts Acts and Session Laws, January 1787, at 555-558. This act barred the participants from bearing arms for three years and required them to temporarily surrender their firearms.
{¶ 68} So, even if it is true that some convictions allow the state to lawfully extend a prohibition on the possession of firearms for some period of time beyond a felon‘s completed sentence,
{¶ 69} The first reason is
{¶ 70} Beyond that issue is the greater issue of
{¶ 71} Of course, a state may enact a statutory scheme that allows individuals to receive their right to keep and bear arms back after a type of conviction that may constitutionally allow lengthy bans; nothing stops a state from giving broader rights than secured by the
{¶ 72} Thus, I conclude even if the state could disarm Skaggs prior to his final release and even for some fixed period afterwards, the discretionary nature of
The History and Tradition of Article IV, Section 4 of the Ohio Constitution Also Supports Finding R.C. 2923.13 Unconstitutional
{¶ 73} In addition to the history and tradition reviewed in the federal cases under consideration here, Ohio‘s history and tradition also supports the conclusion that
{¶ 74} At the threshold, we should observe that there is a reasonably close temporal proximity between when the
{¶ 75} In that first constitution, we entered the union with an individual right to bear arms. Ohio‘s 1802 constitution, art VIII, § 20 said this: “That the people have the right to bear arms for the defense of themselves and the state; and as standing armies in time of peace are dangerous to liberty, they shall not be kept: and that the military shall be kept under strict subordination to the civil power.”
{¶ 76} We also know that the drafters of that constitution turned to recently enacted state constitutions: namely the 1790 Pennsylvania Constitution, the 1796 Tennessee Constitution, and the 1799 Kentucky Constitution. John D. Barnhart, Valley of Democracy: The Frontier versus the Plantation in the Ohio Valley, 1775-1818, at 157-158 (Bloomington: Indiana University Press, 1953). In fact, 87 of the 106 sections of Ohio‘s Constitution bear a strong similarity to those three constitutions, with over half of those borrowed provisions coming from Tennessee. Id.
{¶ 77} All three of those constitutions contained text protecting the right to bear arms. In comparing Ohio‘s Constitution to those three other states, our provision protecting the right to bear arms is similar to all three, but it is strikingly similar to the 1780 Massachusetts Constitution with two changes. The first was to make explicit our constitution was protecting an individual right to bear arms. Compare Commonwealth v. Davis, 369 Mass. 886 (1976). The second change was to prohibit the creation of standing armies altogether, not just subject its creation to legislative authority.
{¶ 79} A hundred years ago, the Supreme Court of Ohio had the opportunity to consider the meaning of that text. State v. Hogan, 63 Ohio St. 202 (1900). In considering whether a “tramp” could be properly disarmed, the Court held the following at 218-219:
The constitutional right to bear arms is intended to guaranty to the people, in support of just government, such right, and to afford the citizen means for defense of self and property. While this secures to him a right of which he cannot be deprived, it enjoins a duty in execution of which that right is to be exercised. If he 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 find no vindication in the bill of rights. That guaranty 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.
{¶ 80} The Court‘s analysis of the common law rule against going armed so as to terrify others and Sir John Knight‘s case is quite similar to the lengthy analysis done by the Supreme Court of the United States in Bruen and its shorter analysis in Rahimi. Thus, it can be fairly said we have understood that relatively narrow restriction grounded in the common law tradition to inform our state right to bear arms. That tradition that may support a narrow restriction on the right to carry or bear arms does not include complete and permanent prohibitions on bearing arms for nonviolent criminal offenses. My view on the narrowness arising from that tradition finds support in a later Supreme Court case too.
{¶ 81} Twenty years later, the Supreme Court of Ohio returned to
{¶ 82} He was understandably concerned about the Court‘s dicta on this matter. And as it turns out, his (correct) view on this matter was later vindicated by the
I desire to give some special attention to some of the authorities cited, Supreme Court decisions from Alabama, Georgia, Arkansas, Kentucky, and one or two inferior court decisions from New York, which are given in support of the doctrines upheld by this court. The Southern States have very largely furnished the precedents. It is only necessary to observe that the race issue there has extremely intensified a decisive purpose to entirely disarm the negro, and this policy is evident upon reading the opinions.
{¶ 83} This court has expressed similar concerns about the use of laws and precedents rooted in racist motives to disarm our fellow citizens. Striblin, 2024-Ohio-2142, at ¶ 25. See also McDonald v. City of Chicago, Ill., 561 U.S. 742, 772-776 (2010) (The Court reviewed the history of the local disarmament of freed slaves in the Reconstruction). From time to time there will be disfavored groups of people and protecting the rights of those least favored among us is not only required by our society‘s commitment to equal protection of the laws, but serves to protect the rights of us all. We would do well to remember that when considering the scope of the constitutional rights bequeathed to us from our ancestors.
{¶ 84} Returning to the application of the Court‘s opinion in Nieto to the issue before this court, the Court was explicit that the statute was not a prohibition on bearing
{¶ 85} About 90 years after Justice Wanamaker‘s dissent, the Supreme Court of Ohio returned to the question of criminalizing concealed carry in the Klein case. The Court held that while the right is fundamental under our constitution, it followed the general reasoning of Nieto, i.e., the state can regulate the manner of carrying firearms. Klein, 2003-Ohio-4779, at ¶ 13. The Court also observed that the concealed carry prohibition had been in place since 1859. Id. at ¶ 9. In a single paragraph, the Court curtly upheld the statute under a reasonableness standard. In response, then-Justice O‘Connor dissented, joined by Justice Lundburg Stratton. In her dissent, Justice O‘Conner took the Court to task for using a rational basis standard. Id. at ¶ 22. She also found that the statute was infirm because it required a fundamental right to be asserted as an affirmative defense. Id. at ¶ 30.
{¶ 86} Like Justice Wanamaker before her, Justice O‘Conner was later vindicated. Shortly after the Court‘s opinion was announced, the legislature implemented the shall issue concealed carry regime now in place. And the Supreme Court of the United States later agreed with her in large measure in both Heller and the McDonald case.
{¶ 87} Despite a very similar history and tradition informing both amendments, the text of Ohio‘s amendment plainly supports an individual right to bear arms for personal defense and security. We should not read out of our own history and tradition a key textual
{¶ 88} One final aspect of Klein is relevant to the analysis here. As stated above, in upholding
{¶ 89} In 1972, as part of a larger recodification in H.B. 511,
{¶ 91} As the judiciary, it is our duty to say what the law is. See Marbury v. Madison, 5 U.S. 137 (1803). Our oath is to the constitution. And that duty requires us to sometimes say a statute cannot stand against a constitution. Id. at 178. The purpose of
{¶ 92} Chief Justice Marshall said to permit to the legislature that which is forbidden would “subvert the very foundation of all written Constitutions.” Id. For all these reasons, I dissent.