SCOTUS asked to take up State v. Weber, Ohio case with Second Amendment implications

A man whose conviction for holding an unloaded shotgun in his home while drunk was upheld by the Ohio Supreme Court is taking his case to the Supreme Court of the United States (SCOTUS).

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 narrowly ruled against him as well.

In a dissenting opinion, joined by Justices Sharon L. Kennedy and Judith L. French, Justice Patrick F. Fischer write 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 observed the Weber 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.”

Justice Fischer also noted that state and federal courts would benefit from more clarity from SCOTUS 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.

Justice Patrick DeWine concurred in the majority opinion, but also argued separately that the majority's analysis was not protective of Second Amendment rights because it "improperly applied an 'interest balancing' test rather than evaluate the challenged restriction based upon the original understanding of the Second Amendment," according to the court.

If Weber's petition for a writ of certiorari with the U.S. Supreme Court is granted, those calling for SCOTUS to provide clarity may get their wish. Weber is asking the court to determine the proper standard of constitutional review of a law that impacts the core value of the Second Amendment.

"The disagreement in the Ohio Supreme Court is emblematic of the confusion gripping the nation's lower courts," he wrote. "But confusion is not the only problem. The outcome of a wrongfully applied standard can significantly dilute the core protection of the Second Amendment."

As firearms rights advocate David Codrea wrote when covering this case for

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. He is co-founder of BFA-PAC, and served as its Vice Chairman for 15 years. He is the editor of, which received the Outdoor Writers of Ohio 2013 Supporting Member Award for Best Website, and is also an NRA-certified firearms instructor.

Related Articles:

Does Ohio Supreme Court ruling threaten right to bear arms in own home?

Gun and Alcohol Case Could Put Citizens at Risk in Their Own Homes

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