Clayton Cramer Weblog on OSC Ruling Well Worth a Read

This is long, but WELL worth the read. Why won't today's media, supposedly concerned with modern day racism and bigotry, report on the facts about the history of Ohio's concealed carry ban?

Ohio Supreme Court Upholds Concealed Carry Ban
September 24, 2003, 8:18 a.m.

I guess I'm not too surprised. Ohio's law prohibits carrying a concealed handgun, but allows you to raise an affirmative defense at trial that you needed to do so for self-protection. In practice, it was only a few years ago that this affirmative defense was finally successfully used at trial. Even law enforcement officials who testified during the initial trial in Hamilton County couldn't agree on what was a lawful reason to carry concealed.

Part of the opinion makes sense. They acknowledge that the right to bear arms under the Ohio Constitution is fundamental. But they also argue that fundamental rights are subject to reasonable limitations, and point to the fact that in both State v. Hogan (Ohio 1900) and State v. Nieto (Ohio 1920) the Ohio Supreme Court upheld limitations on carrying of arms as reasonable limitations. Because of constitutional conventions between 1859 (when the first ban was passed) and the present, which kept the Ohio right to keep and bear arms provision unchanged, they have a legitimate argument when they claim that this is evidence that concealed carry is not constitutionally protected.

What is disappointing is how embarrassing both Hogan and Nieto are, and how unconcerned the Ohio Supreme Court is with citing these cases.

Click on the "Read More..." link below for more.

The Hogan decision prohibited "tramps" from carrying deadly weapons, and the language is vitrolic, and irrational:

"Speaking of the class, the genus tramp, in this country, is a public enemy. He is numerous, and he is dangerous. He is a nomad, a wanderer on the face of the earth, with his hand against every honest man, woman, and child, in so far as they do not promptly and fully supply his demands. He is a thief, a robber, often a murderer, and always a nuisance. He does not belong to the working classes, but is an idler. He does not work, because he despises work. It is a fixed principle with him that, come what may, he will not work. He is so low in the scale of humanity that he is without that not uncommon virtue among the low, of honor among thieves. He will steal from a fellow tramp, if in need of what that fellow has, and will resort to violence when that is necessary. So numerous has the class become that the members may be said to overrun the improved parts of the country, especially the more thickly-settled portions."[State v. Hogan, 63 Ohio St. 202, 81 Am. St. Rep. 626, 58 N.E. 572, 574 (1900).]

The legislature didn't want poor people to be armed, and failed to define what made someone a "tramp."

The Nieto case is even more embarrassing. Nieto was charged with concealed carry in his own bed. The police went to arrest him for supposedly threatening someone with a gun--but it doesn't appear that he was ever charged with that. When they arrested Nieto in a company bunkhouse, he was asleep, and they found a gun in his clothing, and charged him with concealed carry. He was found innocent at trial, and the state appealed.

The Nieto decision makes little sense when you start to check the citations. From my book For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms (Praeger Press, 1994):

"The majority opinion, written by Justice Avery, pointed to such decisions as Dunstan v. State (Ala. 1900) [although they consistently misspelled it as Dunston], and Carroll v. State (Ark. 1872) for support for the position that the state could even prohibit concealed carry in one’s own home. With respect to the right to bear arms in general, the Court cited the Ohio Constitution and the Second Amendment, and asserted that the Second Amendment was only a restriction on the powers of the federal government, citing Aymette v. State (1840), Fife v. State (Ark. 1876), English v. State (Tex. 1872), and City of Salina v. Blaksley (Kan. 1905).

But as we have previously seen, these decisions are mutually contradictory, and some contradict the position taken by the Ohio Supreme Court in this case. Salina denied any individual right existed under either state or federal constitutions; English accepted that both the Second Amendment and the Texas Constitution protected an individual right (at least for military arms) from state laws; Fife found the Arkansas Constitutional guarantee to be an individual right.

In addition to the question of whether this was an individual right, English and Fife both upheld what were effectively prohibitions on the carrying of handguns, either concealed or openly; yet the Ohio Supreme Court sought to use these as precedents for the position that some bearing of arms was Constitutionally protected:
The statute does not operate as a prohibition against carrying weapons, but as a regulation of the manner of carrying them. The gist of the offense is concealment. The constitution contains no prohibition against the legislature making such police regulations as may be necessary for the welfare of the public at large as to the manner in which arms shall be borne. [State v. Nieto, 101 Ohio St. 409, 413, 130 N.E. 663 (1920).]

In spite of these dramatic contradictions, the Court declared, “We are thoroughly in accord with these decisions."

...

It would be tempting to leave this decision now—but the minority opinion of Justice Wanamaker brings up the issue that was alluded to in previous chapters—the issue of race. Justice Wanamaker’s opinion is a tour de force of logical argument, starting with the basic premise of human rights:

"ORIGIN OF HUMAN RIGHTS. Human rights were born when humanity was born. Both were divine creations. They antedated states, kings, and parliaments. States, constitutions and statutes followed centuries after. The latter were human creations. Their primary and paramount purpose was to conserve those human rights, not to deny or destroy them."

Justice Wanamaker then traced the significance of the preamble of the Declaration of Independence, the American peculiarity of written constitutions as limits to governmental power, and Cooley’s writings on “State Constitutions Limitations On Power Rather Than Grants Of Power,” finally arriving at the Ohio Constitutions of 1802 and 1851:

“Section 4. The people have the right to bear arms for their defense and security;...”

This is the language of the plain people of Ohio, put into their own constitution. The people’s meaning is self-evident. It will not do to pervert the natural and ordinary meaning of the people’s words by substituting therefor a judicial construction that negatives and nullifies these constitutional guarantees. The people clearly understood these plain provisions. It is incredible that any court should be ignorant of them, or even doubtful concerning them."

Wanamaker also argued that a crime, by the definitions of Ohio law, required an injury to others, and therefore the mere carrying of concealed weapons, without some other criminal purpose, was not properly within the police powers of the state.

In conclusion, Justice Wanamaker pointed out the problems of the existing precedents on the subject:

"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." [emphasis added]

Justice Wanamaker observed that while many decisions were already present on which the majority could base its opinion, “Of course, opinions could be found in support of almost any doctrine if you will look long enough and far enough. Opinions never were wanting to support witchcraft and slavery.”

His closing paragraphs sound profoundly current:

"I hold that the laws of the state of Ohio should be so applied and so interpreted as to favor the law-abiding rather than the law-violating people. If this decision shall stand as the law of Ohio, a very large percentage of the good people of Ohio to-day are criminals, because they are daily committing criminal acts by having these weapons in their own homes for their own defense. The only safe course for them to pursue, instead of having the weapon concealed on or about their person, or under their pillow at night, is to hang the revolver on the wall and put below it a large placard with these words inscribed:

“The Ohio supreme court having decided that it is a crime to carry a concealed weapon on one’s person in one’s home, even in one’s bed or bunk, this weapon is hung upon the wall that you may see it, and before you commit any burglary or assault, please, Mr. Burglar, hand me my gun.”

On the issue of whether the current statute is unconstitutionally vague or not, the Ohio Supreme Court seems to have ignored the clear confusion of the law enforcement officials who testified at the original trial, and just decided that the language was clear enough to them.

Justice O'Connor dissented, and while agreeing that regulating concealed carry is constitutional, argued that the right to bear arms, being a fundamental right, is subject to strict scrutiny. However, the right to concealed carry is not a fundamental right, since open carry is still lawful in Ohio. Concealed carry should be subject to intermediate scrutiny.

{24} Under intermediate scrutiny, a regulation will be upheld only if the regulation is narrowly tailored to serve an important government interest and leaves open other means of exercising the right. Id. The state argues that the carrying of concealed weapons must be banned to protect public safety. Ensuring public safety is an important government interest that would satisfy the first prong of the test, if the statute were narrowly tailored. Further, the state correctly asserts that the statute leaves open the ability to bear arms by openly carrying a firearm, satisfying the third prong of the test.

However, Justice O'Connor points out that no fundamental right should be subject to the affirmative defense requirement.

{27} Under the current statutory scheme, an officer need not be concerned with whether the accused is engaged in a constitutionally protected, i.e., lawful, activity at the time of arrest. Rather, a person can be arrested anytime when carrying a concealed weapon, even if doing so for the constitutionally protected purposes of defense and security. This creates an unavoidable chilling effect on the free exercise of the right to bear arms for defense and security.

{28} Moreover, the opportunity for the accused to establish that he was exercising a fundamental right does not justify subjecting him to arrest each time he exercises the right. This is as offensive as a statute allowing the arrest of anyone who speaks in public, but permitting the speaker to prove at trial that the speech was constitutionally protected.

Justice O'Connor would have overturned the statute, because it was not narrowly tailored.

Here's a suggestion for you Ohioans: start to carry openly. There's no law against it--and here's a chance to make some money suing police officers who arrest you for exercising a fundamental right. It may also force the state legislature to finally pass a concealed weapon permit system.

Commentary:
Thanks for the advice, Mr. Cramer! We have, and it is.

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