Cleveland clings to gun control until the bitter end

by Ken Hanson, Esq.

On October 12, 2010, the Ohio Supreme Court heard oral arguments in Cleveland's challenge to the constitutionality of R.C. 9.68. R.C. 9.68 is the provision of Ohio law generally referred to as Ohio's preemption law, which was implemented over Governor Taft's veto of House Bill 347. Trying to predict the outcome of a court case based upon oral argument is pure folly, but listening to this argument does instill a sense of optimism for Ohio's gun owners.

The first thing to note about this case is that it was brought by the City of Cleveland against the State of Ohio. As we noted throughout the debate on HB347, one critical component of the new law is that it shifted the burden back where it belonged - on the cities. If a city wants to have firearm laws, the city now bears the expense and risk of advancing such laws. So from that viewpoint, the simple fact that Cleveland sued the State of Ohio, versus a gun owner or pro-gun group taking Cleveland to court, is a victory for gun owners.

I have said in the past that a layperson observing a court case is kind of like an American watching a Cricket match. Different people are playing different roles, there appears to be rules and score keeping, but danged if we can figure the game out. It really takes an insider to understand and appreciate the game.

Cleveland's case presents a pretty straightforward question – is R.C. 9.68 constitutional? From there, the issues become convoluted and contrary to what an ordinary person considers logical. In an attempt to provide a roadmap to our supporters, the following simple, generalized summary should be helpful.

First, Ohio does not have a provision for "preemption" of local laws. Cities have the ability to pass whatever criminal laws strike their fancy. The Ohio General Assembly may not pass a law that says "cities may not regulate x, y and z." Instead, Ohio has a conflict of law analysis. Cities may not prohibit that which the state has specifically allowed, and cities may not try to allow that which the state has specifically prohibited. During the debate on HB347, the Ohio Supreme Court decided the Baskin case, upholding Cincinnati's "assault weapons" ban. As we noted at the time, the decision was expected and was correct based upon current law; current law that would be changed by HB347.

Since Ohio has no preemption provision, the approach that was required was to have the state specifically allow the complete exercise of firearm rights, unless the exercise was specifically prohibited by state or federal law. This approach was taken because constitutions are not self-implementing. Specific legislation is required to implement affirmative rights; otherwise, the individual is forever stuck challenging laws that prohibit the exercise of rights.

Cleveland has taken the position that Ohio cannot guarantee broad exercise of constitutional rights. Instead, what is required is a micro-management of each element of the exercise of the right. This argument is nonsense on stilts. Cleveland's argument, by analogy, is that there is no freedom of speech unless the state regulates exactly when, where and how a person speaks and criminally punishes anyone who does not speak according to these regulations.

It is extremely illustrative of Cleveland's attitude towards their citizens that Cleveland feels that the only role government may play is restricting freedoms, rather than broadly guaranteeing freedoms.

Benjamin C. Mizer (Ben) is Attorney General Richard Cordray's solicitor general, the person who argues cases on behalf of the State of Ohio. Attorney General Cordray has vibrantly defended this case since it was filed, and Mr. Mizer did an outstanding job of defending R.C. 9.68. The justices had relatively few questions for Mr. Mizer. The same is not true of Gary Singletary, Cleveland's assistant law director.

Regrettably, I was unable to attend the oral argument in person due to family commitments. At about 14:20, Justice Stratton asks about states granting rights, versus merely prohibiting conduct that is offensive. Again at 24 minutes into the argument, Justice Cupp pins down Mr. Singletary on the issue about governments only passing negative regulation (i.e. prohibiting conduct) versus affirmative regulation (i.e. allowing conduct.) At that point Mr. Singletary concedes that governments may pass affirmative regulation. In my opinion, this is the point where the case is decided in favor of gun owners. Around 18:40 Justice Pfeifer asks about Cleveland amending their laws in response to state law changes, and Mr. Singletary conceded that Cleveland has made no attempt to bring their local ordinances into compliance with Ohio's concealed carry laws, much less any other area of firearm laws. He also conceded that Cleveland will be back in court over these same laws, even if Cleveland loses this current case.

This question is followed up by justice Cupp at 26 minutes (roughly) by asking why the state should have to affirmatively regulate by micro-management versus just saying that all exercise of a right is allowed unless specifically prohibited. In essence, why should the state have to say "you may carry a firearm on the sidewalk, on the street, in the park, in the grocery etc. etc. ad nauseum" versus just saying "unless we have specifically
prohibited it, it is affirmatively allowed."

This is the reason that Buckeye Firearms Association has a case filed and waiting over every single Cleveland gun control law. Cleveland is not going to go away quietly, so we are ready to move forward one minute after the Ohio Supreme Court upholds the constitutionality of R.C. 9.68. Cleveland is going to claim that they may require handgun registration because Ohio has not specifically said "you may own a handgun without registration." Instead, Ohio has said you can own any firearm unless state or federally law specifically says you may not. Yes, I roll my eyes at that argument, also.

At 1:30 and again at 28 minutes into the argument, Justice Lanzinger (up for election this year) asks Mr. Singletary about the precedent from the Clyde case, and hasn't this issue already been decided? Justice Lanzinger has made it pretty clear with this question that she feels that the Clyde case is settled law which she and the court must follow, even though she voted in the dissent in the Clyde case. Justice O'Connor (running for Chief Justice this year against current Chief Justice appointee Eric Brown, who asked questions that were generally hostile to gun owners during the argument) follows this up at minute 36 with questions that make it pretty clear that she also feels that the issue was already decided years ago. Justice O'Connor's point is that if Cleveland feels that there isn't enough gun control, then their relief lies in asking the General Assembly to pass more gun control, and not in ignoring valid state law.

Again, there is no way to predict an outcome by listening to an argument, but it appears generally that gun owners should be optimistic of a positive outcome, perhaps even by a vote of 6-1 this time.

Ken Hanson is a gun rights attorney in Ohio. He serves as the Legislative Chair for Buckeye Firearms Association, and is the attorney of record for Buckeye Firearms Foundation, which filed friend-of-the-court briefs in the Heller and McDonald Supreme Court cases. The National Rifle Association's Institute for Legislative Action (NRA-ILA) has awarded him with its 2008 Defender of Justice Award and 2009 Jay M. Littlefield Volunteer of the Year Award. He is the author of The Ohio Guide to Firearm Laws, a certified firearms instructor and holds a Type 01 Federal Firearms License.