Arnold v. City of Cleveland

616 N.E.2d 163, 67 Ohio St. 3d 35, 1993 Ohio LEXIS 1608
CourtOhio Supreme Court
DecidedAugust 11, 1993
DocketNo. 92-105
StatusPublished
Cited by274 cases

This text of 616 N.E.2d 163 (Arnold v. City of Cleveland) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arnold v. City of Cleveland, 616 N.E.2d 163, 67 Ohio St. 3d 35, 1993 Ohio LEXIS 1608 (Ohio 1993).

Opinions

Douglas, J.

The underlying issue in this appeal concerns the constitutionality of an ordinance which bans the possession and sale of “assault weapons” in the city of Cleveland. Appellants challenge this legislation on essentially two grounds. First, appellants contend that the ordinance is an overbroad restriction on their constitutional right to bear arms and defend themselves and, thus, is in violation of Sections 1 and 4, Article I of the Ohio Constitution. Second, appellants maintain that the ordinance violates the Supremacy Clause of the federal Constitution.

I

A

Presumption of Constitutionality

In determining the constitutionality of an ordinance, we are mindful of the fundamental principle requiring courts to presume the constitutionality of lawfully enacted legislation. Univ. Hts. v. O’Leary (1981), 68 Ohio St.2d 130, 135, 22 O.O.3d 372, 375, 429 N.E.2d 148, 152; and Hilton v. Toledo (1980), 62 Ohio St.2d 394, 396, 16 O.O.3d 430, 431, 405 N.E.2d 1047, 1049. Further, the legislation [39]*39being challenged will not be invalidated unless the challenger establishes that it is unconstitutional beyond a reasonable doubt. Id. See, also, Hale v. Columbus (1990), 63 Ohio App.3d 368, 372, 578 N.E.2d 881, 883.

B

State and Federal Constitutions

Section 4, Article I of the Ohio Constitution provides that:

“The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.”

Appellants maintain that the ordinance violates Section 4, Article I of the Ohio Constitution.4 Specifically, appellants urge that the ordinance acts to deny them the fundamental “individual” right to bear arms and defend themselves. Appellants’ argument places at issue the scope of Section 4, Article I, which has not been previously considered by this court.

The question as to whether individuals have a fundamental right to bear arms has, seemingly, been decided in the negative under the Second Amendment to the United States Constitution.5 See, generally, United States v. Cruikshank (1876), 92 U.S. 542, 553, 23 L.Ed. 588, 591-592; Presser v. Illinois (1886), 116 U.S. 252, 264-265, 6 S.Ct. 580, 584, 29 L.Ed. 615, 618-619; and United States v. Miller (1939), 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206. See, also, Quilici v. Village of Morton Grove (C.A.7, 1982), 695 F.2d 261, 269, certiorari denied (1983), 464 U.S. 863, 104 S.Ct. 194, 78 L.Ed.2d 170; Rabbitt v. Leonard (1979), 36 Conn.Supp. 108, 110, 413 A.2d 489, 490; Commonwealth v. Davis (1976), 369 Mass. 886, 890, 343 N.E.2d 847, 850; and E. Cleveland v. Scales (1983), 10 Ohio App.3d 25, 28-29, 10 OBR 32, 35-36, 460 N.E.2d 1126, 1130-1131.

In Presser, supra, the United States Supreme Court considered a claim that an Illinois statute, which forbade men to associate together as military organizations or to drill or parade with arms in public without authorization, violated the Second Amendment. Relying on Cruikshank, supra, the court rejected that claim and reasoned that:

[40]*40“We think it clear that the sections under consideration * * * do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States. It was so held by this court in the case of United States v. Cruikshank, 92 U.S. 542, 553 [23 L.Ed. 588, 591-592], * * * that the right of the people to keep and bear arms ‘is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in The City of New York v. Miln, 11 Pet. [102] 139 [9 L.Ed. 648], “the powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,” “not surrendered or restrained” by the Constitution of the United States.’ ” (Emphasis added.) Presser, supra, 116 U.S. at 264-265, 6 S.Ct. at 584, 29 L.Ed. at 618-619.

Subsequently, in Miller, supra, the court considered the scope of the Second Amendment. Miller involved a federal Act which prohibited the transportation in interstate commerce of unregistered shotguns having barrels less than eighteen inches in length. The court disagreed with the defendants’ argument that the federal restriction violated the Second Amendment. The court determined that the defendants failed to prove at trial that an eighteen-inch barrel shotgun had any “reasonable relationship to the preservation or efficiency of a well regulated militia * * *.” Id., 307 U.S. at 178, 59 S.Ct. at 818, 83 L.Ed. at 1209.

The court, in reaching that determination, put the Second Amendment into perspective and observed that:

“The Constitution as originally adopted granted to the Congress powér — ‘To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.’ With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” (Emphasis added.) Id., 307 U.S. at 178, 59 S.Ct. at 818, 83 L.Ed. at 1209.

[41]*41The vast majority of decisions which have considered the Second Amendment convey that this amendment is applicable to the federal government. These decisions signify, and history supports the position, that the amendment was drafted not with the primary purpose of guaranteeing the rights of individuals to keep and bear arms but, rather, to allow Americans to possess arms to ensure the preservation of a militia.6 This view has been stated by some courts and legal scholars to be a “collective” right as opposed to an “individual” concept.7

We note that the Second Amendment has not yet been held to be applicable to the states. The amendment has not been absorbed either directly or through selective incorporation in the Fourteenth Amendment. See

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Dixon
2022 Ohio 4532 (Ohio Court of Appeals, 2022)
State v. Johnson
2020 Ohio 6807 (Ohio Court of Appeals, 2020)
State v. Smith (Slip Opinion)
2020 Ohio 4441 (Ohio Supreme Court, 2020)
State v. Benson
2019 Ohio 3234 (Ohio Court of Appeals, 2019)
Hamilton v. Premier Auto Mart, Inc.
2019 Ohio 2493 (Ohio Court of Appeals, 2019)
State v. Weber
2019 Ohio 916 (Ohio Court of Appeals, 2019)
STOLZ v. J & B STEEL ERECTORS, INC., Et Al.
2018 Ohio 5088 (Ohio Supreme Court, 2018)
State v. Russell
2018 Ohio 4524 (Ohio Court of Appeals, 2018)
State v. Ireland (Slip Opinion)
2018 Ohio 4494 (Ohio Supreme Court, 2018)
State v. Dibble
2017 Ohio 9321 (Ohio Court of Appeals, 2017)
State v. Roby
2017 Ohio 7331 (Ohio Court of Appeals, 2017)
State v. Fisher
2017 Ohio 7260 (Ohio Court of Appeals, 2017)
State v. Broom (Slip Opinion)
2016 Ohio 1028 (Ohio Supreme Court, 2016)
Stephen Kolbe v. Lawrence Hogan, Jr.
813 F.3d 160 (Fourth Circuit, 2016)
Haight v. Cheap Escape Co.
2014 Ohio 2447 (Ohio Court of Appeals, 2014)
Cleveland v. McCardle (Slip Opinion)
2014 Ohio 2140 (Ohio Supreme Court, 2014)
State v. Cook
2013 Ohio 2014 (Ohio Court of Appeals, 2013)
State v. Rush
2012 Ohio 5919 (Ohio Court of Appeals, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
616 N.E.2d 163, 67 Ohio St. 3d 35, 1993 Ohio LEXIS 1608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arnold-v-city-of-cleveland-ohio-1993.