Concealed-carry debate still leaves both sides up in arms
9/19/2005Seventeen months after Ohioans gained the privilege to carry concealed handguns, the law continues to be poked and prodded for weaknesses.
Among the issues: Can cities make their own exceptions to the state law?
"It's a very confused area of the law," said Ric Simmons, an assistant professor of law at Ohio State University who has looked at both sides of the argument. "There's a lot of contradictory opinion of both sides."
The state lawmaker who helped pass the concealed-carry law last year will introduce a bill as early as tomorrow that he says he hopes will shore up the state's authority on the issue.
The law, which went into effect April 8, 2004, allows Ohioans with permits to carry concealed handguns, but it defines 10 exemptions. People can't carry concealed weapons to places such as police stations, day-care centers, or churches, for example.
The intent was to have a uniform state law on the issue of concealed carry, State Rep. Jim Aslanides (R., Coshocton) said.
But regulations passed in 1996 in Toledo prohibit firearms in parks.
And in Clyde, City Council unanimously passed a ban on guns in parks six weeks after Ohio's concealed-carry law went into effect.
"We noticed some cities vary as to their interpretation of our Second Amendment rights," Mr. Aslanides said. "Then what happens as a result of that [is that] there's a challenge by someone who is prosecuted, and they defer to the courts to determine whether they operated within their rights."
According to Mr. Aslanides, the language in his measure, which still was being worked on Friday, would make it clear that state law trumps any attempts by municipalities to determine their own exceptions.
Still, it appears as if a Toledo Municipal Court judge has handed down a victory for those who side with the municipalities.
Earlier this month, Toledo Municipal Court Judge Gene Zmuda found a Luckey, Ohio, man guilty of violating the city's park rules after he entered Ottawa Park in April carrying a sidearm and challenged police to arrest him.
Bruce Beatty's point was that Toledo's law was in conflict with the new state concealed-carry law. He told police, public officials, and reporters that he was willing to be arrested to make his point.
He lost the first round when Judge Zmuda agreed with the city's argument that the prohibition against carrying handguns in a park was within Toledo's home-rule authority and that the park rule was not in conflict with state law.
He ordered Mr. Beatty to pay a $50 fine for the misdemeanor offense.
Judge Zmuda based his decision on an Ohio 6th District Court of Appeals ruling that Toledo could pass predatory lending laws that offered certain protections against predatory lenders that the Ohio Revised Code does not.
Further, the General Assembly may have intended the law to automatically trump local rules, but it's not automatic, he asserted.
"Such actions invade the province of the judicial branch," he said.
Mr. Beatty said Judge Zmuda based his decision on politics and not the law.
Mr. Beatty's attorney, Bill Stephenson, said he plans to file an appeal this week.
In nearby Clyde, Ohioans for Concealed Carry challenged Clyde council's action by way of a lawsuit filed in Sandusky County Common Pleas Court. The plaintiffs argued before Judge Harry Sargeant that the state law is supreme.
Without a uniform state law on the topic, a patchwork of rules will arise - unfairly targeting those who carry concealed firearms, said Jim Irvine, chairman of Buckeye Firearms Association.
"Those codes need to be the same. You can't have one city that says 'Hey, we'll make green mean 'stop' just so we can write a bunch of tickets for it."
What irks members of Clyde council is that the controversy being played out in their small town has very little to do with their residents, said Vice Mayor Steve Keegan, who has lived his entire life in Clyde.
"Not one person in this town has come up to me and said, 'I want to carry a gun into the park," he said.
In Columbus, Attorney General Jim Petro is watching both cases closely.
Already, his office has intervened in the Clyde case, arguing that the state law should be applied uniformly.
Attorney general spokesman Bob Beasley said Mr. Petro's staff is monitoring the Toledo case, but has not decided whether to file briefs in Mr. Beatty's support.
It's not surprising that some Ohio municipalities might try to pass their own rules regarding concealed carry, said University of Toledo communications professor Brian Anse Patrick, who has been studying the lobbying efforts that helped pass concealed- carry laws in more than 40 states.
Most states had similar "test cases" from smaller governments wanting to pass their own concealed-carry regulations.
Though cities might win local decisions from time to time, they usually lose their arguments in higher courts.
"There may be some exceptions to that here and there," he said.
"It comes down to the state law. [Concealed-carry proponents] have it on their side," he said.
John Gotherman, general counsel for the Ohio Municipal League, is not so convinced of the outcome.
"The argument will center on two areas, I would suppose. Is this a matter of self-government? If so - and I think it is - is this a police regulation that is in conflict with a state law?
"It may be at the court of appeals before we find out, and maybe even to the [Ohio] Supreme Court."
Contact Robin Erb at:
robinerb@theblade.com
or 419-724-6133.