Dispatch Editorial: ''Arguments against gun restrictions carry no water''

The Columbus Dispatch's latest editorial on the concealed carry debate presents readers with an interesting problem:

On one hand, the Dispatch editors admit there most certainly is a problem with the current law, which finds persons guilty until they prove themselves innocent.

Yet on the other hand, they still claim two lower courts' rulings (which correctly found the law to be unconstitutional) should not be upheld by the Ohio Supreme Court.

Instead, the Dispatch suggests a solution followers of the school funding debacle will likely find repulsive. Their brainy solution? An invitation for the Court to issue a ruling which "clarifies the law's application" (i.e. to legislate)...

(One can also not help but notice the editors attempt to push aside constitutional language which protects citizens' right to bear arms.)

"Ohio's constitution, like the U.S. Constitution, speaks of the right to bear arms, but both constitutions were written in the context of a society that kept a small standing army and employed citizen militias as a first line of defense."

How would these Dispatch editors feel if we changed a few of their words, to address the First Amendment?

"Ohio's constitution, like the U.S. Constitution, speaks of the right to free speech and a free press, but both constitutions were written in the context of a society that had suffered without representation, under a tyrannical King."

Concealed-weapons debate Arguments against gun restrictions carry no water
Wednesday, April 23, 2003

In the court challenge to Ohio's statutory ban on carrying concealed weapons, history and precedent should weigh heavily on the side of the state law.

Article 1, Section 4 of the Ohio Constitution reads in part: "The people have the right to bear arms for their defense and security.'' The concealed-weapons statute, on the other hand, bans the carrying of such weapons except under certain narrow circumstances.

The issue is how to square the two.

The constitution uses words of affirmation, while the law uses words of prohibition. Should the law say people may carry under certain conditions, or should it say people may not carry except under those conditions?

Either way, the Ohio Supreme Court would be following tradition and precedent if it upholds the law and reaffirms that the constitution does not confer an absolute right to carry weapons, that restrictions may be placed on that right.

The Supreme Court heard oral arguments last week in Klein vs. Leis, a test case that pits gun-control groups against Second Amendment activists. The case is up on appeal by Hamilton County Sheriff Simon Leis and the state of Ohio after lower-court victories for plaintiffs Chuck Klein, a private investigator, and Patrick Feely, a former pizza-delivery driver.

Earlier, the Hamilton County Court of Appeals affirmed a trial court's ruling that the statute is unconstitutional. The appeals court held that the law is so vague that gun owners cannot tell when they are violating it and that people who are lawfully carrying concealed weapons are subject to arrest and prosecution before they can clear themselves by raising affirmative defenses that the law allows. One such defense is that the carrier is in an occupation that comes with a reasonable fear of criminal attack. In the lower courts' view, the statute unconstitutionally presumes guilt until a person proves himself innocent, because the defenses can be raised only at trial.

The plaintiffs argue that the weapons ban interfered with their work and safety. Feely was arrested, strip-searched and prosecuted for carrying a concealed weapon, then acquitted after proving that he carried it for defensive purposes related to his job. Klein was not arrested, but he argues that he risks being arrested for carrying a weapon he needs for on-the-job protection.

Some of their supporters hope to make this a landmark case that abolishes restrictions on who may carry a gun and when. But their arguments for an unfettered right are off-target.

Words in a constitution are given meaning by the context in which the words were written and by the heft of legal precedent and societal tradition.

Ohio's constitution, like the U.S. Constitution, speaks of the right to bear arms, but both constitutions were written in the context of a society that kept a small standing army and employed citizen militias as a first line of defense.

As the state argues, Ohio has had some type of ban on concealed weapons since 1859, and the bans have withstood court tests. The current law has been on the books in substantially the same form at least since 1917. In State vs. Nieto, a 1920 decision upholding the statute, the state Supreme Court held: "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 the concealment.''

Although some may paint Nieto as outdated, it remains good law today. The Dispatch, for one, does not see the need to change this interpretation of the constitution.

The Hamilton County Court of Appeals may have a point if the statute is being applied in a way that presumes guilt. But this problem can be cured by a ruling that clarifies the law's application, or the legislature could amend the law to do the same. But the state's power to restrict the carrying of concealed weapons should be upheld.

Click here to read the entire editorial in the Columbus Dispatch.

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