The Right to Bear Arms in Ohio:
A Fundamental Right That Is Neither Fundamental Nor Much of a Right
Klein v. Leis
99 Ohio St.3d 537, 2003 Ohio 4779, 795 N.E.2d 633
Decided September 24, 2003
I.
INTRODUCTION
In September of 2003, the Ohio Supreme Court decided Klein v. Leis.1 The court
considered whether section 2923.12 of the Ohio Revised Code, which makes the unprivileged
carrying of a concealed weapon a felony of the fourth degree, 2 is an unconstitutional
infringement on the fundamental right for a citizen to bear arms,
3
expressly acknowledged in
Ohio’s Constitution.4 In addition, the court considered whether the affirmative defenses of
section 2923.12(C) of the Revised Code were unconstitutionally vague. 5 In a five to two split
decision the court held that “there is no constitutional right to bear concealed weapons” and that
the statutory defenses that may be used are not unconstitutionally vague.6
II.
STATEMENT OF THE CASE
Klein was a citizen’s suit to enjoin law enforcement officials from enforcing the statutory
ban on the carrying of concealed weapons.7 Evidence was presented in the trial court that these
1
99 Ohio St.3d 537, 2003 Ohio 4779, 795 N.E.2d 633 (2003).
See OHIO REV. CODE ANN. § 2923.12 (Anderson 2003).
3
See Klein, 99 Ohio St.3d at 538, 795 N.E.2d at 635.
4
See OHIO CONST. art. I, § 4.
5
See id. at 541, 795 N.E.2d at 638; see also OHIO REV. CODE ANN. § 2923.12(C) (An affirmative defense may be
asserted if “[t]he weapon was carried or kept ready at hand . . . for defensive purposes, while . . . engaged in or was
going to or from the actor's lawful business or occupation, which business or occupation was of such character . . .
[that] the actor [was] particularly susceptible to criminal attack, such as would justify a prudent person in going
armed. . . . for defensive purposes, while the actor was engaged in a lawful activity and had reasonable cause to fear
a criminal attack upon the actor or a member of the actor's family, or upon the actor's home, such as would justify a
prudent person in going armed. . . . [or] for any lawful purpose and while in the actor's own home.”).
6
Klein, 99 Ohio St.3d at 541, 542, 795 N.E.2d at 638, 639.
7
See Klein v. Leis, 146 Ohio App.3d 526, 2002 Ohio 1634, 767 N.E.2d 286 (1st Dist. 2002), rev’d and remanded by
99 Ohio St.3d 537, 2003 Ohio 4779, 795 N.E.2d 633 (2003).
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citizens were subject to arrest, though they had not been actually arrested for carrying a
concealed weapon.8 The Hamilton County court applied a strict scrutiny standard in finding that
the legislation impinged upon “fundamental rights.”9 The appeals court agreed with the standard
of the court below, but chose to affirm the ruling using the lower “reasonable” or “rational basis”
standard declaring that the offending statute “passes no level of judicial scrutiny.”10
With regard to the affirmative defenses contained in the statute, the record of the trial
court reflected that these were “largely ignored at the initial point of contact between a citizen
and an officer.”11 It found the defenses to be “constitutionally vague[,] . . . [they] may not be
understood by a citizen of reasonable intelligence, and they are susceptible to arbitrary
enforcement.”12 Evidence presented at trial “demonstrated that a senior police official with
many years of law enforcement experience could not determine whether an affirmative defense
was applicable.”13 The witness acknowledged that he would have had to call a prosecutor or an
attorney to ascertain whether they were applicable in a given situation.14 The decision of the
appellate court upholding the lower court’s ruling was unanimous.15
III.
REASONING AND ANALYSIS OF THE MAJORITY OPINION
Section 4 of Article I of the Ohio Constitution declares: “The people have the right to
bear arms for their defense and security . . . .”16 The Ohio Supreme Court in Klein briefly
discussed the history of the clause which has its roots in the Bill of Rights of the original 1802
8
Id. at 533, 767 N.E.2d at 291.
Id. at 533–34, 767 N.E.2d at 292.
10
Id. at 534, 767 N.E.2d at 292.
11
Id. at 535-36, 767 N.E.2d at 293.
12
Klein, 146 Ohio App.3d at 536, 767 N.E.2d at 293.
13
Id. at 536-37, 767 N.E.2d at 294.
14
Id. at 537, 767 N.E.2d at 294.
15
Id. at 542, 767 N.E.2d at 298.
16
OHIO CONST. art. I, § 4.
9
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Ohio Constitution.17 The clause guaranteeing the right to bear arms, as it presently reads, was
part of the Ohio Constitution of 1851 and remains a “part of Ohio’s heritage.” 18
At the
Convention of 1851, revising the State Constitution, a Knox County Delegate referred to the
Ohio Bill of Rights, including the right-to-bear-arms clause, “as ‘the very place where the great
fundamental rights of the people are enunciated and declared.’”19 There was very little if any
discussion of the clause at the 1850 – 1851 Convention leading the court in Arnold v. City of
Cleveland,20 reiterated by the Klein court, to “’surmise that no debate ensued over [the right-tobear-arms clause] because the right to possess and use certain arms under certain circumstances
was widely recognized and uncontroversial.’”21
The Klein court disingenuously placed its imprimatur on the principle elucidated in
Arnold that “the right to bear arms is fundamental” while at the same time drastically limited the
right by relegating it to the lowest level of protection from state actions regulating the
“fundamental” right.22 However “fundamental,” and however “entrenched” the right is in the
“constitutional heritage” of Ohio, the court explained, the right, as is true of all fundamental
rights, has its limitations.23 Notwithstanding the “fundamental”ness of the right, and over the
objections of the dissent,24 the court applied the minimal “reasonable” test to the statutory ban on
Klein, 99 Ohio St.3d at 538–40, 795 N.E.2d at 636 – 37.
Id. at 538–39, 795 N.E.2d at 636.
19
Id. at 539, 795 N.E.2d at 636 (quoting II Report of the Debates and Proceedings of the Convention for the
Revision of the Constitution, 1850-51, 70 (1851)) (emphasis added).
20
67 Ohio St.3d 35, 616 N.E.2d 163 (1993).
21
Klein, 99 Ohio St.3d at 539, 795 N.E.2d at 636 (quoting Arnold, 67 Ohio St.3d at 43, 616 N.E.2d at 169)
(alteration in original).
22
Id. at 539–40, 795 N.E.2d at 636–37.
23
Id. at 539, 795 N.E.2d at 636.
24
See id. at 542-43, 795 N.E.2d at 639–40 (O’Connor, J., dissenting) (explaining that “intermediate scrutiny” is the
proper test to assess whether a statute “infringes” upon the fundamental right to bear arms). The dissent explained
that “[g]enerally, infringements upon fundamental rights are subject to strict scrutiny . . . .” Id. at 543, 795 N.E. at
639–40 (citing State v. Thompson, 95 Ohio St. 3d 264, 2002 Ohio 2124, 767 N.E.2d 251 (2002)); accord Painesville
Bldg. Dept. v. Dworken & Bernstein Co., L.P.A., 89 Ohio St. 3d 564, 2000 Ohio 488, 733 N.E.2d 1152 (2000)
(speech); Roe v. Wade, 410 U.S. 113 (1973) (privacy); Saenz v. Roe, 526 U.S. 489 (1999) (travel); Humphrey v.
Lane, 89 Ohio St.3d 62, 2000 Ohio 435, 728 N.E.2d 1039 (2000) (religion); Sorrell v. Thevenir, 69 Ohio St.3d 415,
17
18
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concealed weapons.25 The court provided no justification for the application of the lowest level
of scrutiny to a right it affirmed as “fundamental” other than it is within the police power of the
State.26
The court had to strain to find any support for its position that Ohio’s concealed weapons
ban is reasonably applied to all Ohioans. In support of its proposition, the court cited two cases,
State of Ohio v. Hogan27 and State of Ohio v. Nieto,28 and silence on the issue at state
constitutional conventions in 1874 and 1912.29 The Hogan court spoke only in “dicta” on the
subject30 while upholding a statute criminalizing the entry, by a tramp, of the curtilage of another
without permission.31 In fact, the Hogan court reaffirmed that “the constitutional right to bear
arms is intended to guarantee to the . . . citizen [the] means for defense of self and property . . . .
[while] secur[ing] to him a right of which he cannot be deprived . . . .”32 This is the “dicta” upon
which the Klein court erroneously relied.
The Hogan court limited the right by appealing to the common law in explaining that the
right “enjoins a duty in execution” that does not countenance the wielding of arms “to the
annoyance and terror and danger” to fellow citizens, nor does it warrant “vicious persons to carry
1994 Ohio 38, 633 N.E.2d 504 (1994) (trial by jury); Primes v. Tyler, 43 Ohio St.2d 195, 331 N.E.2d 723 (1975)
(equal protection).
25
Klein, 99 Ohio St.3d. at 541, 795 N.E.2d at 638.
26
Id.
27
63 Ohio St. 202, 58 N.E. 572 (1900).
28
101 Ohio St. 409, 130 N.E. 663 (1920).
29
See Klein, 99 Ohio St.3d at 539, 795 N.E.2d at 637–68.
30
See id. at 539, 795 N.E.2d at 637.
31
Hogan, 63 Ohio St. at 208 – 09, 58 N.E. at 572. A tramp was defined as “’[w]hoever, except a female or blind
person, not being in the county in which he usually lives or has his home, . . . found going about begging and asking
subsistence by charity . . . .’” Id. at 208. 58 N.E. at 572 (quoting the then extant section 6995 of the Revised
Statutes). “’[A]ny tramp who enter[ed] a dwelling house, or yard or inclosure [sic] about a dwelling house, against
the will or without the permission of the owner or occupant thereof, or [did] not, when requested, immediately leave
such place, or is found carrying a firearm, or other dangerous weapon, or [did] or threanen[ed] to do any injury to
the person, or real or personal property of another, [could] be imprisoned in the penitentiary [for] not more than
three years nor less than one year . . . .’” Id. (quoting the then extant section 6995 of the Revised Code).
32
Id. at 218, 58 N.E. at 575 (emphasis added).
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weapons with which to terrorize others.”33 At the common law, sporting “unusual and dangerous
weapons to the terror of the people” was prohibited.34 “A man may carry a gun for any lawful
purpose, for business or amusement, but he cannot go about with that or any other dangerous
weapon to terrify and alarm a peaceful people.”35
The Klein court recited this same language used by the Hogan court, but it failed to
recognize the context or the meaning of the words. The only way to reconcile the Klein holding
with Hogan is to conclude that the Supreme Court of Ohio believes, as a matter of law, that an
Ohioan, or any other citizen for that matter, who carries a concealed weapon is “vicious” per se.
But in Ohio, “vicious” is a term of art usually applied to dogs.36 But even an Ohio dog is not
presumed “vicious” until it has, “without provocation[,] . . . killed or caused serious injury to any
person, . . . has killed another dog,” or belongs to a specific breed. 37 Ohio does have an
analogous statute banning “vicious” or “dangerous” people from acquiring, having, carrying or
using a firearm – it has a weapons disability statute.38 But in Klein there was no constitutional
challenge to this particular statute and there was no evidence that those challenging the
concealed weapons ban were “vicious” or had any other statutory disability to carry a weapon.
Nieto was a Mexican working at a steel mill in Stark County, Ohio, and living in a
bunkhouse provided by the mill.39 Upon information that Nieto had threatened the company
cook the prior evening with a pistol, police officers entered his bunkhouse early in the morning
Id. at 218 – 19, 58 N.E. at 575 (emphasis added).
Id. at 219, 58 N.E. at 575.
35
Hogan, 63 Ohio St. at 219, 795 N.E. at 575.
36
See OHIO REV. CODE ANN § 955.11(A)(4)(a).
37
Id.
38
See id. § 2923.13. Like the statute in Hogan which denied the possession of a concealed weapon to a certain class
of people, “tramps,” the statute places a “disability” on those who fit within a certain class: those who are under
indictment or have been convicted for certain felonies or drug offenses, who are drug dependent or a chronic
alcoholic, or who are mentally incompetent. Id.
39
See Neito, 101 Ohio St. at 410–11, 130 N.E. at 663.
33
34
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and found him sleeping.40 When they tried to roll him over, a revolver fell out of his pocket.41
He was subsequently indicted, tried, and acquitted.42 The trial court instructed the jury that if
“the defendant, while in his own home, had in his possession . . . a concealed weapon, he would
not be guilty of an offense under the indictment charging ‘carrying concealed weapon.’” 43 The
prosecutor appealed the trial judge’s charge to the jury.44
The issue on appeal was whether the company bunkhouse was Nieto’s home and as such
“he had a right, as a matter of law, to carry a weapon concealed on his person while in that
bunkhouse.”45 The Nieto court held that the statute at hand was “plain and unambiguous in its
terms. It contain[ed] no exception in favor of place.” Though the court went on to discuss the
constitutionality of the concealed weapons statute in general, this discussion was all dicta, the
question at bar having been answered. After citing and reciting the dicta from Hogan the Nieto
court ended its digression: “But it is not necessary to go so far as this to determine that the court
erred in the case at bar, for the accused was not in his own home or on his own premises.”46
Nieto added some additional dicta to the discussion, reiterated by the Klein court,
suggesting that a statute banning the carrying of a concealed weapon “does not operate as a
prohibition against carrying weapons, but [merely] as a regulation of the manner of carrying
them.”47 While the Klein court chose to exalt this dictum to constitutional status, it did not even
comment on Nieto’s reaffirmation of the Hogan decree that the constitutional right to bear arms
is a “guarantee” that “cannot be deprived.”48
40
Id. at 424, 130 N.E. at 667 (Wanamaker, J, dissenting).
Id. (Wanamaker, J, dissenting).
42
Id. (Wanamaker, J, dissenting).
43
Id. (Wanamaker, J, dissenting).
44
Neito, 101 Ohio St. at 425, 130 N.E. at 667 (Wanamaker, J, dissenting).
45
Id. at syllabus.
46
Id. at 416, 130 N.E. at 665.
47
Id. at 413, 130 N.E. at 664; see also Klein, 99 Ohio St.3d at 540, 795 N.E.2d at 637.
48
See Nieto, 101 Ohio St. at 414, 130 N.E.2d at 664; see also Hogan, at 63 Ohio St. at 218, 58 N.E. at 575.
41
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In attempt to add some “oomph” to its argument, the Klein court repeated the judicial
psycho-babble quoted by Nieto in its dicta: “’One of the objects of the law is the avoidance of
bad influences which the wearing of a concealed deadly weapon may exert upon the wearer
himself, and which in that way, as well as by the weapon’s obscured convenience for use, may
tend to the insecurity of other persons.’”49 (It makes one wonder whether plain-clothes or undercover police officers and Federal Agents are so affected; unless, of course, they are of a different
breed than the typical citizen of Ohio – not the inherently “vicious” type.) The Nieto dissenter,
Justice Wanamaker, chided the Nieto majority for using the Alabama Supreme Court case and
for citing other such decisions “in support of the doctrine upheld by [the] court.”50 He explained
that these precedents were largely from “southern states” and that “the race issue there ha[d]
extremely intensified a decisive purpose to entirely disarm the negro, and this policy [was]
evident upon reading the opinions.”51 Could the fact that Nieto was a Mexican color the court’s
decision in any way?
The third line of reasoning that the Klein court relied on was the paucity of discussion
concerning the issue in the state constitutional conventions in 1874 and 1912.52 The court found
significance in the fact that the original statute banning the carrying of concealed weapons was
passed only eight years after the ratification of the Constitution of 1851 and “has remained a part
of Ohio law, verbatim or in a modified form, ever since.”53 Delegates to the Third Constitutional
Convention of Ohio (1873 – 1874) “did not offer any amendments or debate concerning . . . the
49
See Klein, 99 Ohio St.3d at 540, 795 N.E.2d at 637 (quoting Nieto, 101 Ohio St. at 415–16, 130 N.E. at 665); see
also Dunston v. State of Alabama, 27 So. 333, 334 (1899). It is unfortunate that neither the Klein nor Nieto courts
chose to include more of the short, two paragraph, opinion upholding a prohibition of carrying a concealed weapon
in one’s home. See id. The Alabama Supreme Court added: “The mental suggestions which proceed from constant
contact with weapons specially adapted to, and usually worn for the purpose of inflicting bodily harm to persons,
may come as well when the wearer is in his domicil as elsewhere.” Id. (emphasis added).
50
Nieto, 101 Ohio St. at 430, 130 N.E.2d at 669 (Wanamaker, J, dissenting).
51
Id. (Wanamaker, J, dissenting).
52
See Klein, 99 Ohio St.3d at 540–41; 795 N.E.2d at 637–38.
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right-to-bear-arms clause.”54 In fact, the committee tasked with considering revisions to the Bill
of Rights did not “’deem[] it advisable to make any change[s] . . . .’”55
The Klein court asserted that there were two proposals, Nos. 3 and 165, at the Fourth
Constitutional Convention in 1912 regarding the right to bear arms which were eventually
“indefinitely postponed.”56 However, the Official Record of the Proceedings, cited by the court,
provides no text of the proposals.57 In fact, there is no evidence in the record that proposal No. 3
dealt with section 4 of Article I at all, only that it was “an amendment to Article I of the
constitution. . . . [r]elative to the Bill of Rights,”
58
The information on proposal No. 165 is
almost as scanty.59 Though the Official Record does specify that the proposal dealt with section
4 of Article I, it doesn’t say which clause or clauses were to be affected. 60 The proposal could
have easily been seeking to amend the “standing armies . . . are dangerous to liberty” or the
“strict subordination to the civil power” clauses.61
Apparently, for the Klein court at least, silence on an issue like the right to bear arms at
State Constitutional Conventions is dispositive.
Notwithstanding the strong affirmation of
Ohio’s Bill of Rights in each of its constitutional conventions and the fact that both of the cases
upon which the Klein court relies strongly reaffirm the constitutional right to bear arms, it is
incredulous that the opinion of the court “suggests how limited Ohioans of the late nineteenth
century considered the right to bear arms to be.”62 This is an especially dubious conclusion in
light of what the court had written only two paragraphs earlier surmising that there was no debate
53
Id. at 540, 795 N.E.2d at 637.
Id.
55
Id. (quoting II Proceeding and Debates of the Third Constitutional Convention, Part 2, 1736 (1874)).
56
Id. at 540, 795 N.E.2d at 638.
57
See Journal of the Constitutional Convention of the State of Ohio 1077 (1912).
58
Klein, 99 Ohio St.3d at 540, 795 N.E.2d at 637.
59
Id. at 1101.
60
See id.
61
See OHIO CONST. art. I, § 4.
54
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because, to the Drafters of the original Constitution, the right “was widely recognized and
uncontroversial.”63 The more reasonable explanation, therefore, is that the delegates at the later
Conventions were satisfied with the section, they chose not to tinker with it, water it down, or in
any way change its plain meaning.
The court also gave weight to the fact that the “statute . . . has been a part of our legal
heritage since 1859 . . . .”64 But, if this were the appropriate test, then there would be little need
for a state constitution; and “Jim Crow” laws would still be enforced, because, after a time, they
too had become “a part of the legal heritage” of many states. 65 To say that the Ohio State
Constitutional Conventions of 1871 and 1912 were “constitutionalizing” a specific 1859 statute
by saying nothing about it is hogwash and poppycock. The delegates to these conventions were
concerned with Ohio’s Constitution; they were not engaged in a comprehensive review or
rewrite of the General Code. In any event, the mere fact that a law has been on the books for a
long time is not a valid constitutional test.66 From the pen of Justice Oliver Wendell Holmes
came the now familiar maxim, quoted approvingly by Ohio’s Supreme Court: “It is revolting to
62
Id.
Klein, 99 Ohio St.3d at 539, 795 N.E.2d at 636 (quoting Arnold, 67 Ohio St.3d at 43, 616 N.E.2d at 169).
64
Klein, 99 Ohio St.3d at 540, 795 N.E.2d at 638.
65
See Regents of Univ. of Cal. V. Bakke, 438 U.S. 265, 393–94 (1978) (Marshall, J., dissenting) (discussing briefly
the history of state “Jim Crow” laws and their eventual demise in the United States Supreme Court as
unconstitutional).
66
See Bowers v. Hartwig, 478 U.S. 186, 199 (1986) (Blackmun, J., dissenting) (chiding the majority’s reasoning that
a Georgia statute banning homosexual activity was constitutionally valid, in part because “the laws of . . . many
States . . . still make such conduct illegal and have done so for a very long time”); see also Lawrence v. Texas, 123
S.Ct 2472, 2483 (2003) (affirming the Bowers minority: “[ T]he fact that the governing majority in a State has
traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the
practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.”); Roe
v. Wade, 410 U.S. 113, 117 (1973) (overturning a Texas statute criminalizing abortion that had been on the books
since 1854).
63
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have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” 67
A law is not constitutional simply because it has been on the books since 1859 either.
After neutering the fundamental, constitutional right to bear arms, it was easy for the
court to apply the “reasonable” or rational basis standard.68 Under this standard the court is to
defer to the “judgment and wisdom” of the legislature and should not overturn the legislation
“’unless there is a clear and palpable abuse of power . . . .’”69 These “clear principles” guided
the court to the conclusion that if the “General Assembly has determined that prohibiting the
carrying of concealed weapons helps maintain an orderly society;” what right would the court
have to substitute its judgment for that of the legislature?70 The “goals and the means” to
achieve that aim, are reasonable.71
IV.
THE DISSENT AND A HIGHER LEVEL OF SCRUTINY
Justice O’Connor, joined by Justice Lundberg Stratton, said that “[t]he majority
incorrectly invoke[d] a reasonableness” standard where the higher, strict scrutiny standard is
generally the norm for a fundamental right.72 In order for a statute to survive strict scrutiny, it
“must be necessary to serve a compelling state interest.”73 Justice O’Connor, however, settles on
an “intermediate” level scrutiny “[b]ecause a restriction on the manner of exercising a right
necessarily leaves open other means of exercising the right [thus] the lesser . . . scrutiny is
67
Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 469 (1897); see also Thacker v. Board of
Trustte of Ohio St. Univ., 35 Ohio St.2d 49, 70, 298 N.E.2d 542, 554 (1973); Wetzel v. Weyant, 41 Ohio St.2d 135,
139, 323 N.E.2d 711, 713 (1975).
68
Klein, 99 Ohio St.3d at 541, 795 N.E.2d at 638.
69
Arnold, 67 Ohio St.3d at 48, 616 N.E.2d at 172 (quoting Allion v. Toledo, 99 Ohio St. 416, 124 N.E. 237, syllabus
(1919)). The Arnold court upheld a Cleveland ordinance which prohibited the possession and sale of so-called
“assault weapons” within the city. See id. at 38, 616 N.E.2d at 166. The ordinance was a ban only on a type of
weapon; it didn’t deal with restrictions on who may carry or on how they are carried. See id. at 48-49, 616 N.E.2d at
173.
70
Klein, 99 Ohio St.3d at 541, 795 N.E. at 638.
71
Id.
72
Id. at 542–43, 795 N.E.2d at 639 (O’Connor, J. dissenting).
73
Id. at 543, 795 N.E.2d at 640 (O’Connor, J. dissenting).
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applicable.”74 Since Judge O’Conner saw “manner” restrictions to free speech on the same par
as “manner restrictions on the right to bear arms” she concluded that they both deserve the same
level of scrutiny.75
In order for a statute or regulation to survive intermediate scrutiny, she continued, it must
be “narrowly tailored to serve an important government[al] interest and leave[] open other means
of exercising the right.”76 Justice O’Connor accepted the majority’s “public safety” argument,
satisfying the “important governmental interest prong” of the test, however, “[a] statute that
permits arresting a citizen without regard for whether he is exercising a fundamental right, and
encumbers the citizen with the burden of proof, is not narrowly tailored.”77 Under the current
statute, a citizen may be arrested while she is engaged in a lawful, even constitutional, activity. 78
The mere possibility of arrest “creates an unavoidable chilling effect on the free exercise of the
right to bear arms for defense and security.”79 Should someone have to submit themselves to the
possibility of arrest and trial each and every time they exercise a fundamental right? “This is as
offensive as a statute allowing the arrest of anyone who speaks in public, but permitting the
speaker to prove at trial that the speech was constitutionally protected.” 80 An unconstitutional
statute is not saved simply because it “provides that a citizen may point to the Constitution in her
defense at trial.”81 The mere arrest “violates the fundamental right.”82
Id. (O’Connor, J. dissenting); accord Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983)
(subjecting manner restrictions on speech to intermediate scrutiny).
75
Klein, 99 Ohio St.3d at 543, 795 N.E.2d at 640 (O’Connor, J. dissenting).
76
Id. (O’Connor, J. dissenting); see also Perry Educ. Ass’n, 460 U.S. at 45.
77
Klein, 99 Ohio St.3d at 544, 795 N.E.2d at 640 (O’Connor, J. dissenting). Cf. Reno v. American Civil Liberties
Union 521 U.S. 844, 882 (1997).
78
See Klein, 99 Ohio St.3d at 544, 795 N.E.2d at 640 (O’Connor, J. dissenting).
79
Id. at 544, 795 N.E. at 640–41 (O’Connor, J. dissenting).
80
Id. at 544, 795 N.E.2d at 641 (O’Connor, J. dissenting); See also Houston v. Hill, 482 U.S. 451 (1987).
81
See Klein, 99 Ohio St.3d at 544, 795 N.E.2d at 641 (O’Connor, J. dissenting).
82
Id. (O’Connor, J. dissenting).
74
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A “narrowly tailored” statute is one which places the “burden on the state to prove that
the accused was not exercising [a] constitutionally protected right . . . .”83 Rather than establish
affirmative defenses if the “constitutionally protected purposes of security and defense were
excepted from the statute’s prohibitions . . . arrests [could be made] for failure to comply with
the statute[,] but not for merely exercising a constitutionally protected right.” 84 Even though
regulating the manner of bearing a weapon may be for a compelling “public-safety interest,” it
may do only that which is “absolutely necessary to promote public safety.”85 At least thirty-two
other states have “successfully balanced” their “public-safety interest” with the rights of their
citizens to bear arms.86 Justice O’Connor offered no specific statutory remedy to cure the
constitutional ill of the Revised Code, that task is “within the ambit of the legislature” and the
“citizens of Ohio” to balance the interests between the rights of the people and legitimate
governmental interests.87
V.
EPILOGUE & DÉNOUEMENT
An issue not confronted by the majority or addressed in the dissent was the modern effect
of the statute.88 While the Klein court uses the 1920 Nieto decision as its authority, it gives short
Id. at 545, 795 N.E.2d at 641 (O’Connor, J. dissenting).
Id. (O’Connor, J. dissenting).
85
Id. (O’Connor, J. dissenting).
86
See Klein, 99 Ohio St.3d at 545, 795 N.E.2d at 641. (O’Connor, J. dissenting). See ALA. CODE § 13A-11-75
(2003); ARIZ. REV. STAT. § 13-3112 (2003); ARK. CODE ANN. § 5-73-301 et seq. (Mishie 2003); COLO. REV. STAT. §
18-12-105 (2003); FLA. STAT. ch. 790.06 (2003); GA. CODE ANN. § 16-11-129 (2003); IDAHO CODE § 18-3302
(2003); IND. CODE § 35-47-2 (2003); KY. REV. STAT. § 237.110 et seq (Michie 2003); LA. REV. STAT. ANN. §
40:1379.3 (Michie 2003); ME. REV. STAT. ANN. tit. 25, § 2003 (West 2003); MICH. COMP. LAWS § 28.425 et seq.
(2003); MINN. STAT. § 624.714 (2002); MISS. CODE ANN. § 45-9-101 (2003); MONT. CODE ANN. § 45-8-321 (2003);
NEV. REV. STAT. 202.3653 et seq. (2003); N.H. REV. STAT. ANN. § 159:6 (2003); N.M. STAT. ANN. § 29-19 (Michie
2003); N.C. GEN. STAT. § 14-415.10 et seq. (2003); N.D. CENT. CODE § 62.1-04-03 (2003); OKLA. STAT. tit. 21, §
1290.1 et seq. (2003); OR. REV. STAT. § 166.291 (2002); 18 PA.CONS. STAT. § 6109 (2003); S.C. CODE ANN. § 23-31205 et seq. (2002); S.D. CODIFIED LAWS § 23-7-7 (Michie 2003); TENN. CODE ANN. § 39-17-1351 (2003); TEX.
GOV’T. CODE § 411.171 et seq. (2003); UTAH CODE ANN. § 53-5-704 ; VA. CODE ANN. § 18.2-308 (Michie 2003);
WASH. REV. CODE § 9.41.070 (2003); W. VA. CODE § 61-7-4 (2003); WYO. STAT. ANN. § 6-8-104 (Michie 2003).
87
Klein, 99 Ohio St.3d at 545, 795 N.E.2d at 641 (O’Connor, J. dissenting).
88
See Klein, 146 Ohio App. 3d. at 535, 767 N.E.2d at 293.
83
84
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Scott B. Johnson
shrift to the authority of one of its decisions only a decade ago in Arnold.89 To the Ohio
Supreme Court of 1993, “[t]he language of section 4, Article I of the Ohio Constitution [was]
clear . . . . [The section was] implemented to allow a person to possess certain firearms for
defense of self and property.”90 Furthermore, “[t]he right of defense of self, property and family
is a fundamental part of our concept of ordered liberty. To deprive our citizens of the right to
possess any firearm would thwart the right that was so thoughtfully granted by our forefathers
and the drafters of our Constitution.”91
The Arnold court was considering whether a Cleveland ordinance banning “assault
weapons” was constitutional.92 In upholding the regulation, the court said that if it had banned
all firearms, “[c]learly, the city would have exceeded its authority . . . and would have violated
section 4, Article I . . . .”93 The Klein plaintiffs argued this very point: the effect of the statute,
“in conjunction with the other statutes and the practice of arrest for openly carrying a firearm,
acts as a total prohibition on the carrying of firearms.”94 Perhaps a hundred years ago, “one
could carry a pistol . . . on or about his person, provided only that it was not concealed. But
today, one may not.”95 The trial court found that “if one were to openly carry a firearm, one
would be arrested for inducing panic or for disorderly conduct.”96 In any event, “[n]o Ohioan
89
Both Chief Justice Moyer and Justice Resnick concurred in Klein, see Klein, 99 Ohio St.3d at 542, 795 N.E.2d at
639, and voted in the majority in Arnold. See Arnold, 67 Ohio St.3d at 52, 616 N.E.2d at 176. Justice Pfeifer, who
wrote Klein applying the “reasonable” standard of review, concurred with the dissent who felt that strict scrutiny
should have been applied in Arnold. See id. at 53, 55, 616 N.E.2d at 176-77 (Hoffman, J., dissenting).
90
Arnold, 67 Ohio St.3d at 43, 616 N.E.2d at 169.
91
Id. at 44, 616 N.E.2d at 169–70.
92
Id. at 38, 616 N.E.2d at 166.
93
Id. at 49, 616 N.E.2d at 173.
94
See Klein, 146 Ohio App. 3d. at 535, 767 N.E.2d at 293.
95
Id.
96
Id. (citing OHIO REV. CODE ANN. §§ 2917.31, 2917.11).
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Scott B. Johnson
can exercise the constitutional right to bear arms, whether concealed or unconcealed, without
risking jail.”97
The Klein court has reaffirmed the fundamental nature of the right to bear arms;
the weapon just cannot be concealed. The solution then, one would suppose, is to be certain that
the weapon is visible, thus not concealed. But, one would have to be careful that, from the point
of view of anyone, the gun not be deemed to be “partially concealed.” In nearly every appellate
district in Ohio, “partially concealed” has been found to be “concealed” in the application of
section 2923.12.98
Must a person brandish the weapon in order to dispel any worry that it be
considered “partially concealed?” Wouldn’t this instill more fright and terror in the people than
a lawfully concealed weapon would? Moreover, one can imagine a myriad of situations whereby
someone could be openly carrying a handgun, presumably legally, and be arrested for inducing a
panic under the Revised Code. But such is the state of the law in Ohio. Forty-four states in the
Union issue concealed weapon permits.99
Clearly there is a less-intrusive way of satisfying the
state interest.
Rather than relying on dicta in century old cases and interpreting the meaning of silence,
the court could have gone directly to Ohio’s Constitution for further guidance, if section 4,
Article I was not clear enough. Section 1 of Article I buttresses the section 4 right to bear arms
for defense and security by providing that “[a]ll men are, by nature, free and independent, and
have certain inalienable rights, among which are those of enjoying and defending life and liberty,
97
Id.
See McKarty v. Duff’s Famous Smorgasbord, No. C-810894, 1982 Ohio App. LEXIS 13021 (1st Dist. 1982); State
v. Curry, No. 15705, 1996 Ohio App. LEXIS 4949 (2 nd Dist. 1996); State v. Lightfritz, No. 93 CA 3, 1993 Ohio
App. LEXIS 6019 (4th Dist. 1993); State v. George, No. CA-9255, 1993 Ohio App. LEXIS 4830 (5 th Dist. 1993);
State v. Roth, No. L-95-219, 1996 Ohio App. LEXIS 2160 (6 th Dist. 1996); State v. Almalik, 41 Ohio App. 3d 101,
534 N.E.2d 898 (Ohio 8th Dist 1987); State v. Timony, C.A. No. 18891, 1998 Ohio App. LEXIS 4759 (9 th Dist.
1998); State v. Graham, No. 97APA04-541, 1998 Ohio App. LEXIS 506 (10th Dist. 1998); State v. Potts, No. 97-T0038, 1998 Ohio App. LEXIS 4542 (11 th Dist. 1998); State v. Motley, CA 94-04-73, 1995 Ohio App. LEXIS 5577
(12th Dist. 1995).
98
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Scott B. Johnson
acquiring, possessing, and protecting property, and seeking and obtaining happiness and
safety.”100 Neighboring states, while interpreting their own constitutions, have struck down guncarrying bans as too restrictive on a citizen’s right to bear arms,101 or have affirmed the
fundamental nature of that right and the right to exercise it in defense of self or property.102
Every neighboring state has specific provisions in their constitutions affirming the right to bear
arms for reasons of security of self and property; this is not a foreign concept.103
The Ohio Supreme Court has done an amazingly risky thing. While it may appear to
those justices in the majority that it is politically correct to permit the legislature to limit what the
court itself calls a fundamental right, it is not constitutionally correct to do so. The court must
carefully consider the precedent it has set. If statutes regulating fundamental rights need only
pass rational basis scrutiny, there is no limit to the abuse that government can inflict on the
citizen or the rights that can be whittled away, chip by chip.
SCOTT B. JOHNSON
99
See Leo Shane III, FOP Backing Concealed-Carry Bill, Cincinnati Enquirer, Dec. 4, 2002, at 1C.
OHIO CONST. art I, § 1 (emphasis added).
101
See State ex rel. City of Princeton v. Buckner, 377 S.E.2d 139 (W. Va. 1988); Glasscock v. City of Chattanooga,
11. S.W.2d 678 (Tenn. 1928); People v. Zerillo, 189 N.W. 927 (Mich. 1922); Bliss v. Commonwealth, 12 Ky. 90
(1822).
102
Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996); See Kellogg v. City of Gary, 562 N.E.2d 685 (Ind. 1990).
103
See IND. CONST. art I § 20 (“That the people have the right to bear arms for the defense of themselves . . . .”); KY.
CONST. art. 10, P. 23 (“That the right of the citizens to bear arms in defense of themselves . . . shall not be
questioned.”); MICH. CONST. art. I, § 13 (“Every person has a right to keep and bear arms for the defense of himself
and the State.”); PA. CONST. art. XIII (“That the people have a right to bear arms for the defense of themselves and
the state shall not be questioned.”); W. VA. CONST. art. III § 22 (“A person has the right to keep and bear arms for
the defense of self, family, home and state . . . .”).
100
15