Ohio Supremes hear promising case for ending municipal gun control...or IS it?

"The NRA is going to work with the people of Columbus and the Ohio Legislature to pass state preemption legislation and restore freedom to the people of Columbus. When the Ohio legislature enacts preemption, freedom will be restored to the people of Columbus. And when freedom comes back to Columbus, we will come back to Columbus." - Wayne LaPierre, NRA Executive Vice President

Newspapers throughout the state are reporting on arguments made before the Ohio Supreme Court this week regarding a Cincinnati man's challenge to municipal gun control laws.

While at first this case may appear to bear resemblance to preemption arguments being made in suits against the City of Clyde, the City of Toledo and also as contemplated in House Bill 347, an attorney familiar with the cases tells Buckeye Firearms Association that City of Cincinnati v. Colt Lee Baskin is anything BUT similar to these other arguments...

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The Columbus Dispatch's coverage on the Baskin case began like this:

When Cincinnati police cited him in 2003, Colt Lee Baskin was a 24-year-old with the wrong gun in the wrong place at the wrong time. Now, his challenge to Cincinnati’s assault weapon law could overturn municipal restrictions on firearms in Columbus and across Ohio.

The Ohio Supreme Court heard Baskin’s objection yesterday to the Cincinnati ordinance banning firearms that can fire more than 10 rounds without reloading. An attorney for Baskin, who has won in lower courts, argued that the city rule conflicts with state law allowing weapons with up to 31 rounds.

The case is being followed by the National Rifle Association and several Ohio cities that have enacted restrictions on firearms, including Columbus, Cleveland, Toledo and Dayton.

Cincinnati’s attorney said outside court that if Baskin prevails, the gun regulations in those cities also could be struck down.

More important, said Cincinnati Chief Deputy Prosecutor Charles A. Rubenstein, the case challenges the long-standing practice in Ohio of letting cities and counties make laws as they see fit — as long as the ordinances don’t conflict with state and federal law. The very notion of home rule would disappear if local regulations such as the Cincinnati gun law were declared invalid, Rubenstein said.

"What meaningful local legislation could there be?" he asked. "It would render home rule essentially a shell."

Commentary from an attorney familiar with the various cases...
The Baskin case is entirely different from the preemption arguments being made in the Clyde case, the Toledo case and contemplated by H.B. 347.

In the Baskin case, the lower courts ruled that Cincinnati's ordinances were invalid under a preemption analysis. However, the Baskin case is different in one important way. In this case, the lower courts found Cincinnati's ordinance was preempted because Cincinnati sought to ban something that the state did not ban - assault rifles. The reasoning of the Court was "since the State does not ban this, the city may not."

Unfortunately for gun owners, this is contrary to long-established precedent, and will likely be overturned by the Supreme Court. In essence, where the Baskin case departs from prior law, and where it is distinquishable from Clyde, Toledo and H.B. 347, is that the Baskin Court made the leap of logic that the state not prohibiting something is the same as the state affirmatively allowing something. This is not the case, nor has it ever been, when considering a conflicts of law/preemption arguments. For an excellent analysis of this, see Judge Painter's dissent in the Baskin appellate case.

The well-settled law is whether the state SPECIFICALLY allows or licenses something, and the local ordinance trys to ban it. Only in a case where there is an affirmative grant to allow the conduct does it fit into a conflicts of law/preemption analysis.

So, looking at Clyde, Toledo and H.B. 347, we see how these are distinquishable from Baskin. In those cases, we have specific, explicit affirmative grants to allow conduct. In Clyde and Toledo this is the ability to carry a concealed handgun "anywhere" in the state not otherwise prohibited by the O.R.C. In H.B. 347, we have explicit, affirmative grants to allow conduct in all areas of firearms ownership/possession/purchase.

So this is why the Ohio Supreme Court will rule against [gun owners] in Baskin, and this is why the Baskin case really means nothing for the future of firearms preemption in Ohio. My hope is that the Ohio Supreme Court will use this as an opportunity to clear up some of the muddied preemption law in Ohio to give the General Assembly clearer guidance on how to accomplish preemptive effect.