THE STATE OF OHIO, APPELLEE, v. WEBER, APPELLANT.
No. 2019-0544
Supreme Court of Ohio
December 23, 2020
Slip Opinion No. 2020-Ohio-6832
O‘CONNOR, C.J.
Submitted February 25, 2020. APPEAL from the Court of Appeals for Clermont County, No. CA2018-06-040, 2019-Ohio-0916.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Weber, Slip Opinion No. 2020-Ohio-6832.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2020-OHIO-6832
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Weber, Slip Opinion No. 2020-Ohio-6832.]
Criminal law—Second Amendment—
{¶ 1} It has been illegal to carry a firearm while intoxicated in Ohio since 1974.
I. BACKGROUND
{¶ 2} At 4:00 a.m. on February 17, 2018, appellant, Frederick Weber, was very intoxicated and holding a shotgun. His wife called 9-1-1. Deputy Christopher Shouse and Sergeant Mark Jarman were dispatched to Weber‘s house. When they arrived, Weber‘s wife told them, “Everything is okay, he put it away.” But when Shouse stepped inside the house, he encountered Weber still holding the shotgun by the stock with one hand. Shouse ordered him to drop the gun. Shouse also heard Weber say, in slurred speech, that the firearm was not loaded.
{¶ 3} Shouse attempted to assess Weber‘s sobriety by performing a field sobriety test, but Weber could not complete the test because he was unable to follow Shouse‘s directions. Shouse also noticed the smell of alcohol on Weber, and Weber admitted several times that he was drunk. According to Shouse, Weber was “very intoxicated.” When Shouse asked Weber why he had the shotgun, Weber seemed confused and could not give a definitive answer. Shouse picked the shotgun up and determined that it was unloaded. Weber later claimed that he was unloading the shotgun to wipe it down.
{¶ 4} Jarman observed that Weber‘s speech was slurred and his eyes were glassy and bloodshot. Weber was also unstable on his feet. According to Jarman, “he was actually swaying while [Shouse] had him in the instruction position.” Jarman described Weber as “[v]ery impaired” and “highly intoxicated.”
{¶ 5} Weber was charged with violating
{¶ 6} Weber raised four propositions of law in a discretionary appeal to this court. We accepted three for review. See 156 Ohio St.3d 1452, 2019-Ohio-2780, 125 N.E.3d 941.
Proposition 1: “The using a weapon while intoxicated statute is unconstitutional as applied to the facts of this case.”
Proposition 2: “Where a challenge is made that a statute unconstitutionally impinges on the fundamental right to bear arms, review is undertaken employing a strict scrutiny standard.”
Proposition 3: “Under any of the standards of scrutiny applied to enumerated constitutional rights, a prohibition of having firearms while intoxicated
in the home—where [the need for] defense of self, family and property is most acute—fails [to pass] constitutional muster.”
In all three propositions, Weber argues that
II. APPLICABLE LAW
{¶ 7} The constitutionality of a statute is a question of law that we consider de novo. See Cleveland v. State, 157 Ohio St.3d 330, 2019-Ohio-3820, 136 N.E.3d 466, ¶ 15.
A. District of Columbia v. Heller
{¶ 8} The Second Amendment provides that “[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 United States Supreme Court held in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), that the Second Amendment protects a person‘s right to possess and carry weapons for self-defense. But the court did not hold in Heller that every regulation impairing the possession or carrying of weapons in some way is automatically unconstitutional. Heller makes it clear that “[l]ike most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626.
{¶ 9} The Supreme Court emphasized that “nothing in [the opinion] should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 626-627. The court also made clear that it does not “suggest the invalidity of laws regulating the storage of firearms to prevent accidents.” Id. at 632. And the court recognized “another important limitation on the right to keep and carry arms,” id. at 627: the Second Amendment protects only the sort of weapons in common use at the time of the Amendment and only when such a weapon is used “for lawful purposes like self-defense,” id. at 626.
{¶ 10} After this discussion of the Second Amendment, the court turned to the statute at issue in the case. The District of Columbia had generally prohibited the possession of handguns and required even lawfully owned firearms, such as registered long guns, to be “unloaded and dissembled or bound by a trigger lock or similar device” unless they were located in a place of business or were being used for lawful recreational activities, former D.C.Code 7-2507.02, 23 D.C.Reg. 2464 (Sept. 24, 1976). The majority observed that the law “totally ban[ned] handgun possession in the home” and required any lawful firearm in the home to be rendered inoperable. Heller at 628. The law therefore barred ” ‘the most preferred firearm in the nation’ ” from being used in self-defense of ” ‘one‘s home and family.’ ” Id. at 628-629, quoting Parker v. District of Columbia, 478 F.3d 370, 400 (D.C.Cir.2007). Such a “severe restriction,” id. at 629, the court held, violated the Second Amendment “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights,” id.
{¶ 11} The majority also acknowledged that because the case represented the Supreme Court‘s “first in-depth examination of the Second Amendment, one should not
{¶ 12} Subsequently, the court held that the Second Amendment right recognized in Heller is applicable to the states. McDonald v. Chicago, 561 U.S. 742, 791, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).
B. Cases since Heller: the two-step framework
{¶ 13} After Heller was decided, one of the main tasks for courts presented with Second Amendment challenges to firearm regulations was deciding which analytical framework to use. Over the past 12 years, courts have converged on a two-step framework to decide Second Amendment cases. Kolbe v. Hogan, 849 F.3d 114, 132-133 (4th Cir.2017) (en banc) (identifying decisions from the Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits applying the two-step approach); Gould v. Morgan, 907 F.3d 659, 669 (1st Cir.2018) (adopting the two-step approach after Kolbe was decided).
{¶ 14} In the first step of the framework, courts ask whether ” ‘the challenged statute “regulates activity falling outside the scope of the Second Amendment right as it was understood at the relevant historical moment,” ’ ” namely, the ratification of the Bill of Rights in 1791 or of the Fourteenth Amendment in 1868. Stimmel v. Sessions, 879 F.3d 198, 204 (6th Cir.2018), quoting United States v. Greeno, 679 F.3d 510, 518 (6th Cir.2012), quoting Ezell v. Chicago, 651 F.3d 684, 702-703 (7th Cir.2011). If the regulation falls outside the scope of the Second Amendment, the “inquiry is complete,” and the law cannot be determined to violate that Amendment. United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010); accord Stimmel, 879 F.3d at 204.
{¶ 15} If the reviewing court moves on to the second step, it should “determine and apply the appropriate level of heightened means-end scrutiny” based on whether and how severely a particular law burdens the core Second Amendment right.1 Stimmel, 879 F.3d at 204; see also Natl. Rifle Assn. of Am., Inc. v. Bur. of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185 (5th Cir.2012) (“In harmony with well-developed principles that have guided our interpretation of the First Amendment, we believe that a law impinging upon the Second Amendment right must be reviewed under a properly tuned level of scrutiny—i.e., a level that is proportionate to the severity of the burden that the law imposes on the right“).
{¶ 16} If the challenged law does not severely burden the core of the Second Amendment‘s protections, the court should apply intermediate scrutiny. See United States v. Chester, 628 F.3d 673, 680-683 (4th Cir.2010). Or, as the Sixth Circuit has put it, “in choosing to apply intermediate scrutiny, we are ‘informed by “(1) ‘how close the law comes to the core of the Second Amendment right,’ and (2) ‘the severity of the law‘s burden on the right.’ ” ’ ” Stimmel, 879 F.3d at 206, quoting Tyler v. Hillsdale Cty. Sheriff‘s Dept., 837 F.3d 678, 690 (6th Cir.2016) (lead opinion), quoting United States v. Chovan, 735 F.3d 1127, 1138 (9th Cir.2013), quoting Ezell at 703. Under intermediate scrutiny,
long as it furthers an important governmental interest and does so by means that are substantially related to that interest. Chester, 628 F.3d at 683. E.g., United States v. Yancey, 621 F.3d 681 (7th Cir.2010) (upholding
{¶ 17} If, however, a statute imposes a severe burden on the core of the Second Amendment right, the court should apply strict scrutiny. See Marzzarella, 614 F.3d at 96-97. Under strict scrutiny, the statute is constitutional if it furthers a compelling governmental interest and the state‘s chosen means are narrowly tailored to advance that interest. Fed. Election Comm. v. Wisconsin Right to Life, Inc., 551 U.S. 449, 464, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007). E.g., Marzzarella, 614 F.3d at 100-101 (upholding a federal law prohibiting possession of a firearm with an obliterated serial number under strict scrutiny because the law furthered a compelling governmental interest by assisting law enforcement in the investigation of crimes and the law was narrowly tailored to achieve that objective, because it applied only to weapons made less susceptible to tracing).
III. ANALYSIS
A. The appropriate test for challenges to firearm regulations under the Second Amendment
{¶ 18} In his initial brief, Weber argues that this court should judge the constitutionality of
{¶ 19} We believe that the two-step framework provides the appropriate test for Second Amendment challenges to firearm regulations, and we therefore apply it.2 The two-step framework also leaves room for us to consider Weber‘s arguments that strict scrutiny should be applied to his claim and that intoxication is not a “legal disqualification” from the protections of the Second Amendment.
B. The constitutionality of R.C. 2923.15 under the Second Amendment
1. Step one: does R.C. 2923.15 place a burden on activity within the scope of the Second Amendment?
{¶ 20} The state argues that
{¶ 21} Weber argues that
{¶ 22} Although there may be good reason to find that Weber‘s challenge to
2. Step two: is R.C. 2923.15 unconstitutional based on the application of heightened means-end scrutiny?
a. The constitutionality of R.C. 2923.15 should be judged using intermediate scrutiny
{¶ 23} Weber argues that
{¶ 24} We are not persuaded by this argument. Harrold did not involve a Second Amendment challenge to a firearm regulation. It involved a parent‘s claim that Ohio‘s nonparental-visitation statutes “unconstitutionally infringe on a parent‘s fundamental right to make decisions concerning the care, custody, and control of his or her child,” id. at ¶ 13, a right that is protected by the Due Process Clause of
{¶ 25} Weber also appears to argue that strict scrutiny is warranted in this as-applied challenge because he was in his home at the time he carried the shotgun while intoxicated and the home is a place where the Second Amendment‘s protections are at their highest. We disagree.
{¶ 26} It is no doubt true that the core protection of the Second Amendment at issue here is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” (Emphasis added.) Heller, 554 U.S. at 635. But identifying that as the core of the Second Amendment right is the beginning of the inquiry at this point, not the end. As noted above, the level of scrutiny is determined based on how close a particular law comes to the core Second Amendment right and whether it imposes a severe burden on that right. A court should apply intermediate scrutiny if the challenged law either does not come close to the core of the right or imposes only a slight burden on the right. But if the law imposes a severe burden on the core of the Second Amendment, it should be judged using strict scrutiny.
{¶ 27}
{¶ 28} The facts of this case establish a high level of intoxication. According to the deputies who arrived at his house, Weber was visibly “very” and “highly” intoxicated, smelled of alcohol, and spoke with slurred speech. He also had bloodshot and glassy eyes, was swaying from side to side, and could not even follow the directions given to him for a field sobriety test. It cannot reasonably be denied that Weber‘s choice to drink until he was so highly intoxicated had a detrimental impact on his ability to engage in self-defense, had it been necessary for him to do so, and that impact is what brings him within the scope of
{¶ 29}
{¶ 30} We also find it relevant that numerous courts have applied intermediate scrutiny to regulations on guns—lifetime prohibitions on certain individuals possessing a gun—that are far broader and more burdensome than is
b. R.C. 2923.15 is constitutional under intermediate scrutiny
{¶ 31} Under intermediate scrutiny, a statute is constitutional so long as it furthers an important governmental interest and does so by means that are substantially related to that interest. Chester, 628 F.3d at 683.
{¶ 32} Weber argues that
{¶ 33} We agree with the state that
{¶ 34} The facts here create a case in point in which such harm might have occurred. Weber picked up a shotgun while heavily intoxicated, which caused his wife to call 9-1-1. Whether due to Weber‘s reduced inhibitions or impaired motor skills, Weber‘s wife perceived a great enough risk to herself or to Weber to make an emergency call. That risk was then extended to the two deputies who rushed to the scene at 4:00 a.m., knowing only that an intoxicated man had a gun and that his wife needed their help.
{¶ 35} It is also not hard to imagine other examples of the kind of harm the General Assembly has an interest in preventing:
- an intentional shooting of a friend, coworker, police officer, or other innocent person due to reduced inhibitions, impulsivity, or a mood change caused by intoxication;
- a suicide facilitated by reduced inhibitions, impulsivity, or a depressed mood caused by
intoxication; - an accidental shooting by an intoxicated person handling a gun who incorrectly believes the gun is unloaded, or who accidentally pulls the trigger, due to impaired cognitive functions or motor skills caused by intoxication;
- an accidental shooting involving a person who mistakes a loved one arriving home for an intruder due to impaired cognitive functions caused by intoxication; and
- a shooting by a police officer of an intoxicated person who accidentally or intentionally points a gun at the officer due to impaired cognitive functions or motor skills caused by intoxication.
Each of these examples has happened in a home with tragic results.
{¶ 36} The bases for the government‘s interest are more than merely anecdotal, as amici curiae Giffords Law Center to Prevent Gun Violence and Brady Center to Prevent Gun Violence point out. Research shows that “people who abuse alcohol or illicit drugs are at an increased risk of committing acts of violence.” Webster & Vernick, Keeping Firearms from Drug and Alcohol Abusers, 15 Injury Prevention 425 (2009). The victims of such violence are often a gun owner‘s family members or the gun owner himself. For example, “[d]rug and alcohol use by domestic abusers has been strongly linked with the perpetration of fatal and non-fatal domestic violence.” Id. at 425. “[A]n overwhelming proportion (70%) of [intimate-partner] homicide perpetrators were under the influence of substances when the crime occurred, * * * and the use of alcohol is a strong predictor of intimate terrorism of women.” Darryl W. Roberts, Intimate Partner Homicide: Relationships to Alcohol and Firearms, 25 J.Contemp.Crim.Just. 67, 70 (2009). Studies show that there is a strong correlation between heavy drinking and self-inflicted injury, including suicide, from a firearm. See Branas, Han & Wiebe, Alcohol Use and Firearm Violence, 38 Epidemiologic Reviews 32, 36 (2016). The amici curiae cities also point out in their brief that “[f]or men, deaths from alcohol-related firearm violence equal those from alcohol-related motor vehicle crashes.” Garen Wintemute, Alcohol Misuse, Firearm Violence Perpetration, and Public Policy in the United States, 79 Preventive Medicine 15 (2015).
{¶ 37} Even Remington Arms, a gun manufacturer that has been in business for over 200 years, embraces the concern as part of its Ten Commandments of Firearm Safety: “Alcohol, drugs and guns are a deadly combination. * * * A staggering percentage of the shooting accidents that occur every year involve alcohol or drugs.” Remington Arms Company, Ten Commandments of Firearm Safety, available at https://www.remington.com/support/safety-center/ten-commandments-firearm-safety (accessed Sept. 25, 2020) [https://perma.cc/NCD7-TDWB].
{¶ 38} Courts have also long recognized a state‘s legitimate interest in preventing those impaired by alcohol or by drugs from using guns. See State v. Waterhouse, 7th Dist. Belmont No. 93-B-26, 1995 WL 70125, *2 (Feb. 16, 1995); People v. Wilder, 307 Mich.App. 546, 561, 861 N.W.2d 645 (2014); Gibson v. State, 930 P.2d 1300, 1302 (Alaska App.1997); Roberge v. United States, E.D.Tenn. Nos. 1:04-cr-70 and 1:10-cv-273, 2013 WL 4052926, *18 (Aug.12, 2013).
{¶ 39}
{¶ 40} We also reject Weber‘s argument that the governmental interest in preventing harm from the combination of guns and alcohol is lower with respect to conduct occurring inside a home because the need for a gun for self-defense is most acute in the home. “The danger to innocent persons is the same whether the intoxicated person is inside his home or in a public place.” Waterhouse at *2. This argument also confuses the governmental-interest inquiry with the burden inquiry. We already considered the centrality of the home to the Second Amendment when deciding what level of scrutiny to apply, and that decision affected how strong of a governmental interest the state is required to show. If the law burdened the core of the right—self-defense in the home—or otherwise imposed a severe burden on the right, we would apply strict scrutiny and require the state to show that the law furthers a compelling governmental interest. But because we find only a slight burden at best, the law requires the state to meet a lower standard: an important governmental interest. There is simply no basis for finding that the governmental interest here is less strong because it regulates conduct in the home when that governmental interest is being furthered through a statute that regulates only the conduct of persons whose ability to engage in self-defense in the home has been diminished by their decision to become intoxicated.
{¶ 41} To the extent that Weber‘s argument is based on a more general notion that the home is a private place and the government therefore has less of an interest in regulating what people do there, we reject that argument too. We cannot consider the conduct regulated by
{¶ 42} We similarly reject the contention that because
{¶ 43} The fact that
{¶ 44} This conclusion is not changed by the facts that Weber‘s shotgun was unloaded when the deputies arrived and no harm was caused to anyone in this particular case. First, Shouse testified that Weber told him he was unloading the shotgun to wipe it down, and Weber confirms this statement in his brief. This indicates that Weber‘s shotgun was loaded when he first picked it up. Such conduct is plainly dangerous. Second, the fact that Weber may have unloaded the shotgun while intoxicated without shooting anyone in this particular case does not diminish the General Assembly‘s important interest in preventing harm through
{¶ 45} We also note that courts upholding far broader and more burdensome laws—lifetime prohibitions on certain individuals possessing guns—have not found that it made a difference that the laws were applied in the home or to unloaded guns. See, e.g., Stimmel, 879 F.3d at 206 (upholding complete prohibition on gun possession by individuals previously convicted of a misdemeanor crime of domestic violence); Yancey, 621 F.3d at 683 (upholding complete prohibition on gun possession by a person who is “an unlawful user of or addicted to any controlled substance“); Williams, 616 F.3d at 692-693 (upholding complete prohibition on gun possession by convicted felons).
{¶ 46} Finally, major American gun manufacturers and the National Rifle Association agree that it is unsafe to carry a gun while intoxicated, and they do not make any distinction based on whether one is at home or the gun is unloaded. See Sturm, Ruger & Company, Basic Safety Rules (“Avoid alcoholic beverages or drugs when shooting or handling a gun“), available at https://www.ruger.com/safety/basicSafetyRules.html (accessed Sept. 25, 2020) [https://perma.cc/82N9-4TFZ]; Remington Arms Company, at First Commandment (“Treat every gun as if it were loaded“), available at https://www.remington.com/support/safety-center/ten-commandments-firearm-safety (accessed Sept. 25, 2020) [https://perma.cc/NCD7-TDWB]; Browning, Firearms Safety Depends on You at 2 (“Alcohol * * * & guns don‘t mix“), available at https://www.browning.com/content/dam/browning/support/safety-recall/FSDOY.pdf
{¶ 47}
C. The constitutionality of R.C. 2923.15 under the Ohio Constitution
{¶ 48} Weber states in passing that
IV. THE DISSENTING OPINION
{¶ 49} The dissenting opinion argues that we should reverse the judgment of the Twelfth District Court of Appeals and remand the matter for further proceedings on the ground that the court of appeals reviewed Weber‘s argument using what the dissenting opinion believes is the wrong test. That approach is plainly wrong. We review judgments, not reasons. State v. Lozier, 101 Ohio St.3d 161, 2004-Ohio-732, 803 N.E.2d 770, ¶ 46 (“A reviewing court is not authorized to reverse a correct judgment merely because it was reached for the wrong reason“); Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, 284, 58 N.E.2d 658 (1944) (same). This is not a controversial principle: we recognized it as early as 1846. See Harman v. Kelley, 14 Ohio 502, 507 (1846). The United States Supreme Court recognized it at least a quarter of a century before that. See McClung v. Silliman, 19 U.S. 598, 603, 5 L.Ed. 340 (1821) (“The question before an appellate Court is, was the judgment correct, not the ground on which the judgment professes to proceed” [emphasis sic]). For this reason, nothing in the dissenting opinion can be considered to be part of any holding of this court. It has no controlling effect. At most, it signals how the dissenting justices might view the next case that presents a Second Amendment challenge. But it does not establish legal precedent.
{¶ 50} It is also clear that the dissenting opinion would simply give Weber a second bite of the apple. Although it states that it is simply trying to be fair by “[g]iving the parties the chance to brief and argue” the appropriate test for Second Amendment cases (emphasis added), dissenting opinion at ¶ 125, the parties did have the chance to
argued only that we should decide this case based on the basic holding of Heller or after applying strict scrutiny.
{¶ 51} The dissenting opinion also states that “it is worth reminding both parties that * * * each side would need to marshal significant historical evidence in support of their understanding of the Second Amendment.” (Emphasis added.) Dissenting opinion at ¶ 126. But again, the state and amici curiae did provide a substantial amount of historical material in support of their argument that the court of appeals’ judgment was correct under the text-history-and-tradition approach preferred by the dissenting opinion. Weber presented no such argument.
{¶ 52} There is, therefore, no reason for the dissenting opinion to give Weber a second chance to argue this case. And it would be particularly improper to do that while simultaneously giving him instructions on how he should argue the case the second time around, as the dissenting opinion does. The dissenting opinion even preemptively labels certain statements in Heller as dicta, apparently oblivious to the fact that doing so without addressing the correctness of the court of appeals’ judgment is itself dicta.
{¶ 53} Lastly, the dissenting opinion does not really explain what it means to judge
{¶ 54} More generally, how would the dissenting opinion address the concern that historical evidence can be viewed in different ways by different people? How would it deal with an argument that changed circumstances make reliance on certain Framing Era practices unjustified? Would it reject that notion reflexively on the ground that modern concerns are wholly irrelevant under the text-history-and-tradition-based approach? Or does it acknowledge that present-day judgments have a role to play? {¶ 55} The dissenting opinion provides no guidance on these important questions, and there are many more such questions. (Does one simply look for an historical analogue to the law at issue? And if analogues exist, how widespread must they be? How does one deal with modern technologies and circumstances that did not exist at the time of the Founding? We could go on.) The dissenting opinion would simply give Weber a second change to litigate his claim, with guidance on how to win. Nothing about the dissenting opinion reflects a principled approach to deciding this case.
V. CONCLUSION
{¶ 56} For the reasons explained above, we affirm the judgment of the Twelfth District Court of Appeals.
Judgment affirmed.
DONNELLY and STEWART, JJ., concur.
DEWINE, J., concurs in judgment only, with an opinion.
FISCHER, J., dissents, with an opinion joined by KENNEDY and FRENCH, JJ.
{¶ 57} The question presented in this case is whether there is a constitutional right to be drunk and handle a firearm. Or, can the government say: you‘re allowed to be drunk and you have a right to handle a firearm—you just can‘t do both at the same time. Based on the original understanding of the
I. The Lead Opinion Fails to Follow the Analytical Framework Established by the United States Supreme Court in Heller v. District of Columbia
{¶ 58} The text of the
A. In Heller, the United States Supreme Court Looked to Text, History, and Tradition to Determine the Scope of the Right
{¶ 59} In District of Columbia v. Heller, 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court held that “on the basis of both text and history,” the
{¶ 60} First, the court looked to English history and the Declaration of Rights of 1689. Id. at 593-595. Second, the court examined contemporary sources from the time of the founding. These included arguments made during the ratification debates, id. at 598-599, state constitutional provisions in the period between independence and the ratification of the Bill of Rights, id. at 601-602, and “Second Amendment analogues” adopted in nine states between 1789 and 1820, id. at 602-604. Third, the court considered “how the
{¶ 61} Based on its survey of text, history, and tradition, the court concluded that the
{¶ 62} Subsequently, in McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), the Supreme Court applied the same text-history-and-tradition approach to a Chicago firearms ban. It held that the
B. The Lead Opinion Improperly Applies Intermediate Scrutiny
{¶ 63} The lead opinion begins by discussing the Supreme Court‘s decision in Heller. But rather than follow the lead of Heller and decide this case by using text, history, and tradition, it opts to apply a two-step test. In the first step, the lead opinion asks whether the restriction places a burden on activity within the
{¶ 64} In my view, the intermediate-scrutiny test employed by the lead opinion is inconsistent with Heller and McDonald and insufficiently protective of the
The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. * * * The
Second Amendment * * * is the very product of an interest balancing by the people—which Justice Breyer would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
(Emphasis sic.) Id. at 634-635.
{¶ 65} There can be little question that the court meant what it said about interest balancing in Heller because it made the same point in McDonald: “Municipal respondents assert that [state-constitution protections of firearm rights] are subject to ‘interest balancing’ and [state courts] have sustained a variety of restrictions. * * * In Heller, however, we expressly rejected the argument that the scope of the
{¶ 66} It is true that in Heller, the court said that the D.C. ban would be unconstitutional under any of the traditional standards of scrutiny. Heller at 628-629. And it is also true that in the years since Heller, many federal circuit courts have adopted a test similar to that employed by the lead opinion with intermediate scrutiny applied at the second step. See lead opinion at ¶ 13-17 (collecting cases). But read in context, the Supreme Court‘s comment in Heller “was more of a gilding-the-lily observation about the extreme nature of D.C‘s law—and appears to have been a pointed comment that the dissenters should have found D.C.‘s law unconstitutional even under their own suggested balancing approach—than a statement that courts may or should apply strict or intermediate scrutiny in
{¶ 67} The disconnect between Heller and the approach used by these federal courts (and the lead opinion today) has not gone unnoticed by members of the United States Supreme Court. Justice Thomas, in a dissent joined by Justice Kavanaugh, has complained that “many courts have resisted our decision in Heller and McDonald” and “[i]nstead of following the guidance provided in Heller” have “self-created” an analytical vacuum that they have filled with a two-step test that “incorporates tiers of scrutiny on a sliding scale.” Rogers v. Grewal, ___ U.S. ___, ___, 140 S.Ct. 1865, 1866, 207 L. Ed. 2d 1059 (2020) (Thomas, J. dissenting to the denial of certiorari).
{¶ 68} In the same vein, a number of federal jurists have argued persuasively for application of the text-history-tradition approach employed by Heller rather than an interest-balancing test. See, e.g., Heller II at 1271 (Kavanaugh, J., dissenting) (”Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny“); Tyler v. Hillsdale Cty. Sheriff‘s Dept., 837 F.3d 678, 703-704 (6th Cir.2016) (“Tyler II“) (Batchelder, J., concurring in part), quoting Heller at 634 (“in embracing an approach largely divorced from the text, history, and tradition of the
{¶ 69} Thus, rather than jump to a balancing test, we should look at text, history, and tradition. If the government regulation burdens conduct that was not understood to fall within the scope of the right, then the
{¶ 70} So rarely, if ever, will we need to resort to an interest-balancing test to resolve a
{¶ 71} Thus, I would apply the analytical framework endorsed by the Heller court and decide Weber‘s claim that his
II. Weber Challenges R.C. 2923.15(A) as Applied to Him
{¶ 72} Weber advances an “as applied” challenge. That is, he does not contend that the law is unconstitutional as written but rather that its application to him “‘in the particular context in which he has acted‘” is unconstitutional. State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 17, quoting Ada v. Guam Soc. of Obstetricians & Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting to the denial of certiorari). The salient facts are (1) that Weber was highly intoxicated, (2) that he was in his home with his wife, (3) that he was physically handling his firearm, (4) that while intoxicated Weber unloaded his weapon, and (5) that out of an apparent concern for her own safety, Weber‘s wife, sometime around 4:00 a.m., called 9-1-1 to summon law enforcement to the house. The question is whether under these facts Weber suffered a deprivation of a constitutional right.
{¶ 73} Even though Weber says that he is challenging the statute as applied, he repeatedly raises arguments that either are based on erroneous assumptions or relate to other hypothetical situations. For example, he says, “every person who is in their home and has a firearm in the home while (or after) consuming alcohol may be charged under the statute.” If that statement were true, I would likely agree that the statute was unconstitutional, at least as applied to someone who was prosecuted for simply having a weapon in the house while intoxicated. But it is not true. The statute under which Weber was prosecuted only makes it crime to “carry or use” a firearm while intoxicated, something Weber was plainly doing.
{¶ 74} Weber also contends that the statute conflicts with the castle doctrine and maintains that this case involves one‘s
{¶ 75} Nor do I understand Weber‘s emphatic claim that this is a case dealing solely with the handling of an unloaded weapon. Weber told the deputy who arrived on the scene that he was “unloading the firearm to wipe it down.” Maybe I‘m missing something, but I‘m pretty sure that the only way someone can “unload” a weapon is for the weapon to have been loaded.
{¶ 76} Weber cannot challenge the statute by arguing that “it would be unconstitutional if applied to third parties in hypothetical situations.” Ulster Cty. Court v. Allen, 442 U.S. 140, 1555, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), citing Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). The only thing that is relevant is whether the statute is unconstitutional in its particular application to Weber.
III. Applying the Heller Framework to R.C. 2923.15
{¶ 77} The question after Heller and McDonald is whether
A. R.C. 2923.15 Is Consistent with Restrictions on Firearms Ownership by the Mentally Ill
{¶ 78} In Heller, the Supreme Court placed “longstanding prohibitions on the possession of firearms by felons and the mentally ill” outside the scope of the
{¶ 79} Indeed, since Heller, there has been universal agreement that such restrictions are permissible under the
{¶ 80} If the government can restrict gun ownership by someone who is currently mentally ill without running afoul of the
{¶ 81} Indeed, the prohibition on gun handling by someone who is intoxicated is a much more limited restriction on the right than a restriction directed at the mentally ill. The ban is of a reduced duration: the drunk need only sober up to regain the ability to exercise the right. The ban is narrower in scope: under
{¶ 82} Also analogous to the restriction on handling a firearm while intoxicated is the federal ban on gun possession for someone “who is an unlawful user of or addicted to any controlled substance.” See
{¶ 83} Weber‘s primary complaint is that
{¶ 84} The analogy to mental illness presents a strong basis for upholding the restriction. But I agree with the dissent that it is important to look more deeply at history and tradition. Thus, it is worth exploring the historical explanations for the restrictions on firearms ownership by felons and the mentally ill.
B. The Understanding of the Second Amendment Right at the Time of its Enactment
{¶ 85} As Justice Scalia explained in McDonald, “[h]istorical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.” McDonald, 561 U.S. at 803-804 (Scalia, J., concurring). So at the outset, it is important to understand the scope of the historical inquiry. It seems clear that laws identical to
{¶ 86} Think about it this way. A casual glance at current practice can tell us that we (thankfully) do not yet live in a dystopian world in which the General Assembly has outlawed everything it could constitutionally outlaw. For instance, the legislature is not constitutionally prohibited from making it illegal to drive faster than 35 miles per hour on public highways, but fortunately it hasn‘t chosen to do so. If someone 100 years in the future looked back on the present era, noted that a great many things weren‘t outlawed, and drew the inference that those things were beyond the power of the General Assembly to outlaw, he would seriously misunderstand our current system of law. Thus, the historical analysis has to involve more than simply looking for founding-era equivalents to
{¶ 87} This point is driven home by the Supreme Court‘s recognition in Heller and McDonald of “presumptively lawful” restrictions on felons and the mentally ill. Heller, 554 U.S. at 627, fn. 26; McDonald at 786. Before 1791, “laws disarming the mentally ill * * * simply d[id] not exist.” Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J.
{¶ 88} Because of the lack of close historical analogues, courts and commentators have looked at the understanding of the
1. The Founding Generation Understood that the Right to Bear Arms Did Not Preclude Placing Restrictions on Classes of People Who Presented a Present Danger to Others
{¶ 89} There is considerable historical evidence that restrictions on firearm use by those who presented a present danger to others fell outside the
{¶ 90} I will only endeavor to briefly summarize the comprehensive historical
{¶ 91} The strongest evidence comes from debates and proposals at the state ratifying conventions. At the Pennsylvania convention, antifederalists proposed language preventing the government from disarming the people except for “‘crimes committed, or real danger of public injury from individuals.‘” (Emphasis added in Binderup). Binderup at 367, quoting The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, reprinted in 2 Schwartz, The Bill of Rights: A Documentary History 665 (1971). At the Massachusetts convention, Samuel Adams proposed an amendment that would have guaranteed the right to bear arms to the people of the United States “‘who are peaceable citizens.‘” (Emphasis in Binderup.) Id., quoting Journal of Convention: Wednesday February 6, 1788, reprinted in Debates and Proceedings in the Convention of the Commonwealth of Massachusetts Held in the Year 1788, at 86 (White 1856). At the time of the Massachusetts convention, “‘peaceable’ was defined as ‘[f]ree from war; free from tumult‘; ‘[q]uiet; undisturbed‘; ‘[n]ot violent; not bloody‘; ‘[n]ot quarrelsome; not turbulent.‘” Kanter at 455, quoting 1 Samuel Johnson, A Dictionary of the English Language (5th ed.1773). And at the New Hampshire convention, it was proposed that “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.” Binderup at 367, quoting 2 Schwartz at 761. “[T]aken together as evidence of the scope of founding-era understandings * * * [t]he concern common to all three [proposals] * * * is about threatened violence and the risk of public injury.” Kanter at 456, citing Binderup at 368. See also Binderup at 367, citing Halbrook, The Founders’ Second Amendment 190-215; id., quoting Halbrook at 196 (“surveying the debates at the ratifying conventions and identifying the commonplace understanding that ‘dangerous persons could be disarmed‘“).
{¶ 92} Restrictions in place before and during the founding era further support this understanding. Laws in place in 17th-century England allowed for the disarming of people who were thought to pose a threat to public safety. Kanter at 456-457; Binderup at 368. And “[s]imilar laws and restrictions appeared in the American colonies, adapted to the fears and threats of that time and place.” Kanter at 457; Binderup at 368. Thus, Judge Barrett was able to conclude that “[i]n sum, founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety.” Kanter at 458. See also Marshall, 32 Harv.J.L. & Pub.Pol‘y at 727-728 (concluding after a survey of English and colonial law that the right to bear arms was understood to be subject to restriction based upon “credible grounds for fearing that a member of [a class] would, if armed, pose a genuine present danger to others“); Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 Law & Hist.Rev. 139, 160 (2007) (classes of people thought by colonial-era governments to pose a danger through their use of guns were placed outside of the body politic entitled to the protection of the
{¶ 93} Moreover, even as to groups who were free from restrictions on the ownership of guns, colonial-era legislatures still placed restrictions on uses of weapons that posed a present danger to others. This is particularly relevant here
{¶ 94} As early as the mid-1600s, Virginia had passed a law imposing a fine on those who “shoot any guns at drinking.” Act of March 10, 1655, 1655 Va.Laws 401. Around the time of the founding, a Virginia law allowed the state to confiscate the arms of those who “ride armed by night [or] by day, in fair or markets, or in other places, in terror of the county.” An Act Forbidding and Punishing Affrays, 1786 Va.Laws 35. A New York ordinance prohibited the discharge of weapons “in any street, lane or alley, garden or other inclosure, or from any house, or in any other place where persons frequently walk.” An Act for the More Effectual Prevention of Fires in the City of New York, 1761-1775 N.Y.Laws 548 (1769). A 1771 New Jersey law made it illegal to “set any loaded Gun in such Manner, as that the same shall be intended to go off or discharge itself, or be discharged by any String, Rope or other Contrivance.” William Paterson, Laws of the State of New-Jersey 21 (1800). And, in the mid-1700s, several cities, including Philadelphia, New York, and Boston, prohibited the firing of weapons in the crowded cities altogether. Churchill, 25 Law & Hist.Rev. at 162. Eventually, Pennsylvania and New York extended this prohibition to all other towns. Id. Massachusetts and Delaware barred the presence of armed assemblies in public places, and Delaware‘s prohibition explicitly included polling places. An Act For Preventing And Suppressing Of Riots, Routs And Unlawful Assemblies, 1750 Mass. Acts 333, 339; Article XXVIII, Delaware Constitution (1776).
{¶ 95} Regulations on the storage and transport of gunpowder were expressly enacted for public safety. Cornell & DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L.Rev. 487, 510-512 (2004). Statutes set limits on the amount of gunpowder that could be stored in homes and dictated where and how it could be stored. Id. at 511-512. Pennsylvania, for example, mandated that gunpowder be stored on the top story of homes in the borough of Carlisle. An Act for Erecting the Town of Carlisle, in the County of Cumberland, into a Borough, Section XLII, 1781-1782 Pa.Laws 25. Some laws restricted the storage of firearms themselves. In Massachusetts, storing loaded firearms in a home in Boston was prohibited, and improper storage could lead to forfeiture. An Act in Addition to the Several Acts Already Made for the Prudent Storage of Gun-Powder within the Town of Boston, 1783 Mass.Acts 218. In Heller, the majority found the existence of such laws did not justify a complete ban on handguns, noting that such laws “do not remotely burden the right of self-defense as much as an absolute ban on handguns.” 554 U.S. at 632. But here the opposite is true. Forcing someone to keep his gunpowder (or today, ammunition) away from his firearm would impose a far greater burden on the right to self-defense than requiring Weber, who wasn‘t acting in self-defense, to refrain from handling his weapon until he sobered up.
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{¶ 96} There is compelling evidence that in the founding era, the Second Amendment would have been understood to allow disarming someone who posed a present danger to others. Plainly, someone who is intoxicated and wields a firearm falls into this category. There was a reason Weber’s wife felt it necessary to call 9-1-1.
2. Under a Rights-Based Approach, R.C. 2923.15 Is Consistent with the Second Amendment
{¶ 97} Another way to approach the historical inquiry is by focusing on the
{¶ 98} Because the Second Amendment protects “the right of the people to keep and bear arms” (emphasis added), it is worthwhile to examine the 18th-century understanding of the meaning of a right. At the time of the founding, “the idea of right was intimately connected with the idea of reason, a term that referred not only to the ‘faculty of the mind by which it distinguishes truth from falsehood [and] enables the possessor to deduce inferences from facts or from propositions,’ but also to the mind’s ability to distinguish ‘good from evil.’ ” (Brackets sic.) Tyler II at 704-705 (Batchelder, J., concurring), quoting 2 Noah Webster, An American Dictionary of the English Language (1828). Eighteenth-century theorists such as John Locke, Jean Jacques Burlamqui, and James Wilson all drew close connections between the exercise of a right and reason. Id. at 705. Locke, for example, described man’s natural state, in which he enjoyed all of his natural rights, “as a state of perfect freedom cabined only by ‘the law of nature,’ which he defined as the rule ‘of reason and common equity, which is that measure God has set to the actions of men, for their mutual security.’ ” (Emphasis deleted.) Id. at 705, quoting Locke, Two Treatises of Government (1691), reprinted in 4 Locke, The Works of John Locke 207, 342 (12th ed.1824).
{¶ 99} This understanding was widely accepted by the founding generation, who believed that “rights could, in the central case, be exercised only by those possessing reason.” Id. at 705; see also Mai v. United States, 974 F.3d 1082, 1089 (9th Cir.2020) (“influential philosophers of the [founding era] understood that rights attach with the attainment of ‘reason’ and correspondingly, the loss of rights persisted only through the loss of reason“) (Bumatay, J., dissenting from the denial of rehearing en banc). Thus, insane persons or minors who had not obtained the age of reason could not exercise all of their natural rights because they lacked the reason by which to do so. Id. By the same token, “an insane person could not justly be subjected to many of the obligations that corresponded to those rights, such as criminal liability.” Id.
{¶ 100} Similar logic applies to someone who is intoxicated. A person who is intoxicated has a reduced ability to make reasoned judgments. And certainly, that was the case here. Weber had glassy and bloodshot eyes, his speech was slurred, and he was unable to stand without swaying. The deputy at the scene was unable to administer the horizontal-gaze nystagmus test because Weber would not follow directions. Weber seemed “confused” and was unable to supply a definite answer to questions. Under the conception of the right held by the founders, Weber could be deprived of his right until he sobered up because until that point, he was not capable of reasonably exercising it.
{¶ 101} There is, of course, nothing incompatible about the rights-based approach to the historical evidence used by Judge Batchelder and the focus on dangerousness employed by Judges Hardiman and Barrett. There is strong evidence that the founding generation believed that those who posed a present danger to others fell outside of the Second Amendment’s protection. There is also good reason to think that the founding generation believed the ability to exercise a right was
3. Legal Prohibitions in 18th- and 19th-Century America Relating to Alcohol and Firearms Further Demonstrate that the Application of R.C. 2923.15 Did Not Violate Weber’s Second Amendment Rights
{¶ 102} The explicit reference in Heller and McDonald to “presumptively lawful” restrictions on felons and the mentally ill supports the constitutionality of
{¶ 103} The idea that the government may protect its citizens from the dangers of drunks wielding firearms is backed up by history and tradition. In addition to the materials cited in the previous section about disarming those who posed a danger to others, there were also specific laws relating to guns and alcohol. Virginia had early restrictions on firing guns while intoxicated and required violators to forfeit 100 pounds of tobacco. Act of March 10, 1655, 1655 Va.Laws 401. Around the same time, a New York law explicitly recognized the “deplorable accidents such as wounding” caused by the drunken firing of guns on New Year’s and May Days and so prohibited the firing of guns on those days. Ordinance of The Director General and Council of New Netherland to Prevent Firing Of Guns, Planting May Poles and Other Irregularities Within This Province, 1665 N.Y. Laws 205. And one suspects that alcohol was on the minds of legislators when the state of Pennsylvania, in 1774, outlawed “wantonly, and without reasonable occasion, discharg[ing] and fir[ing] off any hand-gun, pistol or other fire-arms” around the New Year. An Act to Suppress the Disorderly Practice of Firing Guns, etc., on the Times Therein Mentioned, 1759-1776 Pa.Acts 421, Section 1. So too when New York, in 1785, prohibited firing guns entirely “on the eve of the last day of December, and the first and second days of January” because, apparently, “great dangers have arisen, and mischief been done.” An Act to Prevent the Firing of Guns and other Fire Arms within this State on Certain Days Therein Mentioned, 1784-1785 N.Y. Laws 152.
{¶ 104} The examples continue right through the beginning of the 20th century. In Kansas, an 1868 statute prohibited any person “under the influence of intoxicating drink * * * [from] carrying on his person a pistol, bowie-knife, dirk or other deadly weapon.” 1868 Kan.Sess.Laws 66. An 1883 Missouri statute prohibited one from having or carrying “any such weapon upon or about his person when intoxicated, or under the influence of intoxicating drinks.” State v. Shelby, 2 S.W. 468, 469 (Mo.1886). In Texas in 1871, a court rejected a constitutional challenge in which the person had been convicted of carrying a firearm while intoxicated. English v. State, 35 Tex. 473, 474-477, 480 (1871). And in Ohio in 1900, this court upheld a law aimed at
{¶ 105} Weber correctly points out that the founding generation drank a lot of alcohol. But there was also a lot of regulation of drinking at the same time. Indeed, alcohol and alcohol consumption was probably the most regulated subject in the early republic. Drunkenness generally was not well accepted and was a crime throughout the colonies. Sismondo, America Walks into a Bar 11 (2011); Lender, Drinking in America: A History 17 (1987). By the time of the founding, each colony had “developed an extensive legal code to combat all aspects of liquor violations.” Lender at 17. Drunkards were often heavily punished, receiving jail time, fines, and even corporal punishment. Id. In Massachusetts, some of the worst offenders were forced to wear the scarlet letter “D.” Id. Taverns—the vital center of colonial towns—were heavily regulated in all states. Sismondo at 4, 15. In Virginia after 1638, for example, “there was more law on the books regarding the licensing of taverns than there was on ‘roads, land titles, care of the poor and general law and order.’ ” Sismondo at 15.
{¶ 106} Other laws more explicitly recognized the dangers intoxicated individuals could pose. An 1817 Pennsylvania law, for example, mandated a suspension of not less than one year for any pilot “intoxicated with drink,” “whilst having charge of a ship or vessel.” A Supplement to the Act, entitled “An Act to Establish a Board of Wardens for the Port of Philadelphia, for the Regulation of Pilots and Pilotages, and for Other Purposes Therein Mentioned,” 1816 Pa.Laws 109. An 1854 statute made it a crime to “[w]ilfully furnish[] intoxicating drinks * * * to any person of known intemperate habits, to a minor, or to an insane person” or to “any person when drunk or intoxicated.” An Act to Protect Certain Domestic and Private Rights, and Prevent Abuses in the Sale and Use of Intoxicating Drinks, 1854 Pa.Laws 663. During the 18th century in particular, governments were sure to restrict the sale of alcohol to Indians and slaves, believing them to be especially susceptible to violence when intoxicated. Lender at 21-29. Clearly, drunkenness was understood to have adverse effects on society, and those viewed as dangerous with alcohol were either prohibited from consuming it or were restricted from partaking in other activities once intoxicated. Thus, members of the founding generation would have found nothing incongruent about regulating one’s alcohol use while using a gun.
{¶ 107} There is also no question that colonial Americans understood intoxication could be grounds for the temporary suspension of one’s ability to exercise a protected right. The Statutes of Ohio and the Northwestern Territory, for example, provided that if “any person by being intoxicated, shall be found making or exciting any noise, contention or disturbance, at any tavern, court, election, or other meeting” that person could be fined or “imprisoned. ’till such court, election or meeting is over.” Salmon P. Chase, Statutes of Ohio and of the Northwestern Territory, Adopted or Enacted from 1788 to 1833 Inclusive: Together with the Ordinance of 1787; the Constitutions of Ohio and of the United States, and various Public Instruments and Acts of Congress 503 (1833). Similarly, an 1811 Maryland statute made it unlawful to supply ” ‘spirituous or fermented
{¶ 108} To be sure, none of these laws exactly match the statute at issue here. But there is no reason to insist that our current concerns need to match those of the founding generation. What is important is whether under the original public understanding of the Second Amendment,
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IV. Conclusion
{¶ 109} The right to bear arms guaranteed by the Second Amendment and the
FISCHER, J., dissenting.
{¶ 110} In this case, we are asked to decide whether the application of
{¶ 111} The answer to the latter of these questions is that laws and regulations challenged under the Second Amendment must be judged according to the text, history, and tradition of the Second Amendment. Because that was not the standard applied below, there is no need to go any further in the analysis, and this cause should be remanded to the Twelfth District Court of Appeals for further proceedings on the constitutionality of
I. BACKGROUND
{¶ 112} The Second Amendment to the United States Constitution provides that “[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.”
{¶ 113} Appellee, the state of Ohio, charged appellant, Fred Weber, with violating
{¶ 114} At his bench trial, Weber unsuccessfully argued that criminalizing the act of holding a firearm while under the influence of alcohol is unconstitutional when that conduct occurs entirely inside the home. Following his conviction, Weber raised that same argument on appeal. 2019-Ohio-916, 132 N.E.3d 1140, ¶ 10-11. Like the trial court, the Twelfth District Court of Appeals found Weber’s constitutionality argument unpersuasive. Specifically, after applying intermediate scrutiny, the Twelfth District held that
{¶ 115} After the Twelfth District issued its decision, we accepted Weber’s discretionary appeal. See 156 Ohio St.3d 1452, 2019-Ohio-2780, 125 N.E.3d 941.
II. ANALYSIS
A. Method of Review
{¶ 116} Because Weber challenged the validity of applying
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{¶ 117} Before answering that question, it is useful to examine why that question is now before us as well as why that question is a difficult one to answer. Following the United States Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894, judges across the federal-court system have been in open disagreement with one another on what the appropriate method of review is in Second Amendment cases. The predominant approach is to utilize a convoluted interest-balancing test in which one level of scrutiny gets applied in some cases and another level of scrutiny gets applied in others. See, e.g., United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010); United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010); United States v. Reese, 627 F.3d 792, 800-801 (10th Cir.2010); Ezell v. Chicago, 651 F.3d 684, 701-703 (7th Cir.2011); United States v. Greeno, 679 F.3d 510, 518 (6th Cir.2012). At the same time, a not insignificant number of judges have criticized that test, arguing instead that the proper approach in these cases is to look at the text, history, and tradition of the Second Amendment. See, e.g., Kanter v. Barr, 919 F.3d 437, 451-453 (7th Cir.2019) (Barrett, J., dissenting); Tyler v. Hillsdale Cty. Sheriff’s Dept., 837 F.3d 678, 702 (6th Cir.2016) (en banc) (Batchelder, J., concurring in part and concurring in judgment); Binderup v. Atty. Gen., 836 F.3d 336, 367 (3d Cir.2016) (en banc) (Hardiman, J., concurring in part and concurring in judgment); Heller v. District of Columbia, 670 F.3d 1244, 1272-1273 (D.C.Cir.2011) (Kavanaugh, J., dissenting).
{¶ 118} The parties in this case, perhaps due to the confusion in this area, each ask us to apply a different level of scrutiny. The lead opinion heeds that call and adopts the interest-balancing test created by the federal courts. Consistent with the United States Supreme Court’s decisions in Heller and McDonald, however, I would not adopt such a test. Instead, I would hold that the appropriate inquiry is to evaluate the challenged law or regulation according to the text, history, and tradition
{¶ 119} In Heller, the court notably did not employ an interest-balancing test when faced with a Second Amendment challenge. Rather, the court resolved that case by focusing on the text, history, and tradition of the Second Amendment. For example, the court started by conducting an extensive analysis of the text of the Second Amendment, 554 U.S. at 582-591, 128 S.Ct. 2783, 171 L.Ed.2d 637, which it found protected the right of a citizen to have and to carry weapons in case of confrontation, id. at 592. The court went on to confirm its interpretation of the text by looking at the history and tradition of the right. Id. at 592-619. Specifically, the court considered the right’s English roots, id. at 592-594, the understanding of the right in colonial America, id. at 594, analogous provisions in state constitutions that were adopted following the Declaration of Independence, id. at 600-603, postratification commentaries from “founding-era legal scholars,” id. at 605-610, early-American case law, id. at 610-614, and 19th-century laws and commentaries, id. at 614-619, which the court found “instructive” of “the origins and continuing significance of the Amendment,” id. at 614. The court then concluded by noting that the right was not unlimited and that regulations and restrictions were permissible, so long as there were historical justifications for those regulations and restrictions. Id. at 626-635.
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{¶ 120} Collectively, from start to finish, the approach in Heller suggests that the proper method of review in Second Amendment cases is to look at the text, history, and tradition of the Second Amendment to see if the challenged law or rule is consistent with the scope of the right as originally understood. See id. at 634-635 (“Constitutional rights are enshrined with the scope they were understood to have when the people adopted them * * *“).
{¶ 121} In McDonald, the court employed a similar methodology to decide that the right to keep and bear arms is applicable to the states under the Fourteenth Amendment. 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). In doing so, a plurality of the court stated that Heller should be understood as rejecting an interest-balancing test in favor of an approach that focuses on the original understanding of the Second Amendment. McDonald at 785.
{¶ 122} The benefit of the Heller and McDonald approach is that while “[h]istorical analysis can be difficult,” McDonald at 803 (Scalia, J., concurring), looking at the text, history, and tradition of the Second Amendment when deciding a constitutional challenge under that provision is far more consistent with our system of government and the judiciary’s role in that system than simply applying an interesting-balancing test. After all, “the Constitution cannot secure the people’s liberty any less today than it did the day it was ratified,” Oil States Energy Servs., L.L.C. v. Greene’s Energy Group, L.L.C., ___ U.S.___, ___ 138 S.Ct. 1365, 1381, 200 L.Ed.2d 671 (2018) (Gorsuch, J., dissenting), and it is up to us as judges to ensure that is so. The Federalist No. 78 at 467-470
{¶ 123} Consequently, following Heller and McDonald, to determine whether an Ohio law or regulation is constitutional under the Second Amendment, I would look to the text, history, and tradition of the Second Amendment to see if the challenged law or rule is consistent with the original understanding of the Second Amendment and is thus constitutional. In other words, I would let the original understanding of the scope of the right inform the government’s ability to restrict a person’s right to keep and bear arms.
B. Remand for Application to R.C. 2923.15
{¶ 124} Because the court below applied a different method of review, I would decline to answer whether
{¶ 125} Giving the parties the chance to brief and argue this question through the adversarial process is both fair and wise. First, doing so would prevent the parties from being penalized simply because there previously was not a clear method of review in these types of cases. Next, doing so would also help to ensure that the right result, one way or the other, is eventually reached in this case. Reaching the correct result is especially important here because we are dealing with the constitutionality of a law passed by the General Assembly and an individual’s liberty.
{¶ 126} Of course, given the scant briefing done by Weber’s lawyers here, it is worth reminding both parties that under this approach, each side would need to marshal significant historical evidence in support of their understanding of the Second Amendment. It is not enough to simply claim that the existence of a right invalidates an otherwise presumptively valid law. Likewise, it is not enough to rest solely on the fact that laws passed by the General Assembly are presumptively valid. Instead, the parties must show their work and explain, with the help of support, why the law in question is or is not constitutional.
{¶ 127} Another word of caution is appropriate here about some language in Heller that has given courts and litigants alike some trouble over the years. Toward the end of Heller, the court stated that its decision was limited to the law before it and was not intended to cast doubt on any other restrictions, including “prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” 554 U.S. at 626-627, 128 S.Ct. 2783, 171 L.Ed.2d 637. A number of courts, including this court and the court of appeals in this case, have used that language as a shortcut to upholding other laws challenged under the Second Amendment. That very clearly was not the point of that passage, however. In fact, as mentioned above, the court in Heller was quite explicit that the validity of those and other restrictions should be evaluated in future cases based on the text, history, and tradition of the Second Amendment. Id. at 635. So, rather than validating any of the restrictions mentioned by the court, Heller’s commentary on those restrictions is essentially dicta. United States v. Skoien, 614 F.3d 638, 640 (7th Cir.2010); see also Cohens v. Virginia, 19 U.S. 264, 399, 5 L.Ed. 257 (1821) (if general expressions in an opinion go beyond the case, “they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision“).
{¶ 128} Accordingly, with the preceding in mind, I would remand the cause to the court of appeals for further proceedings on whether
III. CONCLUSION
{¶ 129} For the reasons stated above, I would reverse the judgment of Twelfth District Court of Appeals and remand this cause to that court for further proceedings. Because the court does differently, I respectfully dissent.
KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
D. Vincent Faris, Clermont County Prosecuting Attorney, and Nick Horton, Assistant Prosecuting Attorney, for appellee.
Gary A. Rosenhoffer, for appellant.
Jones Day, Yvette McGee Brown, and Benjamin C. Mizer, urging affirmance for amici curiae Giffords Law Center to Prevent Gun Violence and Brady Center to Prevent Gun Violence.
Zach Klein, Columbus City Attorney, and Charles P. Campisano, Assistant City Attorney; and Every Town Law, Eric Tirschwell, Mark Anthony Frasseto, and Krystan Hitchcock, urging affirmance for amicus curiae city of Columbus.
Paula Boggs Muething, Cincinnati City Solicitor, and Emily Smart Woerner and Jacklyn Gonzales Martin, Assistant City Solicitors, urging affirmance for amicus curiae city of Cincinnati.
Eve V. Belfance, Akron Director of Law, urging affirmance for amicus curiae city of Akron.
Barbara Doseck, Dayton City Attorney, and John C. Musto, Assistant City Attorney, urging affirmance for amicus curiae city of Dayton.
Anthony L. Geiger, Lima Law Director, urging affirmance for amicus curiae city of Lima.
Dale R. Emch, Toledo Director of Law, urging affirmance for amicus curiae city of Toledo.