Bad news for Ohioans - with Good news update

[maestro pistolero]

Court of Appeals says local law enforcement can ban assault type weapons, despite a State pre-emption law.

http://www.ammoland.com/2009/11/13/c...sault-weapons/

Excerpts:

Ohio --(AmmoLand.com)- The 8th Ohio District Court of Appeals has overturned the trial court’s decision and ruled that Ohio Revised Code 9.68, which provided for statewide preemption of gun laws, to be unconstitutional as it pertains to rifles and shotguns and open carry. The 8th District court feels it applies only to concealed carry licensing laws.


. . .In this ruling, the 8th District found that R.C. 9.68 was unconstitutional partially on the grounds of the 1993 Ohio Supreme Court case Arnold v. Cleveland which upheld an assault weapons ban, a case decided thirteen years before R.C. 9.68 was passed preempting such laws.

O.R.C. 9.68 reads:

The individual right to keep and bear arms, being a fundamental individual right that predates the United States Constitution and Ohio Constitution, and being a constitutionally protected right in every part of Ohio, the general assembly finds the need to provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, or other transfer of firearms, their components, and their ammunition. Except as specifically provided by the United States Constitution, Ohio Constitution, state law, or federal law, a person, without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.

What is it with courts sometimes? How can they can turn reason and plain language on it's head to achieve a pre-determined result? I honestly don't know how they sleep at night.

[flippycat]

To try to reason the system you first have to realize it is managed by people and people are far from a solid. Just one more reason to hate Cleveland and their political power they seem to have in this state. Time to do some writing imo.

[armoredman]

That blows - will Ohio supremes hear it?

[Bartholomew Roberts]

Anybody have the decision? I'm interested in seeing how they arrived at the conclusion that this statute did not preempt local laws.

[JN01]

http://www.sconet.state.oh.us/rod/do...-ohio-5968.pdf

There you go. I haven't read it myself as legaleze often makes my brain hurt, but I have read others summaries.

Apparently, since a previous Ohio Supreme Court ruling upheld ORC 9.68 regarding the concealed carry reference and didn't mention any other aspect, the appellate court felt they could rule everything else in 9.68 unconstitutional.

[maestro pistolero]

Just like post-Heller courts are misreading "in the home" to be a limitation on the right instead of merely the scope of the case.

[Bartholomew Roberts]

Talk about a back-asswards ruling... the Appeals court basically concluded that because the State had not enacted "a comprehensive scheme to regulate assault weapons", the provision of the preemption statute prohibiting cities from passing their own regulations violated the Home Rule Amendment of the Ohio Constitution.

Note that this ruling basically casts the entire preemption statute (except as it relates to concealed carry) in question. As it stands now, cities are free to regulate any firearms that are not already part of a comprehensive scheme of statewide regulation.

I don't know whether to scoff at the backward ass logic that says that the State saying this subject cannot be regulated by muncipilaties is invalid because the State didn't regulate it in their place or scoff at the idea that firearms of any kind are not part of a "comprehensive scheme of regulation.

On the bright side, the appeals court basically thumbed their nose at earlier dicta from the Ohio Supreme Court on this subject as regards to concealed carry. This will hopefully set the stage for a well-deserved smackdown.

[johnwilliamson062]

Ugg, this is going to take a lot of unraveling. BFA hasn't even sent an announcement about it as far as I know.

[Al Norris]

So even if "The people have the right to bear arms for their defense and security" (§ 1.04), should the legislature not enact a legislative code that would define and regulate all aspects to the right, a "home rule" municipality (§ 18.03 and § 18.07) can restrict (read: regulate) the right at will, because it (the legislative enactment) would not be a "general law" that the municipality would have to follow?

Did I read that right?

I have never understood "Home Rule" States that (somehow) allow a subdivision of the State to abridge defined Constitutional rights of that State (see also Denver, CO as another fine example).

[zukiphile]

Did I read that right?

Yes. This is what you get when a court decides the result it prefers and then goes searching for a rationale.

I know the people involved and can see the courthouse from my window. Ohio's rules of conduct for attorneys prohibit certain sorts of statements about the judiciary, so I will not make any of those. Instead, I will note some problems with the opinion.

p.5 - The court notes that the General Assembly (GA) passed the new statute (9.68) in Dec. 2006 "BUT" Cleveland had already passed regulations. That "BUT" is nonsense, since laws like Cleveland are the object of 9.68. Similarly, that the supreme court had upheld the constitutionality of those laws in Arnold v. Cleveland in 1993 (essentially holding that ohioans have a state constitutional right to keep and bear for their defense, but that Cleveland is free to regulate that right into oblivion) prior to passage of 9.68 is patently irrelevent. The constitutionality of the Cleveland ordinances is not at issue. Whether they've been pre-empted is.

p.11 - The court suggests that 9,68 is not in conflict with Cleveland's ordinances, even though the GA admittedly signalled its intent to "occupy the field of handgun possession in Ohio."

You can't have a properly reasoned where the facts are ignored in favor of more favorable fictions.

p.12 - This features the political core of the decision. Essentially, the court holds, the only way for the state to pre-empt this area is to "regulate" in aching detail. Just finding that this is an area of liberty in which no licensing may be required within the state doesn't meet the test of "regulation" the court would like to see.

p.14 - The court employs th Canton test to determine whther 9,68 is a general law. The Canton test requires that the enamctment be 1) statewide and comprehensive, 2) operate uniformly throughout the state and 3) establish police regulations rather than limit legislative power.

The stupidity of the test is patent. Every section of state code that pre-empts local code effectively limits the power of local legislatures.

p.18 - Finally, the court finds that 9,68 abuses legislative power and the separation of powers by assuming a judicial function in mandating attorney's fees and inviting unwarranted litigation.

However, whether litigation is unwarranted is something a court should not pre-determine before it hears a case.

Further, Ohio code has lots of sections that require a court to award attorney's fees to the prevailing party. Finding that 9,68 violates separation of powers for having an attorney's fee provision is knee slappingly funny.

[maestro pistolero]

Won't this just go to the the OSC for a slap down?

[zukiphile]

Won't this just go to the the OSC for a slap down?

I don't know.

In Ohio, the urban/rural split is as important on some issues as the republican/democrat split. The eighth district Court of Appeals is THE urban district with the kind of constituent driven democrat party many of you would imagine in NY or Chicago. Just across from the court house earlier in the year was a federal raid of some county offical for corruption at the very top of county government.

The governor and AG are also democrats, but since these are statewide offices, they are more the rural sort, and don't strike me as unalterably hostile to gun ownership. I would go so far as to say that the democrat predecessor to Richard Cordray, Mark Dann, was probably more frank a defender of these rights than the last batch of statewide republicans were. Sadly, Dann's tenure was cut short by his affection for girls and alcohol.

I don't know how motivated the state dems are to challenge the cuyahoga county dems over this.

Also, our supreme court has a long history of overturning the GA's efforts on a number of issues. Some points of law change every two or three years if they are a battleground between the legislature (generally controlled by repblicans) and the court (generally controlled by democrats).

Apologies for the long answers. I don't know how obvious some of this is if you do not live here.

For anyone who is interested, the trial court decision:

THIS CAUSE CAME FOR CONSIDERATION BEFORE THE COURT ON CROSS MOTIONS FOR SUMMARY JUDGMENT BY PLAINTIFF CITY OF CLEVELAND AND DEFENDANT STATE OF OHIO, FILED JULY 16, 2007 REGARDING PLAINTIFF'S COMPLAINT FOR DECLARATORY JUDGMENT SEEKING TO HAVE OHIO REVISED CODE SECTION 9.68 DECLARED UNCONSTITUTIONAL. FOLLOWING BRIEFING ON THIS MATTER, THE COURT RECEIVED NOTICE FROM THE PARTIES REGARDING RELATED PROCEEDINGS PENDING WITH THE SUPREME COURT OF OHIO ON THIS ISSUE, THUS THE COURT HELD ITS RULING PENDING THE SUPREME COURT'S DECISION IN OHIOANS FOR CONCEALED CARRY, INC., ET AL. V. CITY OF CLYDE, ET AL. (2008) 120 OHIO ST.3D 96. THE SUPREME COURT HAVING NOW ISSUED ITS OPINION, THIS COURT HEREBY RENDERS JUDGMENT IN THIS MATTER. THE COURT HEREBY ORDERS PURSUANT TO OHIOANS FOR CONCEALED CARRY, INC., ET AL. V. CITY OF CLYDE, ET AL. (2008) 120 OHIO ST.3D 96, THAT R.C. 9.68 IS CONSTITUTIONAL AND DOES NOT VIOLATE THE HOME RULE AMENDMENT OF THE OHIO CONSTITUTION. THE COURT FINDS THAT R.C. 9.68 IS A GENERAL LAW THAT IS PART OF A COMPREHENSIVE STATEWIDE LEGISLATIVE ENACTMENT BASED ON THE SUPREME COURT'S DECISION IN OHIOANS FOR CONCEALED CARRY. THE SUPREME COURT HAS RECENTLY EXAMINED R.C. 9.68 AND A RELATED CONCEALED CARRY STATUTE AND FOUND THAT R.C. 9.68 IS PART OF A STATEWIDE COMPREHENSIVE LEGISLATIVE ENACTMENT. SPECIFICALLY, THE COURT FOUND THAT "THE GENERAL ASSEMBLY REITERATED THE NEED FOR UNIFORMITY IN R.C. 9.68(A), WHICH REPRESENTS AN ATTEMPT BY THAT BODY TO NULLIFY ALL MUNICIPAL LAWS IMPEDING UNIFORM APPLICATION OF THE STATE STATUTE. . . .THE GENERAL ASSEMBLY COULD NOT HAVE BEEN MORE DIRECT IN EXPRESSING ITS INTENT FOR STATEWIDE COMPREHENSIVE HANDGUN-POSSESSION LAWS." OHIOANS FOR CONCEALED CARRY, 120 OHIO ST.3D AT 103. AS A GENERAL LAW THE STATUTE DOES NOT VIOLATE THE HOME RULE AMENDMENT. THE COURT FURTHER FINDS THAT R.C. 9.68 DOES NOT VIOLATE THE SINGLE-SUBJECT RULE AND THAT THE GENERAL ASSEMBLY DID NOT ABUSE ITS LEGISLATIVE POWER IN ENACTING THE STATUTE. THEREFORE, THE COURT, HAVING CONSIDERED ALL THE EVIDENCE AND HAVING CONSTRUED THE EVIDENCE MOST STRONGLY IN FAVOR OF THE NON-MOVING PARTY, FINDS THAT THERE ARE NO GENUINE ISSUES OF MATERIAL FACT AND THAT DEFENDANT STATE OF OHIO IS ENTITLED TO JUDGMENT AS A MATTER OF LAW. PLAINTIFF CITY OF CLEVELAND'S MOTION FOR SUMMARY JUDGMENT IS DENIED AND DEFENDANT STATE OF OHIO'S MOTION FOR SUMMARY JUDGMENT IS GRANTED. FINAL. COURT COST ASSESSED TO THE PLAINTIFF(S). CLTMP 12/31/2008 NOTICE ISSUED

[maestro pistolero]

Quote:
Won't this just go to the the OSC for a slap down?
I don't know.

Absent a case being brought, the OSC could take no action, I assume? (IANAL).
Is there a chance the OSC would render a summary judgment rather than engage a draw-out process that would yield an obvious result?

And what if a gun rights organization brought a case, whether the NRA or something more local?

This seems like a whole lot of ground to give, especially considering that it is based on weak, vulnerable legal reasoning.

[zukiphile]

Absent a case being brought, the OSC could take no action, I assume?

Like any other court, it only decides cases and controversies that come before it.

Is there a chance the OSC would render a summary judgment rather than engage a draw-out process that would yield an obvious result?

The SC would only be reviewing the case for conflict and legal error; they don't hold trials.

And what if a gun rights organization brought a case, whether the NRA or something more local?

If the statute is already invalidated, it would be too late.

This seems like a whole lot of ground to give, especially considering that it is based on weak, vulnerable legal reasoning.

In order for the quality of the legal reasoning to matter, legal reasoning has to be the basis of the decision in the first place. If the conclusion is political, reasoning against the preferred conclusion only gets you so far.

[maestro pistolero]

Suppose a person with large set of. . . intestinal fortitude(s) . . . were to rely on the state pre-emption law and have an otherwise legally possessed and transported so-called assault weapon in the city limits. Aggravation, expense, and hassle notwithstanding, how exposed would they be, and would they have standing to challenge this under pre-emption?

[JN01]

Ohio AG has filed for a stay pending appeal to the Ohio SC.
http://www.buckeyefirearms.org/publi...StayMotion.pdf

AG seems to think that a stay should be a slam dunk. Hope he's right.

[maestro pistolero]

There we go. Sounds like there is a chance this will right itself pretty quickly. If so, wouldn't it further establish precedent making this nonsense more difficult in the future?

[JN01]

I guess "pretty quickly" is a relative term. Ohio SC has just agreed to hear the case.

Ohio Supreme Court to hear case involving Cleveland gun law
By Reginald Fields, The Plain Dealer
March 10, 2010, 11:51AM
COLUMBUS, Ohio -- The Ohio Supreme Court has agreed to hear a case challenging the city of Cleveland's tough handgun regulations.

A lower court has sided with the legislature but a state appeals court overturned the lower court and handed Cleveland a victory. Now, the state's highest court will weigh in.

In 2007, Ohio's gun laws were revised to stipulate that permit holders could openly carry firearms in Ohio. House Bill 347 was intended to create a uniform gun law across the state and end the hodgepodge of rules from city to city, county to county.

"The legislature also determined that it needed to provide uniform laws throughout the state governing firearms possession," the attorney general's office wrote on behalf of the legislature in a brief asking the court to review the case. "It therefore restricted the ability of political subdivisions to enact local firearms ordinances."

But Cleveland, exercising its home-rule authority, established tougher regulations anyway than what the state stipulated, basically outlawing open carry within city limits. The city contends the legislature has no authority to pass a law that trumps a city's constitutionally protected home rule rights, which allows it to pass laws specific to its municipality.

"The power of home rule 'expressly conferred upon municipalities' cannot be withdrawn by the General Assembly," city attorneys wrote in response to the state's brief. "Local authority to legislate is grounded in the constitution, not the general assembly."

The Supreme Court is expected to hold oral arguments on this case later this year.

[Al Norris]

Ooh! This is gonna get interesting!

I wonder if the Ohio Supremes will wait for the McDonald decision to see where they really stand?

[armoredman]

Will they claim thier home rule nullifies the US Constitution,as well? I say agree with them, and kick them out of the Union, city and contents. The City State of Cleveland can go it's own way without US government help...

[Standing Wolf]

What is it with courts sometimes? How can they can turn reason and plain language on it's head to achieve a pre-determined result? I honestly don't know how they sleep at night.

The same way Lenin slept at night: by sincerely believing their personal likes and dislikes are all that matter.

[johnwilliamson062]

I hereby offer Cleveland to Pennsylvania for annexation.

We have a pretty good group of Democrats here in Ohio at the state level and many local levels. Very much common sense people. This won't last forever, but it will take some time. I wouldn't be surprised if it is a couple of years.

Cleveland is such a cesspool though(on all accounts).

[JN01]

Update- Ohio Supreme Court will hear oral arguments in City of Cleveland vs State of Ohio on Tuesday, October 12.

[maestro pistolero]

Update- Ohio Supreme Court will hear oral arguments in City of Cleveland vs State of Ohio on Tuesday, October 12.

Great news. Thanks for the update. Let's hope that the newly established fundamental-right-status leads them to drink deeply from the waters of strict scrutiny.

[Bartholomew Roberts]

I don't think they will reach scrutiny level of the ban since it appears to be a question of interpretation of the state preemption law.