David N. Mayer: Time to ease Ohio's gun-carry law

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David N. Mayer: Time to ease Ohio's gun-carry lawMonday, January 14, 2002David N. MayerHamilton County Common Pleas Judge Robert P. Ruehlman's Thursday ruling (now stayed, pending appeal), which struck down as unconstitutional Ohio's ban on concealed firearms, should prompt the General Assembly to guarantee all Ohioans' right to carry guns in self-defense. Such a guarantee is required by the Ohio Constitution, as Ruehlman's well-reasoned ruling demonstrates, and is good public policy. Ruehlman's decision came in a case where the facts convincingly demonstrate the folly of Ohio law. The three plaintiffs included two businessmen who drive food-delivery trucks and, therefore, also carry large amounts of cash in high-crime areas of Cincinnati, and a licensed private investigator who also is a certified instructor in firearms and self-defense. Each had a valid reason to carry concealed firearms for defense. All are law-abiding, in the legal sense of the term, meaning that they are not otherwise prohibited by federal, state or local law from possessing firearms. Yet, under Ohio law that prohibits all persons except state or federal law-enforcement officers from carrying a concealed weapon or having a loaded weapon in cars, each of them could be arrested, indicted and tried for a felony carrying a maximum sentence of more than a year in prison. Ohio law does permit people to raise the defense that they need to carry a concealed weapon for self-protection related to their jobs, but they bear the burden of proving this at trial. Thus, for all practical purposes, private citizens in Ohio are powerless to defend themselves by carrying concealed weapons without risking trial and possible imprisonment simply for doing what the Ohio Constitution explicitly guarantees. Article I, Section 4 of the Constitution affirms the right of Ohioans "to bear arms for their defense and security.'' This provision, which dates to the original 1802 state constitution, is far more explicit than the Second Amendment to the United States Constitution in guaranteeing an individual's right to carry firearms in self- defense. The framers of Ohio's constitution regarded this as a natural right retained by citizens. Like other fundamental rights, such as freedom of religion or speech, it ought not require the license of government for its exercise; it may be forfeited only if it is abused, for example, by using a firearm to commit a crime. As the judge found, without the ability to lawfully carry concealed firearms, the right to carry weapons for one's defense and security is meaningless. The law-enforcement officials who testified agreed that any citizen walking down the street with an unconcealed firearm would be stopped by the police, detained, and probably charged with inducing panic or disorderly conduct. The only way to truly guarantee the constitutional right -- to ensure that it is a right that exists not just theoretically, on paper, but also in the real world -- is to permit law- abiding citizens to carry concealed weapons. As Ruehlman also convincingly found, Ohio law violates other constitutional provisions. Because it effectively limits the right to carry concealed weapons to government employees, the law is "arbitrary and unreasonable'' in not granting the same right to similarly situated law- abiding private citizens. Therefore, the prohibition on concealed weapons also violates the provisions of the Ohio Constitution guaranteeing due process and equal protection. Although Ohio's constitution is one of the most explicit in guaranteeing an individual's right to carry firearms in self-defense, Ohio falls far behind other states in actually guaranteeing this right. Indeed, Ohio's law is perhaps the most repressive in the nation. Forty-three states specifically allow the carrying of concealed firearms with a license or permit; Vermont allows concealed carry without any license. Of the six remaining states, Ohio is unique in requiring citizens to bear the burden of proving an affirmative defense. Although gun-control advocates frequently raise emotional arguments in opposition to concealed-carry rights -- typically, they suggest a Wild West scenario of increased gun violence -- their fantasies are belied by the facts. In support of his ruling, Ruehlman cited a study by David Mustard, an assistant professor of economics at the University of Georgia, and John Lott, a senior research fellow at the Yale University Law School, which is the best, most recent and comprehensive study of crime data showing the impact of allowing law-abiding citizens to carry concealed firearms. The Lott-Mustard findings, published in the Journal of Legal Studies, showed that serious and violent crimes against people were reduced by between 2 percent and 10 percent in states enacting "shall-issue'' permit laws. Moreover, the study found no effect on accidental shootings. Allowing law-abiding citizens to carry concealed firearms reduces crime and makes society safer. No credible study has refuted the Lott- Mustard findings. Notwithstanding this, anti- gun fanatics and certain law-enforcement officials who benefit from their monopoly on the right to carry concealed weapons continue to lobby the General Assembly and the governor to maintain Ohio's existing law. Fortunately, the legislature is poised to enact legislation that will bring Ohio in line with its own constitution and sound public policy. Legislators should approve a bill guaranteeing the right of law-abiding Ohioans to carry concealed weapons, and Gov. Bob Taft should sign it into law. David N. Mayer is a professor of law and history at Capital University Law School. http://www.dispatch.com/editorials-story.php?story=dispatch/news/editorials02/jan02/1031385.html