Appeals Court Rules in Second Amendment Case
A trial court will have to revisit a case about the improper handling of a firearm in a motor vehicle to determine whether the Second Amendment right to bear arms applies and whether the state statute in question violates those rights, according to an August 22 decision by the Ninth District Court of Appeals.
Judge Eve V. Belfance authored the majority opinion in the 2-1 ruling, which reversed the denial of a Summit County man’s motion to dismiss his conviction. Sean Shover claimed the charge and conviction were unconstitutional under the U.S. Constitution’s Second Amendment.
Shover and his father, who brought a loaded gun, drove to Akron to provide protection to Shover’s brother who owed a man $20. When they stopped to pick up the brother at a gas station, police – who responded to a reported kidnapping – surrounded the car and arrested all three men. The trial court sentenced Shover to 18 months of community control for the improper handling of a firearm in a motor vehicle.
Shover argued that Ohio Revised Code section 2923.16(B) is unconstitutional given the U.S. Supreme Court decisions in District of Columbia v. Heller and McDonald v. Chicago because it “does not contain an exception for a person to transport a loaded handgun when there is reasonable fear of a criminal attack.” (The brother told his father over the phone that the man owned a gun.)
Judge Belfance wrote that the trial court was in error.
“The trial court did not reach the question of whether the Second Amendment applied in this case, apparently believing that the Second Amendment required no more rigorous review than that already required by the Ohio Constitution for laws infringing upon the right to bear arms,” she wrote. “However, the trial court was incorrect because Heller and McDonald indicate that courts must apply a heightened level of scrutiny to laws infringing upon a Second Amendment right.”
While Judge Belfance noted that the Ohio Supreme Court “set forth the level of scrutiny applicable to gun-control laws under the Ohio Constitution” with rulings in two cases, “Ohio courts have not reached any consensus as to the proper level of scrutiny in the aftermath of Heller.”
Judge Carla D. Moore concurred in the opinion.
Judge Clair E. Dickinson dissented, noting that “my reading of Heller leads me to believe that the scope of the right described by Justice (Antonin) Scalia (author of the opinion) is not limited to one’s household.” Judge Dickinson wrote that the U.S. Supreme Court implied the right “may be somewhat more regulated” outside the home but that right “extends to at least some public places.”
He noted that neither party briefed the issue of whether the statute violates Shover’s Second Amendment right.
“Because I believe that Section 2923.16(B) imposes a burden on conduct falling within the scope of the Second Amendment right outlined in Heller, I would ask the parties to brief the issue of what test applies to evaluate whether the statute unconstitutionally impinges upon that right as a prelude to this Court deciding that question of law. A remand at this time serves no purpose.”
State v. Shover, 2012-Ohio-3788
Criminal Appeal From: Summit County Court of Common Pleas
Judgment Appealed From Is: Reversed and Remanded
Date of Judgment Entry on Appeal: August 22, 2012
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