Do Ohioans have a Constitutional right to carry concealed weapons?

An Ohio appellate court decision overturned a ban on carrying concealed weapons. It will be appealed to the SCOO.

I checked the Ohio Costitution and found

Of course, this is quite different from the 2nd amendment of the US Costitution.

[ul][li]Was this case correctly decided? [/li][li]Will it be overturned by SCOO? [/li][li]Does it have national implications?[/ul][/li]
My answers are Yes, Yes, No, but IANAOL.

The case in question Klein v. Leis.

Federal law supercedes state law. Agree with it or not. Just look at the medicinal marijauna laws and the assisted suicide laws that the DOJ under Ashcroft has overridden.

The opinions begins by deciding the Ohio Consitution’s right ot bear arms means that a citizen has the right to carry a gun. Then it identifies the Ohio standard for determining the validity of a restriction of a right, and decides to apply a different rule.

I’d be willing to bet that it gets overturned, for incorrectly applying the law of Ohio.

Yes, it does. But what federal law is implicated here?

No, I don’t think it does. The opinion notes that the general rule is one of strict scrutiny; the rule in Ohio is one of reasonableness, and it hopes the Ohio Supreme Court will clarify what its Arnold decision meant. But, they continue, even under the reasonableness standard, the total prohibition against carrying a concealed weapon is unconstitutional.

They may well get overturned for their incorrrect conclusion of law, but they didn’t get hung up by applying “strict scrutiny” here.

Basically, they find that in Ohio, a person carrying a concealed weapon violates R.C. 2923.12. A person openly carrying a firearm is subject to arrest for inducing panic or for disorderly conduct. Taken together, the apellate court found, this operates as a total ban on carrying firearms.

The opinion goes on to dismiss the several affirmative defenses mentioned in the statute as wholly inadequate - first, they say, because even if ultimately not convicted, a citizem exercising his right to carry a weapon is subject to arrest at any time. This makes the right meaningless, according to the judges. Further, they say, the defenses offered are so vague that a person of ordinary intelligence cannot understand them. Citing testimony heard by the trial court, a senior police official apparently testified that he wasn’t sure which defense might apply… “I’d have to call a prosecutor or an attorney,” said the police official, “to see.”

I don’t know much about Ohio law. However, judging merely from the opinion, the decision is correct. It’s perfectly possible to craft a constitutional carry law. The Ohio legislature has not done so. They should either amend their constitution, to remove the right of the people to bear arms for their defense and security, or conform their legislation to the requirements of their constitution.

  • Rick

Oh - to answer the question posed in the title of the OP: No.

Ohioans do not have the constitutional right to carry concealed weapons. But that’s not what this case is about. The prohibtion against concealed weapons, taken together with the practice of arresting persons who openly carry weapons for inducing panic or disorderly conduct, is unconstitutional. If the state made clear that openly carrying a weapon was not an arrestable offense, then Ohioans could openly carry arms in exercise of their constitutional right, and still not be permitted concealed weapons.

For what it’s worth, Virginians may openly carry weapons without any permit, and carry concealed weapons with a permit granted by the local circuit court.

  • Rick

But Rick, that is precisely the point where the decision is asinine. Since when do we consider the constitutionality of a statute in combination with another statute, unless the other statute is before the Court? As the Court said “[t]he issue today is R.C. 2923.12 [the concealed carry law].” Yes, arguably, the concealed carry law, in combination with the open carry prohibition, may effectively deny Ohio citizens their right to bear arms under the Ohio Constitution. But does that mean that the concealed carry law is the statute that is unconstitutional? Is it, perhaps, the open carry prohibition that is the unconstitutional provision?

My reading of the case is that Nieto is still controlling precedent. While a new issue of law may have been raised by R.C. ss. 2917.11 and 2917.31, that doesn’t make Nieto invalid.
A proper case on this issue probably should have been made in a case brought for violations of 2917.11 and 2917.31. The appellate court overstepped its ambit.


My understanding was that this was an action for declaratory judgement, brought by persons asserting the law was unconstitutional as applied to them. The court is certainly entitled to take judicial notice of other Ohio laws as they also apply to the appellees. In fact, not doing so would lead to an absurd, Catch-22 result: the court would conclude that R.C. 2923.12 is constitutional because it doesn’t prohibit concealed weapons, and the laws prohibiting disorderly conduct or causing a panic, as applied to open carrying of weapons, are constitutional because they don’t prohibit concealed weapons.

Now, you raise a good point: why isn’t it the disorderly conduct law that’s unconstitutional?

The only insight I can offer is that the court also found R.C. 2923.12 void for vagueness, and, based on that, found the interests of judicial economy best served by this course. The court cannot infer affirmative defenses in an effort to save R.C. 2923.12. And if Nieto is still good law, as you suggest, why has no appellant appeared to challenge his conviction for inducing panic or disorderly conduct?

I suggest that the most likely answer to this is the state’s tactic of dropping charges before a final determination can ever be reached on that point, effectively mooting the individual cases, yet leaving persons exercising their right to carry arms still vulnerable to arrest. It is precisely that evil that the court explains at great (and somewhat colloquial) length - that only a subsequent criminal proceeding can save the innocent conduct of the gun-toting Ohioan.

In short, if the decision on this case was merely, “Well, R.C. 2923.12 is OK; it’s the disorderly conduct law that’s wrongly applied here;” what’s to prevent another court from deciding “Hey, the disorderly conduct law is fine; it’s that damn concealed weapons law that’s screwed up?”

The instant opinion refers, more than once, to “inconsistent results” from Ohio courts on this subject. I don’t think they overstepped the ambit of this case by invalidating R.C. 2923.12.

  • Rick