COLUMBUS, Ohio (CN) — A 1974 Ohio law that criminalizes possession of a firearm while intoxicated does not violate the Second Amendment and can be enforced against citizens in their own homes, a divided state high court ruled Wednesday.
The Ohio Supreme Court’s 4-3 decision stems from the 2018 arrest and subsequent trial of Frederick Weber on a single misdemeanor charge of carrying a firearm while under the influence of alcohol, codified in section 2923.15 of the Ohio Revised Code.
Weber was arrested in Clermont County after his wife called police at 4 a.m. and told the dispatcher he was “very intoxicated and holding a shotgun,” according to court documents.
Weber’s wife told police everything was okay when they arrived, but police entered the home and confronted Weber, who was still holding the weapon, which he claimed was not loaded.
The officers attempted to perform field sobriety tests after Weber put the weapon down, but he was apparently so drunk he could not follow their commands.
Weber was convicted after a bench trial and sentenced to a suspended, 10-day prison sentence, eight hours of community service and a $100 fine.
He appealed to the state’s high court after an appeals court upheld his conviction, arguing the law is an unconstitutional infringement on his Second Amendment right to bear arms.
Gary Rosenhoffer, Weber’s attorney, argued the right to have a gun in your home is “absolute,” and cited the 2008 U.S. Supreme Court ruling in District of Columbia v. Heller.
Writing for the majority Wednesday, Chief Justice Maureen O’Connor was quick to point out that the Heller decision did not grant Americans an “unlimited” right to bear arms.
“Weber’s merits brief is only six pages long, and he presents no historical evidence and no discussion of how the original understanding of the right to bear arms relates to this case,” she said. “This is significant because the complete ban on handgun possession in the home that was at issue in Heller is very different from the very limited ban in R.C. 2923.15, which prohibits only carrying or using a firearm while intoxicated.”
O’Connor rejected Rosenhoffer’s plea to apply strict scrutiny to his client’s case, and instead cited the application of intermediate scrutiny by “numerous courts … to regulations on guns” as the appropriate analytical framework.
The state argued the criminal statute imposes a minimal burden on a citizen’s right to bear arms and serves the legitimate governmental interest of protecting people “from harm from the combination of firearms and alcohol,” and O’Connor agreed.
“When an intoxicated person carries or uses a gun,” she wrote, “either at home or outside the home, the impairment of cognitive functions and motor skills can result in harm to anyone around the intoxicated person and even to the intoxicated person himself or herself."
O’Connor also dismissed the notion that the unloaded nature of Weber’s gun should have altered the state’s application of the law, writing that such an argument “presumes that an intoxicated person can be expected to accurately determine whether a gun is unloaded.”
The judge pointed to “far broader and more burdensome laws,” including lifetime bans for certain criminals, that have passed constitutional muster. She noted even the National Rifle Association admits “it is unsafe to carry a gun while intoxicated, and they do not make any distinction based on whether one is at home or the gun is unloaded.”
Justices Michael Donnelly and Melody Stewart concurred with O’Connor’s opinion, while Justice R. Patrick DeWine concurred in judgment only.
Justice Patrick Fischer wrote a dissenting opinion that said the case shold be remanded to allow the state’s 12th District Court of Appeals to apply an analytical framework based on the Second Amendment.
“In Heller,” Fischer said, “the court notably did not employ an interest-balancing test when faced with a Second Amendment challenge. Rather, the court resolved that case by focusing on the text, history, and tradition of the Second Amendment.”
Fischer cited the Heller decision’s analysis of the “English roots” of the right to bear arms, and said that any permissible restrictions would have to be based on “historical justifications.”
Justices Sharon Kennedy and Judith French joined Fischer’s dissent.
Neither the Clermont County Prosecutor’s Office nor Rosenhoffer immediately responded to requests for comment.
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