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Ohio's "Concealed Carry" Law Held Constitutional

2002-0585. Klein v. Leis, 2003-Ohio-4779.
Hamilton App. Nos. C-020012, C-020013, C-020015 and C-020021, 146 Ohio App.3d 526, 2002-Ohio-1634, 767 N.E.2d 286. Judgment reversed and cause remanded.
Moyer, C.J., Resnick, F.E. Sweeney, Pfeifer and Knepper, JJ., concur.
Lundberg Stratton and O'Connor, JJ., dissent.
Richard W. Knepper, J., of the Sixth Appellate District, sitting for Cook, J.
Opinion: http://www.supremecourt.ohio.gov/rod/newpdf/0/2003/2003-Ohio-4779.pdf

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(Sept. 24, 2003) The Supreme Court of Ohio today held that Ohio's current state law that prohibits carrying concealed weapons does not infringe the "right to bear arms for … defense and security" guaranteed in the state constitution.

The 5-2 decision, written by Justice Paul E. Pfeifer, was joined by Chief Justice Thomas Moyer, Justices Alice Robie Resnick and Francis E. Sweeney and 6th District Court of Appeals Judge Richard W. Knepper, sitting for former Justice Deborah Cook. Justices Maureen O'Connor and Evelyn Lundberg Stratton dissented.

Today's decision reversed earlier rulings by the Hamilton County Common Pleas Court and 1st District Court of Appeals that held the concealed carry law unconstitutional and prohibited police from enforcing it in Hamilton County. Those rulings have been under stay pending their review by the Supreme Court.

The case arose when a group of individuals and organizations in Cincinnati, including Chuck Klein and Patrick Feely, petitioned the local courts to declare the state concealed carry law unconstitutional. The law broadly prohibits carrying concealed weapons, but allows persons arrested and charged for carrying a concealed weapon to win acquittal by proving one of several "affirmative defenses." Among those defenses are having "reasonable cause to fear a criminal attack" while engaged in lawful activity and working in a lawful business or occupation in which the defendant is "particularly susceptible to criminal attack."

The lower courts agreed with arguments by Klein, Feely and their co-plaintiffs that the statutory language defining the affirmative defenses was so vague and police enforcement of the statute so undiscriminating that it was practically impossible for citizens to exercise their right to bear arms without being subject to arrest, invasive searches, jail and the risks and expenses of a criminal trial in order to prove that they had been acting lawfully all along.

Writing for the Supreme Court, Justice Pfeifer affirmed the historic right of Ohioans to bear arms but added that "however fundamental and entrenched in the constitutional heritage of our state, the right to bear arms is not absolute."

He noted that state legislators adopted Ohio's original statute that prohibited carrying concealed weapons in 1859 — only eight years after the state's second constitution, including a reaffirmed "right to bear arms," was ratified. Justice Pfeifer also pointed out that the proceedings of two subsequent constitutional conventions, in 1873 to 1874 and 1912, reflect no debate about perceived conflicts between the constitutional right to bear arms and a statutory prohibition against concealed carry.

In a 1920 decision (State v. Nieto), Pfeifer wrote, the Supreme Court reviewed and upheld the constitutionality of the contemporary concealed weapons law, finding it to be a "proper exercise of the police power of the state," and holding that "(t)he statute does not operate as a prohibition against carrying weapons, but as a regulation of the manner of carrying them."

Thus, the majority observed, Klein and the other plaintiffs "ask us to declare unconstitutional a statute that has been part of our legal heritage since 1859, that has been amended by our General Assembly time and again without fundamental modification, that did not arouse the concern of two different constitutional conventions and that has been held by this court to be constitutional."

With regard to the specific constitutional challenges asserted by Klein and his co-plaintiffs, the court held that the concealed carry statute is a "reasonable regulation," and that the affirmative defenses set forth in the statute are not unconstitutionally vague because they are "capable of being understood by a person of common intelligence and provide sufficient standards to prevent arbitrary and discriminatory enforcement."

"The General Assembly has determined that prohibiting the carrying of concealed weapons helps maintain an orderly and safe society," wrote Justice Pfeifer. "We conclude that that goal and the means used to attain it are reasonable. We hold that (the statute) does not unconstitutionally infringe the right to bear arms; there is no constitutional right to bear concealed weapons."

The Klein lawsuit also challenged the constitutionality of two other sections of the Ohio Revised Code that set state licensing and training requirements for private investigators and security guards who wish to carry firearms. Because the lower courts ruled that the underlying concealed carry law was unconstitutional, they did not reach these issues. In today's decision, the Supreme Court remanded the issue of constitutionality of the firearms training and licensing statutes to the 1st District Court of Appeals for review consistent with today's holding.

Justice O'Connor entered a dissenting opinion that was joined by Justice Stratton. In it she asserted that, because the concealed carry law regulates the manner in which Ohioans may exercise a fundamental right, the statute should be held constitutional only if it is "narrowly tailored to serve a compelling government interest and leaves open other means of exercising the right." That is not the case, she contended, because the current concealed carry statute allows police to arrest anyone they find carrying a concealed weapon, while the only means it offers those who seek to exercise their right to bear arms in a concealed manner is to go to trial and prove one of the affirmative defenses.

"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," wrote Justice O'Connor.

She concluded that the statute "would be constitutional only if the state bore the burden of proving that the defendant's actions fell outside those protected as fundamental rights. The statute as written does not permit this. It would require a rewriting of the statute, which is activity solely within the ambit of the legislature."

William M. Gustavson, 513.621.4477, for Chuck Klein et al.

Richard Ganulin, 513.352.3329, for the city of Cincinnati.

John J. Arnold, 513.946.3044, for Hamilton County and Sheriff Leis.

Douglas Cole, 614.466.1853, for the state of Ohio.