Thursday, September 25, 2003

Concealed-carry ban upheld

Plaintiffs consider appeal to federal court

By Dan Horn and Sharon Coolidge
The Cincinnati Enquirer

[IMAGE] Vernon Ferrier poses with his handgun, legally exposed, at Headlines, the Hyde Park salon.
(Gary Landers photo)
| ZOOM |
The Ohio Supreme Court upheld the state's 144-year-old ban on carrying concealed weapons Wednesday, ruling that the law does not infringe on the constitutional right to bear arms.

The 5-2 decision sets the stage for a new round of legal and political wrangling over an issue that has divided the state's judges and lawmakers for more than three years.

Some legislators renewed calls for a less-restrictive concealed-carry law, while the four Cincinnatians who challenged the law said they would consider appealing the state court's decision to the U.S. Supreme Court.

The decision Wednesday reversed the rulings of two lower courts and affirmed the right of the legislature to pass laws restricting how and where firearms are carried.

"It's my personal position that the legislature ought to be the entity to deal with this," said Hamilton County Prosecutor Mike Allen. "There is a law pending, it's reasonable, provides for periodic qualifications and stringent background checks. That's something most law enforcement could live with."

The decision also ensured that, for the immediate future, Ohio would remain one of only five states in the country that bars citizens from carrying hidden guns.

"However fundamental and entrenched in the constitutional heritage of our state, the right to bear arms is not absolute," Justice Paul Pfeifer wrote in his majority opinion. "There is no constitutional right to bear concealed weapons."

Pfeifer and the other justices in the majority concluded that limits on carrying concealed weapons are constitutional as long as those limits help to maintain "an orderly and safe society."

J. Rita McNeil, Cincinnati City solicitor, said the decision "is consistent with our mission to make Cincinnati a clean and safe environment."

The two dissenting justices, Maureen O'Connor and Evelyn Lundberg Stratton, argued that the law is an improper and unnecessary restriction on a constitutional right.

The ruling stunned opponents of the law. They had hoped their three-year fight over concealed carry would either spur the legislature to pass a new law or the courts to throw out the old one, which has been on the books in some form since 1859.

"This is crazy," said Chuck Klein, a private investigator in Cincinnati who was among the four plaintiffs who sued in 2000 for the right to carry concealed guns for protection.

"This decision doesn't make any sense," he said. "It's against the weight of the evidence and it's against the constitution."

Klein and the other plaintiffs - a hairdresser, a personal trainer and a pizza delivery man - had proposed that the ban on carrying concealed weapons be replaced with a new law that would allow licensed carriers to have hidden guns.

They complain that the court's decision leaves the state with a total ban on concealed carry but no restrictions on people who carry guns in the open.

Their theory could be put to the test Sunday when advocates of a new law gather on Florida Avenue in Cincinnati for a protest march. The protesters intend to march with holstered guns in public view.

Vernon Ferrier, the Hyde Park hairdresser who joined the lawsuit three years ago, said the goal of the walk is to draw attention to the need for a new concealed carry law.

He concedes that carrying guns in the open is "a bad idea," but he said the march is the only way to drive that point home to the legislators who have the power to change the law.

Although the existing law effectively bans concealed weapons, it does contain a clause that allows people to carry a hidden weapon if they can prove they need it for self-defense.

The problem, critics say, is that this "affirmative defense" clause requires people to first get arrested for breaking the law before they can go to court to prove why they did nothing wrong.

"It's a joke," said Alan Gottlieb, founder of the Second Amendment Foundation, the group that paid the plaintiffs' legal fees in the Ohio case.

"To argue there is no problem here is putting your head in the sand," he said.

Tim Smith, the lawyer who represented the four plaintiffs, said the affirmative defense clause raises constitutional issues that might help get the case to the U.S. Supreme Court. He said he will decide within the next three months whether to launch a federal appeal.

Proponents of concealed-carry laws said the court's decision Wednesday made sense because it didn't say the law couldn't be changed, only that the legislature has the right to put some limits on how firearms are carried.

Some law enforcement officials also praised the ruling but said the legislature needs to change the law. Hamilton County Prosecutor Mike Allen said he favors a system that would allow properly licensed and trained individuals to carry a concealed weapon.

But the state legislature has so far been unable to reach consensus on a new law.

A 1995 Senate bill never made it out of the House, and another attempt last year failed when the Senate and House could not agree on a compromise bill. Gov. Bob Taft has said he will not support any bill unless it's backed by police groups.

So far, most of those groups have either opposed a change or have remained neutral.

After the court's ruling Wednesday, Senate President Doug White, R-Manchester, again called for lawmakers to work out their differences and approve a new law.

Smith, however, is not optimistic. He said the lawsuit - and the possibility the Supreme Court might throw out the law altogether - was the driving force behind efforts to make a change.

With the threat of legal action gone, Smith said, there is less pressure for a new law.

"If we had won, there would have been more pressure on them," Smith said. "This is not just a legal issue, it's a political issue."

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