Ohio Supremes consider Cleveland's challenge of statewide preemption of local gun control laws

11:51am Wednesday, October 13, 2010

by Chad D. Baus

The Ohio Supreme Court heard arguments from the City of Cleveland in defense of the city's assault-weapons ban and registration requirement for handguns on Tuesday, as well as reasons why the State Attorney General's office says the anti-gun laws should be struck down.

From The Columbus Dispatch:

Cleveland officials said their local regulations would not violate a 2007 state law that attempted to establish a uniform set of rules governing gun ownership in Ohio.

"Really what this law is trying to do is take Cleveland out of the business of regulating for the safety and welfare of its own citizens," Gary Singletary, Cleveland's assistant law director, told the justices.

Lawyers for the state, however, said the court couldn't uphold Cleveland's rules without running afoul of its own 4-3 decision in 2008 that struck down the northwestern Ohio town of Clyde's ban on guns in public parks. In that ruling, justices said lawmakers clearly intended for one statewide standard on firearms rather than a patchwork of local regulations.

State Solicitor Benjamin C. Mizer said the same principle applies in the Cleveland case.

"Indeed, that is the entire point of (the statewide law): to ensure that there is a uniform application of gun laws throughout the state," Mizer said.

...Gun-rights advocates said yesterday that they expect the Supreme Court to rule the other way.

"Cleveland, instead of spending time and money and resources on the very real crime problem they have, is wasting their resources going after law-abiding citizens," said Jim Irvine, head of the Buckeye Firearms Association.

The article notes that last year, a three judge panel on the 8th District Court of Appeals sided with Cleveland, concluding that the 2007 state law did not meet the standard of a "general law" wiping out any local restrictions. At the time of the ruling, Buckeye Firearms Association Ken Hanson remarked "The Supreme Court will reverse whatever reasoning they dreamed up."

Two of the three judges on that 8th District appeals court panel (Colleen Conway-Cooney and Ann Dyke) are Democrats who are up for reelection in Cuyahoga County next month.

Attorney General Richard Cordray has said what's at stake in this case is a "state law designed to protect gun ownership and possession in Ohio."

"I am pleased that the Ohio Supreme Court accepted our appeal and will clarify the rights of Ohio's gun owners," said Cordray. "The current uncertainty over the legitimacy of these local firearms ordinances creates confusion for our local officials, as well as for thousands of gun owners."

Cordray, a 2010 Buckeye Firearms Association endorsee, is seeking reelection next month. He is opposed by Mike DeWine, who was thrown out of his U.S. Senate seat by voters in 2006, after running around sporting a Brady Campaign to Prevent Gun Violence (formerly Handgun Control Inc.) endorsement because "his record really wowed the group." Shortly before his defeat in 2006, he took a position in opposition to legislation which barred gun manufacturers, distributors, dealers or importers from frivolous lawsuits designed to put them out of business. Human Events Online named him among the Top 10 anti-gun U.S. Senators, noting that he was "consistently the only Republican to speak in favor of anti-2nd Amendment legislation on the Senate floor." An Internet search provides no indication that DeWine has given any public comment as to his opinion about the city's gun control laws (many of which resemble laws he has advocated and voted for at the national level), or about the Cleveland case.

In its coverage of yesterday's hearing, The Cleveland Plain Dealer says justices challenged and quizzed attorneys for both the city and state.

Singletary argued that the statewide gun law should not be considered a general law because it does not adequately allow the city to police its residents on the issue of gun control.

Cleveland has argued that its crime troubles are more severe than in other parts of the state, so gun control rules that apply in rural areas, for example, where crime isn't as much of a worry, should not equally apply in a big city.

"Really, what this law is attempting to do is take away the city's rights to regulate the safety of its residents," Singletary said.
But Solicitor General Benjamin Mizer, arguing for the state, said that before the statewide gun control rules took effect in December 2006, gun owners faced a patchwork of local gun rules from county to county, city to city, town to town.

It meant that a person legally toting a firearm in one place might drive a few miles to a different jurisdiction and unknowingly be in violation of gun rules. For that reason, the General Assembly established the uniform state law, thereby making it a general law.

"They have drawn a line on a ceiling of gun regulations," Mizer said. "Localities cannot raise the ceiling on those gun provisions," Mizer said.

Cleveland has about a half dozen firearm provisions that are stricter than the state law. For example, every firearm in the city must be registered, no one can openly carry a gun and assault rifles and shotguns are banned -- all of which run contrary to Ohio's uniform gun law.

The ordinances are not being enforced by police while the court cases are pending.

Singletary said the state law pre-empts the city's local control, which is not allowed by Ohio's constitution.

Justice Paul Pfeifer asked Singletary if the court lifted "blanket" pre-emptions like the state's gun law whether Cleveland would be back in court challenging other state laws. Singletary agreed that could be the net effect.

The attorneys and justices focused many of their comments on the Canton four-pronged test, which says the gun statute is a general law if it is part of an overall legislative effort to regulate firearms and is applied evenly statewide.

Cleveland argues the state's gun law fails that test because it does not cover specific firearms restrictions covered by its local ordinances.

Mizer said the state disagrees with Cleveland's position that "gun rights are regulatable as long as there is not a specific exemption in state law."