Does Ohio Supreme Court ruling threaten right to bear arms in own home?
In a 4-3 ruling, the Ohio Supreme Court voted to uphold the conviction of a Clermont County man for holding a shotgun in his home while intoxicated.
The case is State v. Weber, which as has been noted on our site, "involves a situation where despite the defendant’s wife telling police there was no longer a problem, they pressed their way in. There they found her admittedly inebriated but nonthreatening husband who, while he did have a shotgun, told police it was not loaded, which they proved for themselves."
Weber was charged with violating R.C. 2923.15(A), which states: “No person, while under the influence of alcohol or drugs of abuse, shall carry or use any firearm or dangerous ordnance.”
After a bench trial, Weber was found guilty and sentenced to 10 days in jail with all 10 days suspended. He also was placed on community control for one year, ordered to complete eight hours of community service, and fined $100.
When the Twelfth District Court of Appeals court upheld his conviction, it ruled as follows:
Furthermore, R.C.2923.15 does not, as suggested by appellant, criminalize the mere presence of a firearm in the home of an intoxicated person. Nor does the statute, as suggested by appellant, prohibit a person from carrying or using a firearm after consuming alcoholic beverages. Rather, the statute only prohibits the use or carrying of a firearm by a person who has imbibed to the point of intoxication.
Mr. Weber appealed to the Ohio Supreme Court, and that body has now narrowly ruled against him as well.
From the Highland County Press:
A divided Supreme Court ruled that Ohio’s law prohibiting carrying or using a firearm “while under the influence of alcohol or any drug of abuse” does not violate the Second Amendment of the U.S. Constitution.
Frederick Weber argued that the Second Amendment protected him from arrest for the gun violation because he was in his home when officers were called in February 2018.
In the Court’s lead opinion, Chief Justice Maureen O’Connor noted that the U.S. Supreme Court’s Second Amendment decisions have made clear that the right to bear arms is not without limitation, and that Ohio’s law is a targeted restriction that applies for a very limited time due to the inherently dangerous nature of carrying or using a gun while intoxicated.
Justices Michael P. Donnelly and Melody J. Stewart joined the chief justice’s opinion.
Justice R. Patrick DeWine concurred in judgment only with a separate opinion. Justice DeWine agreed with the majority’s conclusion that the statute was not unconstitutional as applied to the particular facts of Weber’s case. But he found the majority’s analysis was not protective of Second Amendment rights. In Justice DeWine’s view, the majority improperly applied an “interest balancing” test rather than evaluate the challenged restriction based upon the original understanding of the Second Amendment.
In a dissenting opinion, Justice Patrick F. Fischer noted that courts have been divided about the proper way to test the constitutionality of firearm laws since the U.S. Supreme Court issued its landmark District of Columbia v. Heller decision in 2008. He noted today’s decision follows an interest-balancing test created by federal courts. He suggested Ohio adopt another approach that focuses “on the text, history, and tradition of the Second Amendment to see if the challenged law or rule is consistent with the scope of the right as originally understood.”
Justices Sharon L. Kennedy and Judith L. French joined Justice Fischer’s dissent.
In his dissent, Justice Fischer noted that state and federal courts would benefit from more clarity from the U.S. Supreme Court on how to evaluate challenges to laws claiming to violate the Second Amendment. He wrote that instead of using the “convoluted” two-step approach, the Court should follow the Heller and McDonald decisions and look at the text, history, and tradition of the Second Amendment.
As firearms rights advocate David Codrea wrote when covering this case for AmmoLand.com:
The “point of intoxication,” as defined by Ohio’s OVI laws is a Blood Alcohol Content of 0.08, or 0.02 if under 21. Significantly, a citizen old enough to serve in the military can reach that level after only one drink. And it’s fair to ask how many of us, especially with the holidays approaching, will be inclined to consume several adult beverages over the course of a family gathering. What if you’re carrying, and not all blurry-eyed and speech-slurring like the hapless Mr. Weber was reported to be, but just right there at the legal limit for driving? Where is the “compelling state interest” to define that as the limit point?
"Still, this isn’t a “popular” case for most 'gun rights' lobbying groups to make a big noise defending—who wants to endure the optics of arguing “guns for drunks”? Regardless, the fact remains that there are already ways to deal with people who brandish, and who attack others with weapons. This isn’t about public safety, it’s about another inroad to citizen disarmament. As for people who have proven they can’t or won’t control themselves, taking their tools but leaving them able to harm others is never the solution."
Chad D. Baus served as Buckeye Firearms Association Secretary from 2013-2019, and continues to serve on the Board of Directors. He is co-founder of BFA-PAC, and served as its Vice Chairman for 15 years. He is the editor of BuckeyeFirearms.org, which received the Outdoor Writers of Ohio 2013 Supporting Member Award for Best Website, and is also an NRA-certified firearms instructor.