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Old September 27, 2010, 01:45 AM   #1
Aguila Blanca
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Ohio Precedent?

I need to try again to tweak my state legislators about lawful carry in my state. Back a few years, when Ohio was still fighting to get a concealed carry law enacted, there was some discussion about a precedent-setting case before the Ohio Supreme Court a few (?) years prior in which the Ohio Supreme Court ruled that open carry was legal without a permit because concealed carry was prohibited by statute, and the Ohio state constitution guaranteed a right to keep and bear arms. Ergo, if you have a right to bear arms and you can't bear them concealed, then the only option left is open carry.

My state's constitution also guarantees a RKBA, but the legislature doesn't appear to understand that. I'd like to be able to cite the Ohio case as an example -- if I could find it.

Can anyone help?
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Old September 27, 2010, 02:51 AM   #2
therealdeal
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Ohio

Summary
Ohio is a traditional open carry state. Recently, the Ohio legislature passed HB-12 over Governor Taft's veto, thus preempting all local open carry bans even in Ohio's "home rule" localities. Unfortunately, despite passage of HB-12, a permit to conceal is still required to openly carry a handgun in a vehicle.


and visit http://www.opencarry.org/oh.html (I hope this helped)
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Old September 27, 2010, 07:40 AM   #3
Al Norris
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It's not an Ohio case, so I don't know if it will help any, but Idaho has just such a case: Cite as In re Brickey, 8 Idaho 597 (1902)
Quote:
(November 15, 1902.)

IN RE BRICKEY.

CONSTITUTIONAL LAW-BEARING ARMS, VOID STATUTE.-The act of the territorial legislature, approved February 4, 1889, which prohibits private persons from carrying deadly weapons within the limits or confines of any city, town, or village in Idaho, contravenes the provisions of the second amendment to the federal constitution and the provisions of section 11, article 1, of the constitution of Idaho, and is void.

POLICE REGULATIONS-FIREARMS-CARRYING CONCEALED WEAPONS.- While it is, undoubtedly, within the power of the legislature to prohibit the carrying of concealed deadly weapons, and such regulation is a proper exercise of police power, yet the legislature does not possess the power to prohibit the carrying of firearms, as the right to do so is guaranteed to the citizen both by our federal and state constitutions.
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Old September 27, 2010, 08:33 AM   #4
zukiphile
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Quote:
Back a few years, when Ohio was still fighting to get a concealed carry law enacted, there was some discussion about a precedent-setting case before the Ohio Supreme Court a few (?) years prior in which the Ohio Supreme Court ruled that open carry was legal without a permit because concealed carry was prohibited by statute, and the Ohio state constitution guaranteed a right to keep and bear arms.
Sounds as if you are remembering Klein v. Leis.

In Ohio, only concealed carry required a permit according to statute. Klein called his local PD to let them know he was going to carry openly, as was his right. The PD let Klein know that they would arrest him for inciting panick.

Klein argued that if he isn't allowed to carry conclealed or open, he isn't allowed to carry, which violates a right in the OH constitution about the right of self defense. IIRC, Klein lost. In Ohio, that isn't always a reflection of the merits.
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Old September 27, 2010, 09:01 AM   #5
Aguila Blanca
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Quote:
Originally Posted by therealdeal
Ohio

Summary
Ohio is a traditional open carry state. Recently, the Ohio legislature passed HB-12 over Governor Taft's veto, thus preempting all local open carry bans even in Ohio's "home rule" localities. Unfortunately, despite passage of HB-12, a permit to conceal is still required to openly carry a handgun in a vehicle.


and visit http://www.opencarry.org/oh.html (I hope this helped)
Thank you, but that does not help at all. The case that directly led to Ohio adopting a concealed carry law was a case that went to the Ohio Supreme Court in which they specifically ruled that, because the state constitution guarantees a RKBA and because the legislature had prohibited concealed carry, open carry MUST be allowed under the (state) constitution.

I need the citation for that case to forward to my state legislature critters. What Ohio's constitution says doesn't help, nor does Ohio's (relatively) new concealed carry law help. [EDIT]I found Klein v. Leis. Looks like that is the case. Thanks.

If anyone knows of other states with high court rulings saying the same thing, please add cites to those, as well. The Idaho cite is a perfect example. Thank you for that.

Last edited by Aguila Blanca; September 27, 2010 at 09:07 AM.
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Old September 27, 2010, 10:01 AM   #6
zukiphile
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Quote:
The case that directly led to Ohio adopting a concealed carry law was a case that went to the Ohio Supreme Court in which they specifically ruled that, because the state constitution guarantees a RKBA and because the legislature had prohibited concealed carry, open carry MUST be allowed under the (state) constitution.
That isn't really how it unfolded. Klein didn't change much. Open carry still has lots of the same problems in Ohio that it does in other states.

What changed the landscape in Ohio was the political popularity of concealed carry, and a governor who promised to sign a CCW bill "if it crosses my desk" killing it several times, then being muscled into submission by the General assembly and his own party.

Klein was not a Heller-like moment.
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Old September 28, 2010, 05:16 PM   #7
Aguila Blanca
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Quote:
Originally Posted by zukiphile
Quote:
The case that directly led to Ohio adopting a concealed carry law was a case that went to the Ohio Supreme Court in which they specifically ruled that, because the state constitution guarantees a RKBA and because the legislature had prohibited concealed carry, open carry MUST be allowed under the (state) constitution.
That isn't really how it unfolded. Klein didn't change much. Open carry still has lots of the same problems in Ohio that it does in other states.

What changed the landscape in Ohio was the political popularity of concealed carry, and a governor who promised to sign a CCW bill "if it crosses my desk" killing it several times, then being muscled into submission by the General assembly and his own party.

Klein was not a Heller-like moment.
Not to put too fine a point on it, but that is exactly how it unfolded. It took a few years, but Ohio's concealed carry law was the result of a succession of open carry rallies that were staged specifically with the intention of making the lawmakers sufficiently nervous about seeing a lot of folks with guns out in public, leading them to pass a law that allowed concealing said guns.

Those open carry demonstrations would not have been possible prior to the Klein v. Leis decision, because prior to that the police in Ohio operated on the theory that open carry was illegal, and they arrested people for it.

For Ohioans, Klein was indeed a watershed event/case, because it clearly established the (state) constitutional RIGHT to bear arms was a fundamental right, and a right that while subject to regulation could not be completely banned by legislative fiat.
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Old September 28, 2010, 08:24 PM   #8
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The Klein case can be found here: http://www.sconet.state.oh.us/rod/do...-ohio-4779.pdf

I just gave it a quick read. I believe the OP misunderstands the holding just a bit. Essentially, the claim was made that restrictions on the right to carry concealed violated the state constitution. The Ohio Supreme Court said the "the right to bear arms is fundamental" but not absolute. It noted some longstanding common law and cases placing limitations on open carry. It quoted a case from 1900 saying, "Going armed with unusual and dangerous weapons to the terror of the people is an offense at common law."

It then noted the concealed carry statutes had been on the books through two constitutional conventions without any question being raised about them. The Ohio Supreme Court ultimately held that the two statutes on concealed carry were not unconstitutional but this conclusion was based on the rationale that the right to bear arms was subject to limitation.

This is a much different rationale than that stated by the OP.
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Old September 28, 2010, 09:29 PM   #9
Aguila Blanca
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Quote:
Originally Posted by KyJim
It then noted the concealed carry statutes had been on the books through two constitutional conventions without any question being raised about them. The Ohio Supreme Court ultimately held that the two statutes on concealed carry were not unconstitutional but this conclusion was based on the rationale that the right to bear arms was subject to limitation.

This is a much different rationale than that stated by the OP.
No, it is NOT much different, for the reason explained in the dissenting opinion. The decision did clearly hold that under the Ohio state constitution the RKBA is a "fundamental" right. The decision said a fundamental right may be regulated, but not prohibited. What you are overlooking is that the case was brought by someone who had been busted for carrying concealed, which Ohio law prohibited. And the justices ruled that a prohibition against concealed carry could stand as long as open carry was allowed.

And it was specifically this decision that set the stage for the series of open-carry-ins that led to the enactment of the Ohio concealed carry law. If Klein had not made it clear that open carry was legal because without open carry the law would not leave any way for the People to exercise their RKBA, the carry-ins could not have taken place.

Last edited by Aguila Blanca; September 28, 2010 at 09:31 PM. Reason: Typos... and more typos
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Old September 29, 2010, 07:06 PM   #10
KyJim
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Quote:
the Ohio Supreme Court ruled that open carry was legal without a permit because concealed carry was prohibited by statute, and the Ohio state constitution guaranteed a right to keep and bear arms. Ergo, if you have a right to bear arms and you can't bear them concealed, then the only option left is open carry.
The premise you attributed to the court is wrong. They did not rule open carry was legal because concealed carry was prohibited. It's just not in the opinion.

Quote:
the justices ruled that a prohibition against concealed carry could stand as long as open carry was allowed.
No, that's the same faulty premise you are attributing to the court. The prohibition against concealed carry was not dependent on open carrying be allowed. They simply said the right to bear arms was fundamental but subject to regulation, including regulation of concealed carry.

Quote:
And it was specifically this decision that set the stage for the series of open-carry-ins that led to the enactment of the Ohio concealed carry law. If Klein had not made it clear that open carry was legal because without open carry the law would not leave any way for the People to exercise their RKBA, the carry-ins could not have taken place.
That may very well be the case. I'm not disputing it because I don't know.

At any rate, good luck on your efforts to get concealed carry in your state.
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Old September 30, 2010, 08:34 AM   #11
zukiphile
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Quote:
Originally Posted by KyJim
I believe the OP misunderstands the holding just a bit.
Indeed.

Quote:
Originally Posted by Aquila Blanca
Not to put too fine a point on it, but that is exactly how it unfolded.
You are mistaken about the legal process involved. I don't doubt your impression that public rallies illustrated public frustration with Taft's foot-dragging, but you should understand a few things about Ohio law and Klein before using it as a basis for your advocacy before other legislatures.

First, Klein lost the case. This contrasts with Heller in that Heller won. The code Klein challenged was not struck down by his challenge before the Oh Sup Ct.

Second, open carry was already legal in Ohio, just as it is in many other states. However, in many of those states open carry is problemmatic, not because open carry is illegal, but because, as in Klein's case, the charge brought would be inciting panic or brandishing. That a PO dislikes something and makes an arrest does not mean it is illegal. Under the stautory scheme Klein challenged, after arrest a person could allege an affirmative defense that he was carrying legally. The Sup Ct in Klein permitted that to stand.

Third, this was a declaratory judgment. Klein was not arrested for carrying. Klein brought the action on the theory that asking him to risk arrest in the face of vague and irregularly applied affirmative defenses was not a reasonable way to test the law, and asked the court to entertain the challenge without having him first risk arrest.

I applaud the motivation involved in pushing legislators to liberalise state regulations, but it would be better and more persuasive not to use the case than to misstate it.

Last edited by zukiphile; September 30, 2010 at 08:58 AM.
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