City of East Cleveland v. Scales

• Decision Date: 25 April 1983
• Parties: , 10 O.B.R. 32 CITY OF EAST CLEVELAND, Appellee, v. SCALES, Appellant.
• Court: Ohio Court of Appeals

Page 25

10 Ohio App.3d 25

460 N.E.2d 1126, 10 O.B.R. 32

CITY OF EAST CLEVELAND, Appellee, v. SCALES, Appellant.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

April 25, 1983.

Syllabus by the Court

1. East Cleveland Municipal Ordinance, Section 545.14(a), requiring registration of handguns, is a valid exercise of local self-government not in conflict with general laws under Section 3, Article XVIII of the Ohio Constitution.

2. The Second Amendment to the Constitution of the United States does not confer an individual right to bear arms.

3. East Cleveland Municipal Ordinance, Section 545.14(a), requiring registration of handguns, is a valid exercise of the police power under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution of the United States.

Leonard Young, Cleveland, for appellee.

James D. London and Cleveland Legal Aid Soc., Cleveland, for appellant.

DAY, Presiding Judge.

On June 17, 1981, a complaint was brought in the East Cleveland Municipal Court charging that "on or about the 9th day of April AD 1981 * * * Rosetta C. Scales did unlawfully and knowingly possess or control or have on or about her person a handgun without a handgun owner's identification card issued to her and not being exempt or upon a suitable firing range, to wit: a .38 caliber Arminius Titan Tiger * * *," in violation of East Cleveland Municipal Ordinances Section 545.14(a). ¹

Defendant-appellant Scales ("defendant") filed a motion to dismiss, claiming that the ordinance was unconstitutional. Following oral argument, the court ruled against her, upholding the ordinance. The defendant was found guilty by the court, fined, and given a three-day suspended sentence. The gun was ordered confiscated and destroyed.

The defendant appeals assigning one error:

"The ordinances of the city of East Cleveland which require the registration of handguns, the possession of an identification card, and the penalties thereunder, violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United State's [sic ] Constitution."

For the reasons adduced below, the judgment is affirmed.

I

The defendant's single assignment of error presents a thicket of issues, including questions involving the Second and Fourteenth Amendments to the United States Constitution and Section 4, Article I of the Ohio Constitution. Untangling them, the first question is whether the ordinance was passed pursuant to legitimate authority.

Section 3, Article XVIII of the Ohio Constitution provides that:

"Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."

There is little doubt that the gun control ordinance is a police regulation passed in the exercise of local self-government. A decisive question is whether the ordinance is "in conflict with general laws," particularly R.C. 2923.13. ²

The law in Ohio on "conflict" is stringent. Pre-emption is not easily demonstrated. The classic test was given in Village of Struthers v. Sokol (1923), 108 Ohio St. 263, at 268, 140 N.E. 519:

" * * * No real conflict can exist unless the ordinance declares something to be right which the state law declares to be wrong, or vice versa. There can be no conflict unless one authority grants a permit or license to do an act which is forbidden or prohibited by the other."

This rule has been followed in numerous cases.

An example of strict or actual conflict was found in a unique situation where the same crime was treated on the one hand as a felony by the state and on the other as a misdemeanor by the municipality. The court found conflict because the municipality was able to defeat state policy "by deliberately changing an act which constitutes a felony under state law into a misdemeanor * * *." Cleveland v. Betts (1958), 168 Ohio St. 386, 389, 154 N.E.2d 917 . ³

In the present case, however, R.C. 2923.13 punishes conduct significantly different than that punished by the East Cleveland ordinance. The local law makes criminal the failure of an otherwise qualified person to obtain the proper registration and identification. The state law prohibits the possession of firearms by described categories of persons.

Applying the Sokol test, there is no actual conflict. R.C. 2923.13(A) states a negative: certain classes of people shall not "knowingly acquire, have, carry or use any firearm or dangerous ordnance." The statute does not say that those people not in the excluded classes have a right to carry weapons. The imposition of a further requirement that a possessor of firearms follow registration procedures does not conflict with the state strictures. The question remains--is there any federal constitutional impediment to the ordinal regulation?

II

Under the rubric of the Due Process Clause, the defendant claims what is variously called a "civil right" or "fundamental right" to bear arms; and further, that the ordinance unreasonably interferes with this right. Two possible sources for the claimed right are suggested: the federal Constitution and the common law. Only the first is of concern here except as the common law illumines the historical context of the Second Amendment. For while the common law does not announce transcendental doctrine, the Second Amendment does.

If, under the common law, there was a right to bear arms available to individuals, regulation of the right has existed since at least 1328. The Statute of Northampton, 1 English Statutes at Large 420, 422, 2 Edw. III, Chapter 3 (1328), provided that:

"[N]o man great nor small [shall] * * * go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison at the King's pleasure."

Later, in 1670, the very keeping of a gun was barred to those of insufficient property:

"III. And it is hereby enacted and declared, That all and every person and persons not having lands and tenements, or some other estate of inheritance, in his own or his wife's right, of the clear yearly value of one hundred pounds per annum, or for term of life, or having lease or leases of ninety-nine years, or for any longer term, of the clear yearly value of one hundred and fifty pounds, other than the son and heir apparent of an esquire, or other person of higher degree, and the owners and keepers of forests, parks, chases or warrens, being stocked with deer or conies for their necessary use, in respect of the said forests, parks, chases or warrens, are hereby declared to be persons by the laws of this realm not allowed to have or keep for themselves, or any other person or persons, any guns, bows, greyhounds, settingdogs, ferrets, coneydogs, lurchers, hays, nets, lowbels, harepipes, gins, snares, or other engines aforesaid; but shall be and are hereby prohibited to have, keep or use the same." 8 English Statutes at Large 380, 381, 22 Car. II, Chapter 25, Section 3.

The defendant suggests that the Second Amendment to the federal Constitution protects the claimed right. ⁴

The Second Amendment provides:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The crucial question in interpreting the amendment is the relation between the first two clauses and the second two.

In United States v. Miller (1939), 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206, the court adhered to what may be called the "militia" or "collectivist" interpretation and held that, absent proof to the contrary, an eighteen-inch barrel shotgun was not ordinary military equipment reasonably related "to the preservation or efficiency of a well regulated militia," id. at 178, 59 S.Ct. at 818. Thus, the Second Amendment was no impediment to a statute barring the unregistered possession of the weapon.

The court put the amendment into perspective:

"The Constitution as originally adopted granted to the Congress power--'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' [Clauses 15, 16, Section 8, Article I.] With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." (Emphasis added.) Id.

Thus, the clauses of the amendment are bound together. The right of an individual is dependent upon a role in rendering the militia effective. It is a military, not an individual, concept. ⁵

Moreover, it is clear from its history that the Second Amendment figured importantly in the equation balancing power between the federal and state governments. By guaranteeing the right of the states to arm their militias composed of citizen-soldiers, the amendment could forestall reliance upon a professional, federal standing army, which was seen as a threat to liberty. ⁶

The amendment responds to the fears discussed by Madison in The Federalist, No. 46:

" * * * Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one...