By Dan Trevas
Court News Ohio


The Ohio Supreme Court this week to uphold the conviction of a Clermont County man for holding a shotgun in his home while intoxicated.

A divided Supreme Court ruled that Ohio’s law prohibiting carrying or using a firearm “while under the influence of alcohol or any drug of abuse” does not violate the Second Amendment of the U.S. Constitution.

Frederick Weber argued that the Second Amendment protected him from arrest for the gun violation because he was in his home when officers were called in February 2018.

In the Court’s lead opinion, Chief Justice Maureen O’Connor noted that the U.S. Supreme Court’s Second Amendment decisions have made clear that the right to bear arms is not without limitation, and that Ohio’s law is a targeted restriction that applies for a very limited time due to the inherently dangerous nature of carrying or using a gun while intoxicated.

Justices Michael P. Donnelly and Melody J. Stewart joined the chief justice’s opinion.

Justice R. Patrick DeWine concurred in judgment only with a separate opinion. Justice DeWine agreed with the majority’s conclusion that the statute was not unconstitutional as applied to the particular facts of Weber’s case. But he found the majority’s analysis was not protective of Second Amendment rights. In Justice DeWine’s view, the majority improperly applied an “interest balancing” test rather than evaluate the challenged restriction based upon the original understanding of the Second Amendment.

In a dissenting opinion, Justice Patrick F. Fischer noted that courts have been divided about the proper way to test the constitutionality of firearm laws since the U.S. Supreme Court issued its landmark District of Columbia v. Heller decision in 2008. He noted today’s decision follows an interest-balancing test created by federal courts. He suggested Ohio adopt another approach that focuses “on the text, history, and tradition of the Second Amendment to see if the challenged law or rule is consistent with the scope of the right as originally understood.”

Justices Sharon L. Kennedy and Judith L. French joined Justice Fischer’s dissent.

At about 4 a.m. on Feb. 17, 2018, Weber’s wife called 911 to report that her husband was very intoxicated and holding a shotgun. When Clermont County Sheriff’s Department Deputy Christopher Shouse and Sergeant Mark Jarman arrived, Weber’s wife reported, “Everything is OK, he put it away.”

But when Shouse entered the home, Weber was still holding the shotgun with one hand and he ordered Weber to drop it. Weber did so and told the deputy sheriff the gun was not loaded.

Shouse attempted to perform a field sobriety test on Weber, but Weber was unable to follow his directions and admitted several times he was drunk. Shouse reported that when he asked Weber why he had the shotgun, Weber seemed confused and could not give a definitive answer. Weber later claimed he was unloading the shotgun to wipe it down. Shouse picked up the gun and found it was unloaded.

Jarman observed that Weber was unstable on his feet and swaying as Shouse attempted to give him instructions for the field sobriety test.

Weber was charged with violating R.C. 2923.15(A), which states: “No person, while under the influence of alcohol or drugs of abuse, shall carry or use any firearm or dangerous ordnance.”

After a bench trial, Weber was found guilty and sentenced to 10 days in jail with all 10 days suspended. He also was 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. Weber appealed to the Supreme Court, which agreed to hear his case.

Weber argued R.C. 2923.15, as applied to his case, violated the Second Amendment. Chief Justice O’Connor explained that since Heller and the U.S. Supreme Court’s 2010 McDonald v. Chicago decision, most federal courts have adopted a two-step test for analyzing whether a firearm regulation is constitutional under the Second Amendment.

The lead opinion noted that in Heller, the high court ruled the Second Amendment protects a person’s right to possess and carry weapons for self-defense. In Heller, the District of Columbia’s restriction on handguns was so extensive that the court majority characterized it as completely banning handgun possession in the home. However, the U.S. Supreme Court did not say every regulation impairing the possession or carrying of weapons in some way is automatically unconstitutional. It also made clear that it did not cast doubt on several long-standing prohibitions, such as laws preventing the mentally ill and felons from possessing firearms.

Over the last 12 years, courts have developed a two-step approach for Second Amendment challenges. The first step asks whether the challenged law “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 the Fourteenth Amendment in 1868. If a law does not regulate conduct originally understood to be protected by that right, the law does not violate the Second Amendment.

The second part of the test asks whether the law at issue severely burdens the core of the Second Amendment protections. Laws that do not severely burden a core right are judged by the “intermediate scrutiny” standard, which means the law “must further an important governmental interest” in a way that is substantially related to that interest.

The lead opinion found that R.C. 2953.15 was constitutional. As for the first step, it noted that laws regulating the use of guns while consuming alcohol appeared to have a long history. But because Weber did not make any arguments concerning the original understanding of the right to bear arms with respect to the conduct regulated by R.C. 2923.15, the lead opinion declined to reach a conclusion at step one of the test. Instead, it assumed for the sake of argument that R.C. 2923.15 does regulate protected conduct, meaning Weber’s challenge would not be rejected at step one.

At the second step, the lead opinion found that barring the carrying of a firearm while intoxicated “does not come close to a core” Second Amendment right.

“The reason is plain: Intoxication impairs cognitive functions and motor skills, so an intoxicated person who attempts to carry or use a gun in an otherwise lawful manner is less likely to be able to do so safely and effectively and instead presents a greater risk of harm to innocent persons in the area as well as himself or herself,” the opinion stated.

The Court also stated R.C. 2923.15 is a very limited restriction. It does not prevent someone who consumes alcohol from owning a gun, it does not prohibit a gun from being in a house, and it does not require that the gun be rendered inoperable if someone in the house is intoxicated. “The also leaves persons who consume alcohol free to carry and use a gun in the home for self-defense when they are not intoxicated,” the lead opinion stated.

The lead opinion judged R.C. 2953.15 using intermediate scrutiny. It found that R.C. 2953.15 furthers the important government interest in preventing harm from the combination of guns and alcohol. It also found that R.C. 2953.15 advances that government interest using means that are substantially related to that interest.

Justice DeWine wrote that he did not agree with the lead opinion’s use of the two-step process and the evaluation of the Ohio law using the intermediate-scrutiny standard. He wrote that the Heller and McDonald decisions require the Court to use the standard of examining the text, history and tradition of the Second Amendment.

Justice DeWine explained that in this as applied challenge, the only thing before the Court was whether the statute was unconstitutional as applied to Weber. The question, Justice DeWine, said is whether there is a constitutional right to be drunk and handle a firearm, or can the government say to you: “you’re allowed to be drunk and you have a right to handle a firearm – you just can’t do both at the same time.” Based on the text, history and tradition of the Second Amendment, DeWine said the answer was clearly the latter.

The concurrence reasoned that Heller stated that laws restricting the mentally ill from possessing guns are presumptively lawful. And, given intoxicated persons and the mentally ill can present similar dangers to public safety, the reasoning that supports restricting gun possession by the mentally ill applies with equal force to those who are intoxicated.

The concurrence also stated the “best available evidence about the founding generation’s understanding of the right to bear arms reveals that the right did not preclude restrictions on classes of people who presented a present danger to others” also supported the law’s constitutionality.

The concurrence examined a wealth of historical evidence and explained that prohibitions involving guns and alcohol in the 1700s and 1800s further support the position that the Ohio law is “not inconsistent with the Second Amendment.”

In his dissent, Justice Fischer noted that state and federal courts would benefit from more clarity from the U.S. Supreme Court on how to evaluate challenges to laws claiming to violate the Second Amendment. He wrote that instead of using the “convoluted” two-step approach, the Court should follow the Heller and McDonald decisions and look at the text, history, and tradition of the Second Amendment.

Because the parties in this case were not asked by the appellate court or the Supreme Court to proceed under that standard, the dissent would remand the case to the Twelfth District for further proceedings.

2019-0544. State v. Weber, Slip Opinion No. 2020-Ohio-6832.