Ohio CCW fight is feature story in latest NRA America’s 1st Freedom magazine

Ohio’s Legal Logjam
by Blaine Smith, Assistant Editor, America's 1st Freedom
December 2003

With the Ohio Supreme Court letting stand a ban on the right to carry, the ongoing fight for the rights of Ohio citizens is being waged in the state’s legislature. And neither side looks ready to give in.

Late September 2003 found the Ohio Supreme Court overturning previous rulings by a Hamilton County judge and the 1st District Court of Appeals, both of which found Ohio’s ban on carrying firearms for self-defense violates the state’s constitution.

This ruling came in spite of the Ohio Constitution’s patently explicit declaration that “The people have the right to bear arms for their defense and security.” In both the majority and dissentingopinions, all seven justices presiding agreed that “[T]he right to bear arms for defense and security provided by the Ohio Constitution is a fundamental right.” However, a five-judge majority favored curtailing the express rights described in the state constitution, and leaving the work of reversing 140 years of flawed public policy to the legislature, instead of making an informed, just decision that would restore an individual right to those to whom it rightfully belongs - individuals.

Attempts in the Ohio legislature to enact a law recognizing citizens’ right to carry firearms is being hobbled in much the same way - by elitists in positions of power who have unduly stalled the legislative process for reasons no weightier than personal interest or fraternal association. This comes at the expense of no only constitutionally protected freedoms, but, as a recent study shows, violent victimizations numbering in the hundreds each month.

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”For Their Defense and Security”

In January of 2003, Ohio State Rep. Jim Aslanides introduced House Bill 12. This bill would mandate shall-issue right-to-carry permits to those individuals who pass a background check, receive safety training and pay a $45 fee for a permit. In March 2003, the bill passed the House of Representatives by a 68-28 majority, collecting enough votes to override a potential veto by Gov. Bob Taft.

FBI statistics have consistently shown that violent crime rates are significantly lower in states wirh right-to-carry laws. Additionally, award-winning research by Prof. Gary Kleck of Florida State University points to over 2 million instances a year where individuals use a firearm to defend themselves against robberies, assaults and even murder. Other researchers have shown that where right-to-carry laws have been passed, multiple victim public shootings have fallen by 60 percent.

“Once these laws are passed, they’re never repealed,” Chad Baus, a spokesman for Ohioans For Concealed Carry, told The Toledo Blade. “In fact, they are liberalized because peoplelike aving them. In Ohio, people can expect lower crime - and nothing else.”

“NRA has led the fight for right-to-carry in Ohio for the last 10 years, and this is as close as we’ve ever been to getting a law on the books that fully respects the right of law-abiding Ohioans to be able to defend themselves and their families,” said Chris Cox, executive director of the NRA-ILA. “I am optimistic that with the help of our many members we will make right-to-carry a reality in the Buckeye State.”

In March [note: the corrected date was June 18] the Ohio Senate passed HB12. However, despite the House version of the bill being more restrictive than the right-to-carry laws adopted by the states bordering Ohio, at the behest of Gov. Taft the Senate added even further restrictions to the bill before passing it.

Upon return to the House of Representatives, members found that HB12 had been revised to such a point that it was too restrictive for them, in good conscience, to accept.

Among the additions to the bill, the House found that the Senate teamed up with Gov. Taft to mandate that concealed firearms carried I a vehicle must be away from the person, in plain sight, and if an occupant of the vehicle is under the age of 18, the gun must be locked in a box inside the vehicle.

This superfluous revision to HB12 was a point that the Ohio Highway Patrol demanded be in the legislation. And seeing that the Senate wanted to pass a bill that would receive the governor’s blessing, and the governor demanded a bill that received the OHP’s blessing, the “lock box” revision to HB12 would prove to be a stumbling block in the path of HB12's passing.

Thankfully, the House rejected the revised version of the bill.

Loss By Default

Though HB12, in its initial form, had the acceptance of the Buckeye State Sheriff’s Association (BSSA), and though the Fraternal Order of Police (FOP) took no position on the issue, the OHP demanded that right-to-carry legislation include a new order that permittees handle their firearms unnecessarily in a vehicle.

Ohio state law calls for the formation of a conference committee in instances such as this. Usually, three House members (including the bill’s sponsor) and three Senators are appointed to meet in committee, hash out a compromise, and either accept or not accept that final bill.

Yet Senate President Doug White, apparently reluctant to upset Gov. Taft, skirted the conference committee precedent and instead demanded that House members meet with Gov. Taft and the OHP, instead of the Senate, to come to a mutually beneficial compromise.

In September the Ohio House even met with the BSSA, FOP and OHP to try and reach an agreement. The OHP backed out of the meetings.

As Aslanides points out, the OHP and Gov. Taft have no desire to pass a carry bill. The OHP hasn’t the glaze of a constituency to keep it accountable, meaning it has in part become a de facto government. The legislative process in Ohio has lost be default.

Ohio’s citizens are losing too, and in a big way. Ohioans For Concealed Carry recently tasked David Mustard, University of Georgia associate professor of economics, with estimating what would happen if Ohio were to pass concealed-carry legislation. The results were revealing.

By researching 20 years of FBI data relating to the effects of right-to-carry laws on the reduction of violent crime, Mustard’s study, entitled “Ohio-The Heart of All Defenselessness”, concludes that each month Ohio is without a carry law, there are three murders, 18 rapes, 29 robberies and 96 aggravated assaults that could have been prevented.

“In academic research literature, concealed carry laws are the only gun laws that frequently show reductions in crime,” Mustard said.

“This proves what proponents of this legislation have been saying all along,” said state Sen. Lynn Wachtmann. “It’s heart-wrenching to see the numbers of Ohioans who are being victimized while some continue to play politics.”

The Supreme Court Rules

In September, with HB12 stalled in the Ohio legislature, all eyes were on the Ohio Supreme Court and its forthcoming verdict in the case of Klein v. Leis.

The suit, brought by private investigator Chuck Klein and others, including Ohioans For Concealed Carry, asked the court to find Ohio carry restrictions unconstitutional. The plaintiffs argued that restrictions on carrying concealed firearms hampered citizens’ constitutional rights, as did the “affirmative defense” nature of the restrictions.

An Ohio citizen can carry concealed if he or she has a “reasonable cause to believe the weapon [is] needed for defensive purposes.” However, Ohio law allows these citizens to be arrested and dragged before a judge - where the burden of proving that are in need of protection falls on them. In other words, carriers are assumed guilty until they prove themselves innocent.

Though both the trial court and the Ohio Court of Appeals felt the ban on concealed-carry violated Ohioans’ constitutional rights, the 5-2 decision by the Ohio Supreme Court, overturning the previous rulings, held that the ban on individuals carrying firearms for self protection did not violate the state constitution.

“[H]owever fundamental and entrenched the constitutional heritage of our state, the right to bear arms is not absolute,” wrote Justice Paul Pfeifer in the five-justice majority opinion. “In Ohio, the right to bear arms is fundamental and is also subject to limitations.”

Quoting the 1900 Ohio Supreme Court case of State v. Hogan (which allowed the prohibition of “tramps” carrying firearms), Pfeifer wrote, “If [a person] employs those arms which he ought to wield for safety and protection of his country, his person and his property, to the annoyance and terror and danger of its citizens, his acts find no vindication in the bill of rights.”

In quoting this language, however, Pfeifer not once explained how lawfully and carefully carrying a firearm - the act of which has time and again lowered violent crime rates throughout right-to-carry states - could in any way cause “annoyance and terror and danger,” especially when it is already lawful in Ohio to openly carry firearms.

Furthermore, Pfeifer relied on yet another Ohio Supreme Court case of questionable repute, State v. Nieto. This 1920 case held that Nieto, a Mexican immigrant, was guilty of carrying a concealed weapon when police found a sidearm in his pockter while he lay in his bed in a bunkhouse. Quoting from this case, Pfeifer writes, “[The court] found the concealed-weapons statute to be a ‘proper exercise of the police power of the state.’”

This case as well is a questionable precedent, for in the dissenting opinion of Nieto, Justice Wanamaker noted the seeds of racism that spawned Ohio’s ban on concealed carry:

“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 (or tramp or Mexican), and this policy is evident upon reading the opinions.”

As for the plaintiffs’ “affirmative defense” argument, the majority found that “affirmative defenses are proven at trial, and the burden of proof, the preponderance of evidence, is upon the accused...Placing this burden of proof on the defendant is constitutional.”

Pfiefer continued: “Officers can readily ascertain whether a person is violating [the concealed-carry ban] and need not concern themselves with whether an affirmative defense is available; that issue is left to judges and juries to determine.”

As Peter Bronson of The Cincinnati Enquirer put it: “Now there’s a stirring moment in state judicial history - an impassioned defense of the principle of presumed guilt.”

Dissenting Justices Maureen O’Connor and Evelyn Stratton, however, found restrictions on the rights of Ohioans to carry concealed firearms overly burdensome and coupled with the “affirmative defense” nature of the law, found both to be contradictory to the constitution.

Writing the dissenting opinion, Justice O’Connor said, “A statute that permits arresting a citizen without regard for whether he is exercising a fundamental right, and encumbers the citizen with the burden of proof, is not narrowly tailored...

[A] person can be arrested anytime when carrying a concealed weapon, even if doing so for the constitutionally protected purpose of defense and security. This creates an unavoidable chilling effect on the free exercise of the right to keep and bear arms for defense and security.

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 that right. This is 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.”

But this point was lost on the majority, and with the reversal of Klein v. Leis, the citizens of Ohio will have to hinge their hopes on a political logjam in the state legislature.

On Sept. 28 on the north side of Cincinnati, approximately 75 people walked peacefully along the sidewalks with handguns strapped to their sides.

Vernon Ferrier, organizer of the march, told The Cincinnati Post, “It was a roaring success. There were no problems, and we got our message across. I think the state legislature will get our point.

We promoted carrying concealed weapons, which is practical but illegal, by carrying weapons openly, which is silly but legal.”

Politics As Usual

As of this writing, HB12 is still stalled in the Ohio legislature, awaiting Senate Pres. White’s formation of a conference committee. But White says he will only consider a bill that has the support of Gov. Taft. And Taft says he will only approve a bill that has the support of the OHP, even though he controls the OHP, and the positions it takes.

All the while, the safety of Ohio citizens remains in the balance.