Jump to content

Weber v OH - Level of judicial review for 2A


Euler
 Share

Recommended Posts

Docket

What is the proper standard of constitutional review of a law that impacts the core value of the Second Amendment -- possession and use of a firearm within the home?

...

As exemplified by the Ohio Supreme Court opinion below (wherein the dissent specifically expressed the need for this Court's guidance), courts are looking for "much-needed clarity on how to approach a challenge to a law or regulation under Second Amendment."

...

The case arose when Weber's wife called 911 at approximately 4:00 am on February 17, 2018. She reported that Weber was in possession of a firearm and intoxicated. Officers were dispatched to investigate. When they arrived, Weber's wife told them "everything was alright," and he had put the gun away. ... Officers nonetheless entered the house and saw Weber holding a shotgun, barrel pointing downward. ... He told them the gun was unloaded, and Officers took it from him without incident. ... They confirmed it was not loaded, and there was no ammunition in sight. Officers observed (and evidence confirmed) that Weber was intoxicated from alcohol.

 

Weber was charged with Using a Weapon While Intoxicated under Section 2923.15 of the Ohio Revised Code, a misdemeanor offense carrying a possible penalty of six months in jail and a $1000.00 fine. The matter proceeded to trial before a judge in the Clermont County Municipal Court, located in Batavia, Ohio. Weber argued at trial that there was insufficient evidence to convict him and that Section 2923.15 of the Ohio Revised Code (as applied in this case) violated his individual right to bear arms under the Second Amendment as established in District of Columbia et al. v. Heller, .... The trial court disagreed, declined to declare the statute unconstitutional, and convicted Weber of the charged offense. ... The court imposed a ten-day suspended sentence, placed Weber on community control (probation), and imposed a $100.00 fine.

...

Weber timely sought discretionary review by the Ohio Supreme Court. The court accepted jurisdiction to decide whether Ohio's law violated the Second Amendment, whether strict scrutiny was the proper standard of review, and whether any standard of scrutiny would permit a prohibition of having firearms while intoxicated in the home "where defense of self, family and property is most acute." ...

 

In a split decision (4-3), the Ohio Supreme Court affirmed Weber's conviction, holding that Ohio's law did not violate the Second Amendment. Relying on Heller ... the court generally agreed that the core protection of the Second Amendment was defense of "hearth and home." But there was disagreement regarding the analytical framework and the proper standard of review.

...

(A) No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance.

 

(B) Whoever violates this section is guilty of using weapons while intoxicated, a misdemeanor of the first degree.

Independent of the facts of the case, the question is the level of scrutiny that should be applied to firearm laws. I'm not convinced even strict scrutiny is going to help Weber. ("People under the influence of an intoxicant and in possession of a firearm" seems pretty narrowly tailored to me. Whether you like the law is a separate matter.)

 

... but it's a chance to get an answer to the question.

Edited by Euler
Link to comment
Share on other sites

Interesting, what other codified right can be denied when claimed intoxicated inside your house?

 

Would passing a law making it a crime to say attend church or attend a free speech rally intoxicated pass scrutiny, would denying people the right to vote when intoxicated pass scutiny?

 

 

 

"People under the influence of an intoxicant and in possession of a firearm" seems pretty narrowly tailored to me.

 

I beg to differ "No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance." doesn't define a threshold to meet the definition "under the influence" thus it's vague at best, IMO. There are detectable amounts of alcohol in urine for up to 80 hours, at what point after consuming alcohol are you no longer "under the influence" as codified in that specific law, do you have to wait 4 days after drinking a beer, or 24 hours or 4 hours, who knows as no limit is established? What is interesting is they do actually define that hard limit when in possesion of a firearm inside a vehicle (Section 2923.16 | Improperly handling firearms in a motor vehicle), but no such threshold is set in the generic law he was actually charged under and IMO that makes the law vague and moot.

Link to comment
Share on other sites

... "No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance." doesn't define a threshold to meet the definition "under the influence" thus it's vague at best, IMO. ...

Courts, in most cases, use the vehicle standard. I suspect OH does, as well.

Link to comment
Share on other sites

 

... "No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance." doesn't define a threshold to meet the definition "under the influence" thus it's vague at best, IMO. ...

Courts, in most cases, use the vehicle standard. I suspect OH does, as well.

 

 

Most states codify to use the vehicular code threshold, this law does not even though other OH laws do, this particular law is silent on what standard to use makes it vague, you can't just assemble laws a la carte from other laws. If you read the Appellate court paperwork the court chose to apply case law defintions of "under the influence" because the law was silent on the defintion, I personally find that logic flawed. Albeit it's a bad defense in this particular case because he admitted to the police he was intoxicated and drunk that self admission removed the burden of proof on the state to prove he was intoxicated/drunk.

Link to comment
Share on other sites

So did he threaten her with the gun? If not, she had to understand the consequences of calling the police right? Or are they having some sort of marital issue where she's determined to wreck him? Seems malicious on her part. Or maybe she's just stupid. I guess never attribute to malice what can be attributed to stupidity.

 

I guess we can ignore that she told the police everything was fine and they entered anyway and just skip to the intent of the law as written. Someone already questioned how they're defining intoxicated by I'm questioning the "carry or use any firearm". Does being in possession of an unloaded shotgun in your own home actually constitute "carry or use"? That seems like a stretch to me, intoxicated or not. That notwithstanding, this guy could have been sitting on his couch in his boxers drinking his six pack of Natty Ice watching the Beverly Hillbillies or whatever it is people in Ohio do when someone kicks in his door looking to score some crank or whatever it is people in Ohio do and Weber could have yeeted this fool and still been charged the same.

Link to comment
Share on other sites

  • 4 months later...

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
 Share

  • Recently Browsing   0 members

    • No registered users viewing this page.
×
×
  • Create New...