In a stunning and 3-0 ruling, a three-judge panel of Ohio’s 1st District Court of Appeals struck down as unconstitutional the state’s nearly century-old statutes that banned concealed handgun carry.
The April 10 decision, though it technically applies only in Ohio’s Hamilton County, including the city of Cincinnati, will have an impact across the Buckeye State, said Dave LaCourse, public affairs director for the Second Amendment Foundation (SAF), a plaintiff in the lawsuit that led to the ruling.
“This ruling is a total vindication of our position,” said the jubilant LaCourse, who was sitting in the courtroom when the decision was read. He said the Ohio saga “creates a blueprint for potential lawsuits in other states.” Those states could include Wisconsin, Missouri, California, Kansas, Illinois and Nebraska.
Attorneys for the state of Ohio, Cincinnati and Hamilton County—aided by lawyers for the Brady Campaign to Prevent Gun Violence (formerly Handgun Control Inc.) quickly filed motions of appeal with the Ohio Supreme Court and asked for a to stay of the Appellate Court’s decision.
SAF had joined five local residents—Pat Feeley, James Cohen, Vernon Ferrier, Leanne Driscoll and private investigator Chuck Klein—along with Ohioans for Concealed Carry and the People’s Rights Organization in a lawsuit against law enforcement agencies, Hamilton County and the State of Ohio to overturn the ban. Under the statute, citizens could theoretically carry concealed firearms for their personal protection, but were still subject to arrest, indictment and trial on a felony charge. They would still have to defend themselves in court, providing a so-called prudent person “affirmative defense” as to their need to carry a gun, to beat the charge.
In his often blistering, and sometimes eloquent ruling, Presiding Judge Mark P. Painter noted, “Guns or no guns, we know of no other situation where a citizen is guilty until proven innocent.” He was joined by Judges Rupert Doan and Lee Hildebrandt Jr.
Painter’s 18-page ruling also noted, “There is no doubt that the Ohio Constitution grants citizens the right to possess, and to bear, arms. That is exactly what it says.”
The Appeals panel’s decision also fired a shot across the bow of gun control proponents who have argued that the state law properly limited concealed carry only to law enforcement officers.
Wrote Painter: “We are not a country where power is maintained by people with guns over people without guns.”
Painter’s decision was devastating not only in its conclusion, but in its details. The Appeals panel held that the law “is not fair, proper, moderate, or suitable under the circumstances, and that it is indeed excessive. It acts to deprive law-abiding citizens of the right to bear any arms and, in so doing, thwarts a fundamental right that was granted by our forebears and the drafters of our Ohio Constitution.”
The court later noted that “the affirmative defenses are unconstitutionally vague. They may not be understood by a citizen of reasonable intelligence, and they are susceptible to arbitrary enforcement.”
Further, the Appeals panel took striking exception to the city of Cincinnati’s attempt to portray Hamilton County Judge Robert Ruehlman—who first ruled against the two concealed carry laws on Jan. 10 and sought to block their enforcement—as biased because his wife and infant daughter had been abducted at gunpoint some years ago. The court noted that, “. . . the city’s attack on the trial judge in this case is offensive.”
“Declaring an unconstitutional statute unconstitutional is not judicial bias,” said Painter’s decision, “it is judicial duty,” adding almost immediately, “If Judge Ruehlman had ruled the other way, we would have reversed him.”
Yet another blow to the appellants in this case, and the gun control movement in a broader sense, came when Painter’s decision focused briefly on the trial testimony of Prof. Franklin E. Zimring from the University of California at Berkeley. Ruehlman had, in his initial ruling, suggested that Zimring’s testimony “should be stricken from the record.”
Zimring had testified at trial that Ohio’s statute was a reasonable attempt to fight crime and protect police. The Appeals Court panel noted, “Simply because a law professor believes a statute is reasonable does not make it so.”
LaCourse told Gun Week that the ruling also sends a message to the Ohio legislature, which has been battling over concealed carry legislation for many months. Some critics have suggested that lawmakers were stalling to see how the court ruled on the Hamilton County case. Even the Appeals Court alluded to the legislature’s procrastination, noting, “. . . the General Assembly has been on notice of the problems with this statute for more than a year. We will not continue to allow the enforcement of an unconstitutional statute.”
Noted LaCourse: “The ruling puts pressure on the legislature to resolve this issue. Lawmakers have known for a long time there was a problem with the law, but it took a legal challenge by gun owners to put this issue in focus.”
That was also the analysis from Harry Thomas, a retired Cincinnati police lieutenant and member of the National Rifle Association’s board of directors.
“Our concealed carry bill has passed the House and is before the Senate,” Thomas said, “and (this decision) certainly gives Gov. Bob Taft an impetus to sign what gets in front of him.”
Thomas predicted that until the Ohio Supreme Court issues a ruling, there will still be checkerboard enforcement of the statutes, as some courts continue handing out concealed carry convictions, others accept affirmative defenses and still others withhold decisions in CCW cases.
“Everybody is on hold until then,” he said.
Joe Waldron, executive director of the Citizens Committee for the Right to Keep and Bear Arms, was pleased with the Ohio ruling, stressing that the state constitutional guarantee is “pretty clear.”
“There is no ambiguity there at all,” he said.
He lauded the style in which Painter wrote the court’s opinion, noting that it was clear and easily understood.
Waldron told Gun Week that the concealed carry “movement” is gathering strength across the country, and primarily in the Midwest, where the last remaining “hold-out states” are located. Only six states remain that do not have some type of concealed carry statute, and Ohio is one of those. Wisconsin Senate Democrats recently blocked legislation there, while efforts are underway in Missouri to get a law through the legislature.
He also noted that the “track record” is “clearly on the side of gunowners.” In states where concealed carry laws have passed over the last several years, the emotional predictions of blood in the streets and gunfights over such trivial matters as traffic mishaps have never come true.
Waldron said states that pass carry laws frequently revisit those statutes after one or two years and amend the law to allow carry in more areas, or otherwise relax restrictions. This is possible because officials see that none of the anti-gun rhetoric comes true.
In Colorado, lawmakers have been wrestling over language that would ease concealed carry restrictions statewide, with Denver Democrats blocking the reform measure.
Coverage of the decision in the news columns of Ohio newspapers was remarkably balanced, in Waldron’s opinion. Even before the Appellate Court ruling, several newspapers in the state had suggested that it was past time for the legislature and governor to enact a reasonable measure to legalize concealed carry by qualified Ohioans.
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