Appeals Court Rules Ohio’s Gun Carry Ban Unconstitutional: Hamilton County Joins Vermont in Allowing Unlicensed Gun Carry Again

Wednesday, April 10th, 2002

A unanimous Appeals Court ruled that Ohio’s ban on carrying concealed firearms is unconstitutional in a very strongly worded opinion. The monumental decision upheld Judge Ruehlman’s trial court decision and legalizes concealed carry in Hamilton County for the third time in less than two years. Unless a stay is issued in the case, law-abiding, mentally competent adults can now carry guns concealed and have loaded guns in their vehicles without fear of being arrested and prosecuted for exercising their rights under the Ohio Constitution. The Second Amendment Foundation (SAF), a leading national gun owner rights organization, is both a named plaintiff in the case and funded the lawsuit.

“This is total vindication of the trial court’s decision and another great victory for the Second Amendment Foundation and the citizens of Ohio,” stated SAF Founder Alan Gottlieb. “All three judges were of the same opinion, these carry ban laws are offensive to common sense and need to be stricken from the books, and I couldn’t agree more.”

SAF’s lawsuit exposed the current scheme as a violation of the Ohio Constitution (Article 1, Section 1 [inalienable rights to defending life, liberty and property], Article 1, Section 4 [bear arms for defense and security], Article 1, Section 2 [equal protection] and Article 1, Section 16 [due process]). In addition, as all four judges found, the current law treats people as if guilty until proven innocent!

The Ohio laws in question, R.C. 2923.12, bans all concealed carry of firearms with felony penalties for any violations while R.C. 2923.16 bans loaded guns in a motor vehicle. Only after a person is caught violating either of these provisions, and the person incurs the costs and stresses of a criminal trial, does the current law allow the possibility of an “affirmative defense” to be made. It was for this reason, and others, that the laws were struck down.

“Laws that are incomprehensible to the average citizen must be struck down as unconstitutionally vague,” reminded Dave LaCourse, SAF Public Affairs Director. “The carry ban laws entrapped innocent people into thinking that they could exercise their rights when they couldn’t, and that is wrong, and I am pleased the court saw this.”

Plaintiffs include Pat Feely, who was previously arrested and tried under the gun carry ban scheme. Both the prosecutor and the judge in that case stated that the law should be changed or repealed. While Feely was acquitted at trial, he risked the same charges again if found carrying a concealed firearm in the future. The threat and costs of repeated prosecutions was only one of many reasons the current law was declared unconstitutional.

Mr. Feely carries large sums of cash as part of his employment. Feely, private investigator Chuck Klein and businessman James Cohen sought to have their right of self-defense restored with several pro-gun rights groups like Ohioans for Concealed Carry, Peoples Rights Organization and the Second Amendment Foundation.

This decision does NOT mean that criminals, juveniles and other prohibited persons can carry firearms since many other gun laws remain enforceable. This was made clear in the court’s ruling and if there are any questions about this fact, please call the numbers above or visit our website at http://www.saf.org/Ohio.htm

“This lawsuit has always been about restoring the right to bear arms to law-abiding adults under the Ohio Constitution, and does not benefit criminals in any way, shape or form,” said Gottlieb. “The hysterical gloom-and-doom rhetoric from the other side highlights that they have not studied the successes in the vast majority of states that now allow concealed carry.”

Nationally, 42 states specifically allow the carrying of concealed weapons or firearms with a license or permit. Vermont makes 43 states by allowing the carrying of concealed firearms without any license/permit because of a court decision, State v. Rosenthal (1903). Of the remaining 7 states, Ohio is unique with its incomprehensible affirmative defense and on whom the burden of proof is placed.