The second amendment to the United States Constitution guarantees the right for citizens to keep and bear arms. This amendment is highly debated, argued over, and often used as a headline to spark debate during election season. While the right to bear arms is sacred to so many people, that right is not absolute. The Supreme Court of the United States and the Ohio Supreme Court have held that “there is no absolute constitutional right of an individua to possess a firearm.” State v. Fant§ 53 Ohio App. 2d 87, 90, 7 Ohio Op. 3d 58, 371 N.E.2d 588, 590 (citing United States v. Miller, 307 U.S. 174, 59 S. Ct. 816 (1939).
Under state and federal law, there are certain disqualifiers that prohibit individuals from owning or possessing a firearm. Under Ohio law, an individual who has been convicted of a felony crime of violence or felony drug offense cannot purchase, own, or possess a firearm. Under federal law, a misdemeanor domestic violence conviction under Revised Code §2919.25 disqualifies someone from purchasing, owning, or possessing a gun. If a person falls into one of these categories, they are said to be under a disability. This disability makes possessing a weapon a felony offense.
Ohio Revised Code §2923.13 outlines Ohio’s Weapons Under Disability Statute. The law states that a violation of this section is a third-degree felony, punishable by up to three (3) years in prison and a $10,000 fine. §2923.13 states that a person is under a disability and unable to possess a firearm if that individual is: 1) A fugitive from justice; 2) Is under indictment for or has been convicted of any felony offense of violence; 3) Is under indictment for or has been convicted of certain felony drug offenses; 4) Has a drug dependency or chronic alcoholism; or 5) Is mentally incompetent.
Recently, Ohio courts have examined what it means to be under indictment and how that impacts an individual’s ability to possess a firearm. A person under indictment for a felony offense of violence or certain drug offenses is not permitted to carry a firearm. The Supreme Court of Ohio has held that regardless of whether a trial is held, the person is acquitted, or even whether the charges are ultimately dismissed, simply being under an indictment creates that disability. However, the timing of that indictment for weapons under disability and when the alleged possession of a firearm occurred is important.
In State v. Moore (Case No.: B2002019, Hamilton County), the defendant was charged with two counts of aggravated robbery (ORC §2911.01) and two counts of robbery (ORC §2911.02). While those charges were pending, the prosecutor’s office added the charge of weapons under disability in violation of ORC §2923.13(A)(2). The prosecutor’s office argued that the defendant’s disabling condition was that he possessed a gun in the incident that led to his original four count indictment. Prior to the B2002019 case, the defendant had no disabling offense. The ultimate question before the court was whether an individual could be charged with weapons under disability stemming from the underlying facts from which a person was charged. With Moore, did the fact that the defendant had a gun during the alleged robbery mean that he was under a disability? The court held that it did not.
Upon motion from the defendant, Hamilton County Judge Christian A. Jenkins dismissed the weapons under disability charge stating that the defendant was not yet under a disability. In making his decision, Judge Jenkins cited directly to the 2022 Supreme Court case of N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). The court emphasized that the weapons under disability statute applies to convicted felons or when someone is carrying a firearm while under an indictment. The court was clear that a weapons under disability charge cannot stem from the underlying felony. The court held that if allowed to stand, this would violate an individual’s second amendment right to keep and bear arms.
Evaluating every aspect of a criminal case is essential when you are charged with any crime. When you are charged with a felony and facing time in prison, a consultation with an attorney will ensure that every last detail of your case is constitutional, and your rights are protected. Like in Moore, it could be the timing of a charge or a technicality that makes the difference between conviction and dismissal. If you are in need of a criminal attorney, we at Rittgers Rittgers & Nakajima have an entire team of experienced defense attorneys. Our consultations are free and we can walk you through your case and evaluate each allegation against you. Call us 24 hours a day at 513-496-0134.