"The Rest of the Story" on Constitutional "modernization" panel's attempts to "clarify" the right to bear arms

Editor's Note: In the summer of 2014, Buckeye Firearms Association became aware that an obcure commission was considering "modernizing" Ohio's constitution when it comes to the right to bear arms. We provided a number of articles on the subject (see here and here and here) which were intended to shed a great deal of light on workings of this commission. The following, written by one of the commission's members, provides an inside look from a man who worked to keep Article 1 Section 4 exactly as it is. ---

Earlier this year, Buckeye Firearms Association published an article (which later also appeared in the Ohio Gun Collector's Association Spring newsletter) documenting the fact that I am the the only Ohio Supreme Court candidate to actually vote to keep an Ohioans' right to bear arms unchanged. In the article I laid out how I, as the only sitting judge on the Ohio Commission reviewing the State of Ohio Constitution, protected the current wording of Ohio's provision guaranteeing Ohio citizens' right to bear arms.

Others have since asked me the reason not changing any wording was so important. So I decided I would write, like the old radio announcer Paul Harvey used to say, "the rest of the story," as to the reason even a minor word change could affect that right. And the passing of Justice Scalia only emphasizes the issue.

Ohio's Constitution, Article I, Section 4, currently reads as follows:

The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.

It may often seem that Ohio's Bill of Rights, found in Article I of Ohio's Constitution, is the same as the declaration of rights and liberties contained in the United States Constitution. In the case of the Ohio right to bear arms this may not be true, as there is a strong argument that Ohioans' right to bear arms is broader than the federal right, and thus any change to its wording, might lessen that extensive reach of the right in Ohio.

Some Important Background

The wording of Ohio's right to bear arms section of the Ohio Constitution is original to the 1851 Constitution. The old and out of use Article VIII, Section 20, of the now-outdated 1802 Constitution contained a significantly different version:

“[t]hat the people have a right to bear arms for the defense of themselves and the State; and as standing armies in time of peace are dangerous to liberty, they shall not be kept up; and that the military shall be kept under strict subordination to the civil power.”

While seemingly similar, a close examination of some apparently minor word changes reveals a huge effect. First, one could argue that the 1802 provision's focus is more on matters of defense of the "State," i.e., that is the right to bear arms is mainly to protect the "community" ("themselves") and specifically the "State" as the reason for the right. A clever argument could be made on this point.

But for some reason, and I could find no records why, the 1851 Constitutional Convention deliberately altered the words to delete the group designation of "themselves" as well as the phrase about the "State,” as the basis for the right to this bearing of arms. Instead the 1851 wording was changed to focus on the individual's rights to "defense" and "security," and not the protection of the "State."

The Ohio Supreme Court has specifically and unequivocally reached the same conclusion regarding the wording of this 1851 language:

“The language of Section 4, Article I of the Ohio Constitution is clear. This provision is divided by two semicolons, coordinating three independent clauses. Rather than focusing merely on the preservation of a militia, as provided by the U.S. Constitution's Second Amendment, the people of Ohio chose to go even further. Section 4, Article I not only suggests a preference for a militia over a standing army, and the deterrence of governmental oppression, it adds a third protection and secures to every individual person a fundamental individual right to bear arms for “their defense and security***.” This clause was obviously implemented to allow each person the liberty right to possess certain firearms for their individual defense of self and property. Accord State v. Hogan (1900), 63 Ohio St. 202, 218-19, 58 N.E. 572, 575.”

Arnold v. Cleveland, 67 Ohio St.3d 35, 43, 616 N.E.2d 163, 169 (1993).

Significantly, this Ohio Supreme Court decision also specifically, in paragraph one of its syllabus, held that the Ohio Constitution was a document of separate and important independent legal and constitutional authority that at times provided broader rights and liberties than the U.S. Constitution:

“The Ohio Constitution is a document of independent force. In the areas of individual rights and civil liberties, the United States Constitution, where applicable to the states, provides a floor below which state court decisions may not fall. As long as state courts provide at least as much protection as the United States Supreme Court has provided in its interpretation of the federal Bill of Rights, state courts are unrestricted in according greater civil liberties and protections to individuals and groups.”

Arnold at 67 Ohio St.3d 35, 616 N.E.2d 164. With Ohio's right to bear arms in a constitution with its own independent force and broader than the federal right to bear arms, what logic and reason would exist to change that provision? And thus to me, any change in the specific wording of the Article I, Section 4, could re-open a debate on whether the "individual" Ohioan retained the right to bear arms, or did the "State" or did some other collective group such as a community or State.

And with the passing of Justice Scalia, we all must remember that before the case of District of Columbia v. Heller, 554 U.S. 570 (2008) (treating the Second Amendment to the United States Constitution as providing an individual right to bear arms), many lower level federal courts had often found that the Second Amendment did not grant individuals a right to bear arms. And we must recall that the Heller decision was a 5-4 vote, with a vocal dissent. So that federal decision, if ever reversed by the U.S. Supreme Court, the Ohio Constitutional right would still protect the right to bear arms in Ohio. Moreover, to then alter the current wording of an individual Ohioan's right to bear arms in any way, might create an opportunity for some courts to revisit the issue. And thus, as a member of Ohio's commission reviewing the state Constitution, I made the motion to not have any change to the wording of Article I, Section 4, in order to protect the clear right currently existing in Ohio.

Preventing Other Possible Litigation Relating To Ohio's Very Broad Right To Bear Arms

Altering the wording of Ohio's right to bear arms section arms might also create the opportunity for others to argue that those changes to that broad view of that individual and fundamental liberty interest had, in effect, limited that right.

As we all know, Article I, Section 4 has been the basis for much litigation in recent years. Case law developed over assault weapons. See Arnold, supra. The right to carry a firearm in a public place has gone to the Ohio Supreme Court. Klein v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779, 795 N.E.2d 633. The Ohio Supreme Court also has ruled on cases involving the right to bear arms under Article I, Section 4 as it relates to the power of the home rule provision under Article XVIII, Section 3. For example, see City of Cleveland v. State, 128 Ohio St.3d 135, 2010-Ohio-6318, 942 N.E.2d 370 (R.C. 9.68 as part of a comprehensive statewide legislative enactment and applies uniformly across the state); Ohioans for Concealed Carry, Inc. v. City of Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605, 896 N.E.2d 967 (addressing the relationship between Ohio’s concealed carry statutes, R.C. 2923.126 and R.C. 9.68, and Article XVIII, Section 3).

As we can see, if any one word in Article I, Section 4 had been altered, new litigation over these issues could have been re-opened for another review. And thus I, the only judge on the commission reviewing the entire Constitution of the State of Ohio, made the specific motion to not change one word. And it passed. And the current right to bear arms in Ohio was protected. And that is the "rest of the story."

Judge Patrick F. Fischer was first elected to the Ohio First District Court of Appeals in November 2010. He is currently seeking the Republican party's nomination for Justice of the Ohio Supreme Court.