State v. Weber, 122320 OHSC, 2019-0544

Docket Nº:2019-0544
Opinion Judge:O'CONNOR, C.J.
Party Name:The State of Ohio, Appellee, v. Weber, Appellant.
Attorney:D. Vincent Faris, Clermont County Prosecuting Attorney, and Nick Horton, Assistant Prosecuting Attorney, for appellee. Gary A. Rosenhoffer, for appellant. Jones Day, Yvette McGee Brown, and Benjamin C. Mizer, urging affirmance for amici curiae Giffords Law Center to Prevent Gun Violence and Brady...
Judge Panel:Donnelly and Stewart, JJ., concur. DeWine, J., concurring in judgment only. Fischer, J., dissenting. Kennedy and French, JJ., concur in the foregoing opinion.
Case Date:December 23, 2020
Court:Supreme Court of Ohio

2020-Ohio-6832

The State of Ohio, Appellee,

v.

Weber, Appellant.

No. 2019-0544

Supreme Court of Ohio

December 23, 2020

Submitted February 25, 2020

Appeal from the Court of Appeals for Clermont County, No. CA2018-06-040, 2019-Ohio-0916.

D. Vincent Faris, Clermont County Prosecuting Attorney, and Nick Horton, Assistant Prosecuting Attorney, for appellee.

Gary A. Rosenhoffer, for appellant.

Jones Day, Yvette McGee Brown, and Benjamin C. Mizer, urging affirmance for amici curiae Giffords Law Center to Prevent Gun Violence and Brady Center to Prevent Gun Violence.

Zach Klein, Columbus City Attorney, and Charles P. Campisano, Assistant City Attorney; and Every Town Law, Eric Tirschwell, Mark Anthony Frasseto, and Krystan Hitchcock, urging affirmance for amicus curiae city of Columbus.

Paula Boggs Muething, Cincinnati City Solicitor, and Emily Smart Woerner and Jacklyn Gonzales Martin, Assistant City Solicitors, urging affirmance for amicus curiae city of Cincinnati.

Eve V. Belfance, Akron Director of Law, urging affirmance for amicus curiae city of Akron.

Barbara Doseck, Dayton City Attorney, and John C. Musto, Assistant City Attorney, urging affirmance for amicus curiae city of Dayton.

Anthony L. Geiger, Lima Law Director, urging affirmance for amicus curiae city of Lima.

Dale R. Emch, Toledo Director of Law, urging affirmance for amicus curiae city of Toledo.

O'CONNOR, C.J.

{¶ 1} It has been illegal to carry a firearm while intoxicated in Ohio since 1974. R.C. 2923.15, Am.Sub.H.B. No. 511, 134 Ohio Laws 1866, 1968 (effective January 1, 1974). This case presents the question whether the right to bear arms contained in the Second Amendment to the United States Constitution includes the right to carry a firearm while intoxicated, making Ohio's statute unconstitutional. We hold that it does not. We therefore affirm the judgment of the Twelfth District Court of Appeals.

I. BACKGROUND

{¶ 2} At 4:00 a.m. on February 17, 2018, appellant, Frederick Weber, was very intoxicated and holding a shotgun. His wife called 9-1-1. Deputy Christopher Shouse and Sergeant Mark Jarman were dispatched to Weber's house. When they arrived, Weber's wife told them, "Everything is okay, he put it away." But when Shouse stepped inside the house, he encountered Weber still holding the shotgun by the stock with one hand. Shouse ordered him to drop the gun. Shouse also heard Weber say, in slurred speech, that the firearm was not loaded.

{¶ 3} Shouse attempted to assess Weber's sobriety by performing a field sobriety test, but Weber could not complete the test because he was unable to follow Shouse's directions. Shouse also noticed the smell of alcohol on Weber, and Weber admitted several times that he was drunk. According to Shouse, Weber was "very intoxicated." When Shouse asked Weber why he had the shotgun, Weber seemed confused and could not give a definitive answer. Shouse picked the shotgun up and determined that it was unloaded. Weber later claimed that he was unloading the shotgun to wipe it down.

{¶ 4} Jarman observed that Weber's speech was slurred and his eyes were glassy and bloodshot. Weber was also unstable on his feet. According to Jarman, "he was actually swaying while [Shouse] had him in the instruction position." Jarman described Weber as "[v]ery impaired" and "highly intoxicated."

{¶ 5} Weber was charged with violating R.C. 2923.15(A), which provides that "[n]o person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance." A violation of this provision is a first-degree misdemeanor. R.C. 2923.15(B). After a bench trial, Weber was found guilty and sentenced to ten days in jail, with all ten days suspended. He was also placed on community control for one year, ordered to complete eight hours of community service, and fined $100. The Twelfth District Court of Appeals affirmed his conviction.

{¶ 6} Weber raised four propositions of law in a discretionary appeal to this court. We accepted three for review. See 156 Ohio St.3d 1452, 2019-Ohio-2780, 125 N.E.3d 941. Proposition 1: "The using a weapon while intoxicated statute is unconstitutional as applied to the facts of this case" Proposition 2: "Where a challenge is made that a statute unconstitutionally impinges on the fundamental right to bear arms, review is undertaken employing a strict scrutiny standard."

Proposition 3: "Under any of the standards of scrutiny applied to enumerated constitutional rights, a prohibition of having firearms while intoxicated in the home-where [the need for] defense of self, family and property is most acute-fails [to pass] constitutional muster."

In all three propositions, Weber argues that R.C. 2923.15 violates the Second Amendment to the United States Constitution as applied to the facts of this case.

II. APPLICABLE LAW

{¶ 7} The constitutionality of a statute is a question of law that we consider de novo. See Cleveland v. State, 157 Ohio St.3d 330, 2019-Ohio-3820, 136 N.E.3d 466, ¶ 15.

A. District of Columbia v. Heller

{¶ 8} The Second Amendment provides that "[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 United States Supreme Court held in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), that the Second Amendment protects a person's right to possess and carry weapons for self-defense. But the court did not hold in Heller that every regulation impairing the possession or carrying of weapons in some way is automatically unconstitutional. Heller makes it clear that "[l]ike most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Id. at 626.

{¶ 9} The Supreme Court emphasized that "nothing in [the opinion] should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id. at 626-627. The court also made clear that it does not "suggest the invalidity of laws regulating the storage of firearms to prevent accidents." Id. at 632. And the court recognized "another important limitation on the right to keep and carry arms," id. at 627: the Second Amendment protects only the sort of weapons in common use at the time of the Amendment and only when such a weapon is used "for lawful purposes like self-defense," id. at 626.

{¶ 10} After this discussion of the Second Amendment, the court turned to the statute at issue in the case. The District of Columbia had generally prohibited the possession of handguns and required even lawfully owned firearms, such as registered long guns, to be "unloaded and dissembled or bound by a trigger lock or similar device" unless they were located in a place of business or were being used for lawful recreational activities, former D.C.Code 7-2507.02, 23 D.C.Reg. 2464 (Sept. 24, 1976). The majority observed that the law "totally ban[ned] handgun possession in the home" and required any lawful firearm in the home to be rendered inoperable. Heller at 628. The law therefore barred" 'the most preferred firearm in the nation'" from being used in self-defense of" 'one's home and family.'" Id. at 628-629, quoting Parker v. District of Columbia, 478 F.3d 370, 400 (D.C.Cir.2007). Such a "severe restriction," id. at 629, the court held, violated the Second Amendment "[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights," id.

{¶ 11} The majority also acknowledged that because the case represented the Supreme Court's "first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field." Heller, 554 U.S. at 635, 128 S.Ct. 2783, 171 L.Ed.2d 637. The decision therefore did not conclusively determine "applications of the right" to other regulations or provide "extensive historical justification for those regulations of the right that [it] describe[d] as permissible." Id.

{¶ 12} Subsequently, the court held that the Second Amendment right recognized in Heller is applicable to the states. McDonald v. Chicago, 561 U.S. 742, 791, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).

B. Cases since Heller: the two-step framework

{¶ 13} After Heller was decided, one of the main tasks for courts presented with Second Amendment challenges to firearm regulations was deciding which analytical framework to use. Over the past 12 years, courts have converged on a two-step framework to decide Second Amendment cases. Kolbe v. Hogan, 849 F.3d 114, 132-133 (4th Cir.2017) (en banc) (identifying decisions from the Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits applying the two-step approach); Gould v. Morgan, 907 F.3d 659, 669 (1st Cir.2018) (adopting the two-step approach after Kolbe was decided).

{¶ 14} In the first step of the framework, courts ask whether" 'the challenged statute "regulates activity falling outside the scope of the Second Amendment right as it was understood at the relevant historical moment," '" namely, the ratification of the Bill of Rights in 1791 or of the Fourteenth Amendment in 1868. Stimmel v. Sessions, 879 F.3d 198, 204 (6th Cir.2018), quoting United States v. Greeno, 679 F.3d 510, 518 (6th Cir.2012), quoting Ezell v. Chicago, 651 F.3d 684, 702-703 (7th Cir.2011). If the regulation falls outside...

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