No, according to the 12th District Court of Appeals-even if the weapon is unloaded. But that decision has been appealed to the Ohio Supreme Court, which heard oral arguments on the issue yesterday.
The case originated in Clermont County two years ago, when a deputy and a sergeant from the Clermont County Sheriff’s Office were dispatched to Frederick Weber’s home after his wife called 911. She reported her husband was intoxicated and holding his shotgun. Notably, there was no evidence Frederick was threatening anyone, about to harm anyone or fire the gun, or that a crime had been or was about to be committed. In fact, when the police arrived at the Weber home, Frederick’s wife advised them everything was fine and Frederick put the gun away.
When officers entered the home with the wife’s permission, the officers saw Frederick holding his shotgun by the stock with the barrel pointed down to the ground. Frederick advised the officers the gun was unloaded and that he was unloading it to wipe it down. The officers took possession of the gun, confirming it was unloaded and did not find any ammunition.
Additionally, the officers said Frederick was “very impaired” and “highly intoxicated.” According to them, Frederick’s speech was slurred, his eyes were bloodshot and glassy, he was unsteady on his feet, and he smelled like alcohol. Further, he was unable to complete a field sobriety test because he could not follow directions, he was swaying, and he admitted several times he was drunk.
The police charged Frederick with using weapons while intoxicated in violation of R.C. Section 2923.15. Ultimately, Frederick was found guilty and convicted of the offense and Frederick, through his attorney, appealed the conviction to the 12th District Court of Appeals who upheld the conviction. It has now made its way to the Ohio Supreme Court.
Using Weapons While Intoxicated Statute: Ohio Revised Code Section 2923.15
Ohio law states: “No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance.”
The offense is a first degree misdemeanor, meaning it is punishable by up to a maximum 180 days in jail and a maximum $1,000 fine. There are no mandatory penalties associated with the offense.
Arguments and the 12th District Court of Appeals’ Decision
Frederick argued he should not have been found guilty for two reasons: 1) there was no evidence presented by the prosecutor at the trial showing he was holding or using the shotgun as a firearm or was committing a crime with it; and 2) the statute is unconstitutional as it violates his second amendment right to keep and bear arms in his home.
The 12th District Court of Appeals addressed both of his arguments. The decision can be found here in its entirety. Honorable Judge Michael Powell wrote the decision.
In summary, the Court stuck down Frederick’s first argument rather quickly. It pointed out the statute does not require the State to prove the individual possessing the gun is using it as a firearm or committing a crime. The fact he was not violent with the gun was a red herring. The fact he was possessing it alone was enough to violate the statute. Further, the fact the gun was unloaded was irrelevant. Further, the definition of “firearm” under Ohio law includes unloaded guns that are inoperable but that can readily be rendered operable.
In addressing his second argument, the Court cited a litany of United States Supreme Court and Ohio Supreme Court decisions. In referencing these decisions, the Court essentially held and reiterated the 2nd Amendment’s right to bear arms is not an absolute right and may be reasonably limited in furtherance of valid public safety interests.
Additionally, the Court noted the statute does no prohibit the use or carrying of any firearms, but simply regulates the manner in which they are handled. The Court held the government has a strong compelling interest in maintaining public safety and preventing gun violence, which is what this statute does.
The Court further emphasized the statute is narrowly tailored to serve this compelling government interest of public safety-and the reason it is narrowly tailored is because it leaves open alternate means of exercising the fundamental right to bear arms. In other words, the limitation the statute creates is only temporary and exists only when the person is intoxicated; the limitation extinguishes once the person becomes sober. Further, the limitation never applies when the disability is avoided-such as when the person does not drink to the point of intoxication in the first instance.
Both, the United States Supreme Court and the Ohio Supreme Court have historically held reasonable regulations on firearms are appropriate to further serious public safety interests. It will be no surprise if the Ohio Supreme Court upholds the decision of the 12th District Court of Appeals. The decision is expected to be released within the next few months.