616 N.E.2d 163 (Ohio 1993), 92-105, Arnold v. Cleveland

Docket Nº:92-105.
Citation:616 N.E.2d 163, 67 Ohio St.3d 35
Opinion Judge:DOUGLAS, Justice.
Party Name:ARNOLD et al., Appellants, v. CITY OF CLEVELAND, Appellee.
Attorney:Porter, Wright, Morris & Arthur, Richard M. Markus, Daniel F. Gourash and David C. Tryon, Cleveland, for appellants., Danny R. Williams, Director of Law, Kathleen A. Martin, Chief Asst. Director of Law, and Michael A. Dolan, Asst. Director of Law, Cleveland, for appellee., Scott R. Mote, Columbus...
Judge Panel:MOYER, C.J., and A. WILLIAM SWEENEY, WRIGHT and RESNICK, JJ., concur. HOFFMAN and PFEIFER, JJ., concur in part and dissent in part. WILLIAM B. HOFFMAN, Judge, concurring in part and dissenting in part.
Case Date:August 11, 1993
Court:Supreme Court of Ohio
 
FREE EXCERPT

Page 163

616 N.E.2d 163 (Ohio 1993)

67 Ohio St.3d 35

ARNOLD et al., Appellants,

v.

CITY OF CLEVELAND, Appellee.

No. 92-105.

Supreme Court of Ohio.

August 11, 1993

Page 164

Submitted April 7, 1993.

SYLLABUS BY THE COURT

1. The Ohio Constitution is a document of independent force. In the areas of individual rights and civil liberties, the United States Constitution, where applicable to the states, provides a floor below which state court decisions may not fall. As long as state courts provide at least as much protection as the United States Supreme Court has provided in its interpretation of the federal Bill of Rights, state courts are unrestricted in according greater civil liberties and protections to individuals and groups.

2. Section 4, Article I of the Ohio Constitution confers upon the people of Ohio the fundamental right to bear arms. However, this right is not absolute.

3. Former Cleveland Ordinance No. 415-89, prohibiting the possession and sale of "assault weapons" in the city of Cleveland, is a proper exercise of the police power under Section 3, Article XVIII of the Ohio Constitution and does not violate Section 4, Article I.

4. Former Cleveland Ordinance No. 415-89 does not violate the Supremacy Clause of the United States Constitution. (Sections 4307 through 4313, Title 10, U.S.Code, and Parts 543 and 544, Title 32, C.F.R., construed and applied.)

On February 17, 1989, the Cleveland City Council enacted Ordinance No. 415-89 ("the ordinance"). The ordinance banned [67 Ohio St.3d 35] the possession and sale of "assault [67 Ohio St.3d 36] weapons" in the city of Cleveland. 1 The ordinance provided that it was unlawful for any person to "sell, offer or display for sale, give, lend or transfer ownership of, acquire or possess any assault weapon." The ordinance specified limited exceptions for certain individuals, such as members of the armed forces and police officers. The ordinance further declared that any assault weapon was contraband and was to be seized and disposed of in accordance with R.C. 2933.43. Violation of the ordinance was classified as a misdemeanor of the first degree, mandating a $1,000 fine and six months' incarceration.

On May 12, 1989, appellants, Harry W. Arnold, Jr., and others, filed their initial complaint in the Court of Common Pleas of Cuyahoga County against appellee, city of Cleveland. Thereafter, appellants filed an amended complaint and, eventually, sought leave to file a second amended complaint.

Page 165

In their second amended complaint, appellants requested to have the ordinance declared unconstitutional and, further, sought to enjoin appellee from enforcing the ordinance. Appellants' second amended complaint contained twelve counts.

Subsequently, appellee filed a motion to dismiss count one for failure to state a claim upon which relief can be granted and, in the alternative, requested that the trial court grant it summary judgment as to that count. In support of that motion, appellee attached the affidavits of council members denying that they had ever attended a private meeting concerning the ordinance at issue. In a separate motion, appellee also requested that the court dismiss counts two through twelve. With respect to this motion, no matters were presented outside the pleading. [67 Ohio St.3d 37]

The trial court merged the two motions filed by appellee, treating them as a single motion for summary judgment. The trial court granted appellee summary judgment on all counts and, in part, concluded that the ordinance was constitutional in all respects.

On appeal, the court of appeals concluded, inter alia, that the ordinance was a valid exercise of appellee's police power pursuant to Section 3, Article XVIII of the Ohio Constitution and that the ordinance was not violative of Sections 1 or 4, Article I of the Ohio Constitution. The court further concluded that the ordinance did not conflict with Sections 4307 through 4313, Title 10, U.S.Code or Parts 543 and 544, Title 32, C.F.R. However, the court determined that the ordinance, in prohibiting the transportation of certain weapons through the city by virtue of prohibiting possession of those weapons, conflicted with Section 926A, Title 18, U.S.Code and, therefore, violated the Supremacy Clause. 2 The court of appeals also reversed the trial court and remanded the cause with respect to count one of appellants' complaint. 3 Accordingly, the court of appeals affirmed the judgment of the trial court in part and reversed it in part.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Porter, Wright, Morris & Arthur, Richard M. Markus, Daniel F. Gourash and David C. Tryon, Cleveland, for appellants.

Danny R. Williams, Director of Law, Kathleen A. Martin, Chief Asst. Director of Law, and Michael A. Dolan, Asst. Director of Law, Cleveland, for appellee.

Scott R. Mote, Columbus, urging reversal for amici curiae, League of Ohio Sportsmen, Law Enforcement Alliance of America, American Federation of Police, Ohio Gun Collectors Assn., Jews for the Preservation of the Second Amendment, Heartland Institute, Ohio Women, and Ohio Rifle and Pistol Ass'n. [67 Ohio St.3d 38]

Keating, Muething & Klekamp and Richard L. Creighton, Jr., Cincinnati, urging reversal for amicus curiae, Congress of Racial Equality, Inc.

Stefan B. Tahmassebi, Washington, DC, Porter, Wright, Morris & Arthur, Richard M. Markus, Daniel F. Gourash, David C. Tryon, Cleveland, and K. Bradley Mellor, Pittsburgh, PA, urging reversal for amicus curiae, National Rifle Ass'n of America.

Warhola, O'Toole, Loughman, Alderman & Stumphauzer and Sally Drews Brodbeck,

Page 166

Lorain, urging reversal for amicus curiae, Ohio Constitution Defense Council.

Dan L. Ferguson, San Bernardino, CA, urging reversal for amici curiae, Larry G. Beaver et al.

Jones, Day, Reavis & Pogue, Erwin N. Griswold and Edwin L. Fountain, Washington, DC, urging affirmance for amici curiae, Fraternal Order of Police of Ohio, Inc., Fraternal Order of Police Cleveland Lodge, Ohio Ass'n of Chiefs of Police and Center to Prevent Handgun Violence Legal Action Project.

Dennis A. Henigan and Judith Bonderman, Washington, DC, urging affirmance for amicus curiae, Center to Prevent Handgun Violence Legal Action Project.

Ulmer & Berne, Michael N. Ungar, Marsha I. Paley and Kimberly Brown Schroeder, Cleveland, urging affirmance for amici curiae, Handgun Control Federation of Ohio, Inc. and Ohio Chapter of the American Academy of Pediatrics.

Lee I. Fisher, Atty. Gen., Theresa Rittinger Schaefer, Andrew S. Bergman and Robert A. Zimmerman, Asst. Attys. Gen., urging affirmance for amicus curiae, Ohio Atty. Gen.

DOUGLAS, Justice.

The underlying issue in this appeal concerns the constitutionality of an ordinance which bans the possession and sale of "assault weapons" in the city of Cleveland. Appellants challenge this legislation on essentially two grounds. First, appellants contend that the ordinance is an overbroad restriction on their constitutional right to bear arms and defend themselves and, thus, is in violation of Sections 1 and 4, Article I of the Ohio Constitution. Second, appellants maintain that the ordinance violates the Supremacy Clause of the federal Constitution.

I

A

Presumption of Constitutionality

In determining the constitutionality of an ordinance, we are mindful of the fundamental principle requiring courts to presume the constitutionality of lawfully enacted legislation. Univ. Hts. v. O'Leary (1981), 68 Ohio St.2d 130, 135, 22 O.O.3d 372, 375, 429 N.E.2d 148, 152; and Hilton v. Toledo (1980), 62 Ohio St.2d 394, 396, 16 O.O.3d 430, 431, 405 N.E.2d 1047, 1049. Further, the legislation [67 Ohio St.3d 39] being challenged will not be invalidated unless the challenger establishes that it is unconstitutional beyond a reasonable doubt. Id. See, also, Hale v. Columbus (1990), 63 Ohio App.3d 368, 372, 578 N.E.2d 881, 883.

B

State and Federal Constitutions

Section 4, Article I of the Ohio Constitution provides that:

"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."

Appellants maintain that the ordinance violates Section 4, Article I of the Ohio Constitution. 4 Specifically, appellants urge that the ordinance acts to deny them the fundamental "individual" right to bear arms and defend themselves. Appellants' argument places at issue the scope of Section 4, Article I, which has not been previously considered by this court.

The question as to whether individuals have a fundamental right to bear arms has, seemingly, been decided in the negative under the Second Amendment to the United States Constitution. 5 See, generally,

Page 167

United States v. Cruikshank (1876), 92 U.S. 542, 553, 23 L.Ed. 588, 591-592; Presser v. Illinois (1886), 116 U.S. 252, 264-265, 6 S.Ct. 580, 584, 29 L.Ed. 615, 618-619; and United States v. Miller (1939), 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206. See, also, Quilici v. Village of Morton Grove (C.A.7, 1982), 695 F.2d 261, 269, certiorari denied (1983), 464 U.S. 863, 104 S.Ct. 194, 78 L.Ed.2d 170; Rabbitt v. Leonard (1979), 36 Conn.Supp. 108, 110, 413 A.2d 489, 490; Commonwealth v. Davis (1976), 369 Mass. 886, 890, 343 N.E.2d 847, 850; and E. Cleveland v. Scales (1983), 10 Ohio App.3d 25, 28-29, 10 OBR 32, 35-36, 460 N.E.2d 1126, 1130-1131.

In Presser, supra, the United States Supreme Court considered a claim that an Illinois statute, which forbade men to associate together as military organizations or to drill or parade with arms in public without...

To continue reading

FREE SIGN UP