by Joseph P. Tartaro
Court of Common Pleas Judge Robert Ruehlman on July 18 issued an temporary restraining order blocking enforcement of Ohios law against concealed firearms carry by the chief of police in Cincinnati and the sheriff of Hamilton County.
The order, which does not affect other Ohio counties in its present form, prohibits enforcement of RC-2923.12, the law on the carrying of concealed firearms, and RC-2923.16, the law prohibiting transportation of a loaded firearm in a motor vehicle.
Ruehlmans order means that it is okay to carry a concealed firearm in Cincinnati and surrounding Hamilton County during the pendency of a suit seeking a permanent injunction.
The suit seeking to overturn the prohibition on concealed carry in Ohio, which has no statewide right-to-carry law or licensing system, was filed on July 17 by the Second Amendment Foundation (SAF) and four individual residents of Hamilton County. The plaintiffs are Chuck Klein, James H. Cohen, Vernon Ferrier and Lee Anne Driscoll.
The lawsuit argues that the law is unconstitutional because it does not distinguish between criminals and people who carry guns for their own protection.
Were trying to get the attention of the state legislature, said Klein, a Cincinnati private investigator.
If they dont want us to carry guns, theyve got to change the Constitution to stop us.
His attorneys, Tim Smith and William Gustavson, asked the judge to issue a temporary order promptly which would allow Klein and the others to carry guns on the job.
They say their clients need the guns because they are physically unable to defend themselves or because they keep large amounts of cash with them.
The lawyers also have asked for a trial date so they can argue for throwing out the concealed firearms law altogether, and it appears the case will be heard sometime in August.
The plaintiffs argue that the law is unfair because it conflicts with the Ohio and US Constitutions.
On one hand, they say, Ohios Constitution allows carrying a gun to protect life and property. On the other, state law bars people from carrying a concealed weapon under any circumstances.
Klein told The Cincinnati Enquirer that the only way a person can find out if he is breaking the law is to get arrested, go to court, pay attorney and court costs, and hope a judge finds in his or her favor.
The same argument came up in May when a pizza deliveryman in Cincinnati, Patrick Feely, won the right to carry a gun for protection.
The lawsuit names Hamilton County Sheriff Simon L. Leis and Cincinnati Police Chief Thomas Streicher as defendants because they are responsible for enforcing the law.
City attorneys say they will argue that the state law is a proper way to protect police and citizens. There is no fundamental constitutional right to carry a concealed weapon, said Richard Ganulin, an assistant city solicitor.
Ruehlman already has ruled on one major case involving gun control. Last year, he threw out the city of Cincinnatis lawsuit against gun manufacturers. In that case, the judge said the misuse of firearms is beyond the control of gunmakers.
It is blatantly unfair to have a law where nobody knows whether he or she is complying with the law, or in violation of the law, stated Alan Gottlieb, SAF founder. There are no standards, guidelines or common sense under the current statute."
The legal action specifically seeks to prevent enforcement of the two sections of Ohio law until a court reviews whether they are constitutional. The complaint calls the current scheme a violation of the US Constitutions Second Amendment [keep and bear arms], Ninth Amendment [self-defense], and Fourteenth Amendment [Equal Protection, Incorporation of Bill of Rights to the States] as well as the Ohio Constitution, which reads:
Article 1, Section 1: All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.
Article 1, Section 4: The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.
The Ohio law in question, R.C. 2923.12, bans all concealed carry of firearms with felony penalties for any violations. It is only after a person caught carrying a concealed firearm has incurred the costs and stresses of a criminal trial that the current law allows the possibility of an affirmative defense to be made.
In the Feely case, both the prosecutor and the judge stated that the law should be changed or repealed. Feely is a pizza delivery person who is known to carry large sums of cash in bad neighborhoods as part of his employment. He was acquitted at his first trial, but could face the same charges if found carrying a concealed firearm again. The threat and costs of repeated prosecutions is another reason for declaring the current law unconstitutional.
Even after a defendant wins his or her case based on affirmative defense, showing need for carrying a firearm concealed, this does not prohibit dragging the same person into a courtroom again for the very same charge, warned Smith, an attorney for Feely in the first case and lead counsel for the pending injunction case.
Such unfairness motivated Mr. Feelys employer, James H. Cohen, to step forward as one of the plaintiffs seeking relief from courts against the current law, Smith said.
The outcome of the case raises many questions which may have to be addressed by the state legislature and the governor.
The judge (Ruehlman) made it clear that the current law treats people as guilty until proven innocent, said Gustavson. If this order is upheld, the burden of proof would switch to the government to show why the person should not be allowed to carry a firearm for self-defense.
For years, Gov. Bob Taft (and his predecessors) and the anti-self-defense crowd have blocked reasonable standards for issue concealed carry licenses, noted Dave LaCourse, SAF public affairs director. Now they have their wish, and Hamilton County allows law-abiding people to carry firearms without a license. Such unfairness opened the door for throwing out the unconstitutional law.
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