The biggest legal threat you didn’t know you were facing

Ohio gun owners are well aware of our antiquated, backwards laws relating to gun ownership and usage. One thing area gun owners of every stripe – hunters, clay shooters, handgun shooters, competitive shooters and self-defense advocates – uniformly agree upon is that our laws regulating unloaded transportation of firearms in a motor vehicle have been twisted well beyond the understanding of the average person.

Quite a few gun owners have heard the horror stories - anti-gun jurisdictions arresting people transporting unloaded firearms in a car simply because there was a bullet in the gun case, shotgun shells in the vest next to the gun case or a magazine with ammunition in it somewhere in the range bag.

Most Ohio gun owners don’t realize just how bad it is in Ohio, and won’t know until they get arrested and charged with a felony they had no idea they were committing.

Much of the problem with Ohio’s law regulating firearms in motor vehicles stems from the fact that two different statutes regulate this conduct. Revised Code § 2923.12 (carrying concealed weapons) and Revised Code § 2923.16 (improperly handling firearms in a motor vehicle.)

Just because a firearm is in a motor vehicle does not mean that R.C. § 2923.16 is the statute that controls. Several Ohio Courts have ruled that the concealed carry statute still applies to firearms in a motor vehicle, even though we have a specific statute regulating that same conduct. See, for example, State v. Morgan 2004 WL 257619, State v. Bowman 79 Ohio App.3d 407, State v. Croomes 1984 WL 5777, State v. Calamari 1977 WL 200475 and State v. Mellinger 1986 WL 3659.

So in Ohio, we have two statutes to contend with when attempting to transport a firearm in a motor vehicle. The General Assembly has attempted to address this by providing that if someone is complying with R.C. § 2923.16, that is an affirmative defense to a charge under R.C. § 2923.12. Unfortunately, this measure has fallen well short of the intended result.

The first problem is that Ohio Courts have perverted the meaning of a gun being “loaded” due to the language of “ammunition readily at hand” contained in R.C. § 2923.12(G)(1). In the cases above, as well as other cases, trial courts have considered guns loaded because of bullets in the same bag as the unloaded gun (see State v. Higgins 1994 WL 55525), bullets on the floor board behind the driver, loaded magazines in gun cases, shotgun shells in pockets, etc., etc. To gun owners, the plain meaning of “unloaded” means no ammunition in the gun, not some kind of “loaded by construction” trap for the unwary.

Justice Oliver Wendell Holmes is attributed with the idea that words should not be strained for interpretation, and we should not labor to determine what the writer of the words meant. “(We should not worry)… what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used.” To a normal user of English, “unloaded” means no ammunition in the gun, not worrying about whether ammunition in a back seat or trunk with pass through partition can be construed to be “readily at hand.”

Beyond the “loaded” trap, the General Assembly created a doozie of a trap for the unwary when they passed HB12. Unbeknownst to the General Assembly, the Senate stripped your ability to transport an unloaded handgun when they tinkered with HB12 to satisfy former Governor and convicted criminal Bob Taft.

I am saying it plainly, and I am supremely confident of this assertion: Under current Ohio law, there is no lawful way to transport an unloaded handgun in a motor vehicle. I challenge to a public debate any attorney or other quasi-authority who states otherwise.

Previously, I stated that the General Assembly attempted to address the two-statute situation by making lawful transportation of an unloaded firearm an affirmative defense to a charge of concealed carry. Well, unfortunately the Senate changed this in 2004. Now it is only an affirmative defense that you transported the firearm “other than a handgun” properly. I give you the plain wording of statute:

1. R.C. § 2923.12

   (D) It is an affirmative defense to a charge under division (A)(1) of this section of carrying or having control of a weapon other than a handgun and other than a dangerous ordnance that the actor was not otherwise prohibited by law from having the weapon and that any of the following applies:

   * * *

   (4) The weapon was being transported in a motor vehicle for any lawful purpose, was not on the actor's person, and, if the weapon was a firearm, was carried in compliance with the applicable requirements of division (C) of section 2923.16 of the Revised Code.

In case the plain wording of the statute is not enough to convince you, consider that two people in Ohio have already been convicted of transporting an unloaded pistol in a motor vehicle under this Senate modification (State v. Derenda L. Borham, Delaware Municipal Court # 06-CRB-969 and State v. Davis 166 Ohio App.3d 37). In Davis, the Appellate Court agreed with the trial court, upholding the conviction. That case is currently pending in front of the Ohio Supreme Court, and is expected to be upheld with a similar ruling. See
http://www.sconet.state.oh.us/clerk_of_court/ecms/resultsbycasenumber.as... .

As if the above is not bad enough, the final insult is that the Senate has been aware of this problem for more than two years, and has failed to take even the most limited action to correct the situation. The House version of HB347 contained a “fix” for this trap. The Senate stripped it out, and refused to reinstate it through proffered amendments. More recently, a "fix" was prepared as an amendment to the Transportation budget. It was presented and subsequently rejected.

It is well past time to fix this felony trap for gun owners in Ohio. It simply is not credible, in light of the overwhelming case law on this issue, to say “there is not a problem” with current law. There is a problem, it has been clearly identified, and it is not a case of “rogue judges” deciding the law incorrectly.

Every day the Senate continues to reject a fix to this trap is another day someone unknowingly risks a felony conviction for driving to the gun range with an unloaded handgun in their car.

Until the Senate is willing to step up and fix this known problem, the reader is urged to transport their firearms in accordance with Federal law, which preempts state law.

1. 18 USC 926A
   Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.

Ken Hanson is Buckeye Firearms Association Legislative Chair and author of The Ohio Guide to Firearm Laws.

UPDATE: OSC ruling highlights urgency of need for unloaded transportation law fix