[Cite as State v. Riffee, 2025-Ohio-4886.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-240535 TRIAL NO. 23/CRB/15255/A Plaintiff-Appellant, :
vs. : JUDGMENT ENTRY BENJAMIN RIFFEE, :
Defendant-Appellee. :
This cause was heard upon the appeal, the record, the briefs, and arguments. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is reversed and the cause is remanded. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.
To the clerk: Enter upon the journal of the court on 10/24/2025 per order of the court.
By:_______________________ Administrative Judge IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-240535 TRIAL NO. 23/CRB/15255/A Plaintiff-Appellant, :
vs. : OPINION BENJAMIN RIFFEE, :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: October 24, 2025
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Victoria Gooder, Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellee. Per Curiam.
{¶1} Since 1974, Ohio law has prohibited an intoxicated individual from
using or handling a firearm. This prohibition seems to make sense. Driving cars,
handling chainsaws, and wielding deadly weapons all seem to be activities that are
best performed while sober. However, only one of these dangerous activities concerns
a constitutional right. So, things become a bit more complicated when it comes to laws
restricting the use of firearms.
{¶2} The right to bear arms is a right granted to us by the United States
Constitution, same as the right to speak freely, be free from unreasonable searches,
and refuse to provide free lodging to soldiers. And if a law restricts one of these
constitutionally-protected rights and that law is challenged, it becomes this court’s job
to make sure those constitutional rights are protected. This case presents one such
challenge. This principle goes back aways, is fundamental to our democracy, and is
ingrained in the history and traditions of this country. Marbury v. Madison, 5 U.S.
137, 177 (1803) (“It is emphatically the province and duty of the judicial department to
say what the law is.”).
{¶3} After remaining unchanged and in force for almost 50 years, Ohio’s law
prohibiting the drunken use of a gun, codified at R.C. 2923.15, is being challenged in
this case as unconstitutional under both our federal and state Constitutions. To
address this question, we must follow the mandate of the U.S. Supreme Court and
complete a review of historical legal authority to determine if a law restricting the use
of a firearm by someone who is intoxicated is consistent with the history and traditions
of our great Nation.
{¶4} After completing its thorough review of the history and traditions of our
Nation, the trial court below concluded that Ohio’s ban on handling a firearm while OHIO FIRST DISTRICT COURT OF APPEALS
intoxicated, contained in R.C. 2923.15, lacked a historical analogue that applied a
similar prohibition on an individual’s right to carry a firearm, specifically, while
intoxicated in their home.
{¶5} While we ultimately disagree with the trial court’s conclusion, we do not
disagree with its methodology. From our review, it would appear that the trial court
followed the requirements set forth in New York State Rifle & Pistol Assn. v. Bruen,
597 U.S. 1 (2022). What may be troubling to some is that by following the decisional
framework adopted in Bruen and its progeny, it is possible to reach the conclusion that
in adopting the Second Amendment, the Founders intended to ensure that the gun
rights of the intoxicated shall not be infringed.
{¶6} As set forth below, we conclude that the State’s prohibition against
handling a firearm while intoxicated is indeed consistent with the history and
traditions of gun regulation in this country and is therefore constitutional under both
our federal and state Constitutions. Thus, it would appear that, here, history and good
sense have found common ground.
I. Factual and Procedural History
{¶7} On September 1, 2023, a complaint was filed in municipal court alleging
that on August 31, 2023, Cincinnati police arrested defendant-appellee Benjamin
Riffee at his home for carrying a .45-caliber handgun while intoxicated, in violation of
R.C. 2923.15. The charging statute, “Using Weapons While Intoxicated,” provides that
no person “while under the influence of alcohol or any drug of abuse shall carry or use
any firearm or dangerous ordnance.”
{¶8} On March 8, 2024, Riffee moved to dismiss the case. Riffee alleged that
R.C. 2923.15 violated both the Second and Fourteenth Amendments to the U.S.
Constitution, as well as Article 1, Section 4 of the Ohio Constitution.
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} In advance of oral arguments on Riffee’s motion, the parties stipulated
to the following facts:
[A]t approximately 10:51 p.m., Cincinnati Police Department
dispatched officers to the vicinity of 503 Woodlawn Ave based upon a
Shot Spotter notification and a 9-1-1 call alleging a single shot fired from
a second-floor balcony behind a recently remodeled house. When
officers arrived, they encountered Mr. Riffee in his home. Mr. Riffee
appeared intoxicated. Mr. Riffee relinquished control of the firearm at
11:57 p.m. He was taken into custody at 12:05 a.m.[,] September 1,
around an hour after dispatch.
The stipulated facts made no reference to whether or not Riffee was alone in the home.
{¶10} On September 6, 2024, the court granted Riffee’s motion to dismiss.
Specifically, the court granted Riffee’s motion with respect to his as-applied challenge
to the U.S. Constitution, and to the facial challenge to the Ohio Constitution.
{¶11} On September 20, 2024, the State filed this appeal.
II. Analysis
{¶12} On appeal, the State raises two assignments of error challenging the
lower court’s conclusion that R.C. 2923.15 violates the U.S. and Ohio Constitutions.
For the reasons set forth below, both assignments of error are meritorious.
A. As-Applied Challenge to the U.S. Constitution
{¶13} Where a trial court dismisses an indictment for purely legal reasons, we
review its decision de novo. State v. Thacker, 2024-Ohio-5835, ¶ 7 (1st Dist.).
However, statutes enjoy a strong presumption of constitutionality that may be
rebutted only by the challenging party proving, beyond a reasonable doubt, that the
statute in question is unconstitutional. Klein v. Leis, 2003-Ohio-4779, ¶ 4. “[D]oubts
5 OHIO FIRST DISTRICT COURT OF APPEALS
regarding the validity of a statute are to be resolved in favor of the statute.” State v.
Grevious, 2022-Ohio-4361, ¶ 9.
{¶14} Since Riffee raised an as-applied challenge to R.C. 2923.15 under the
U.S. Constitution, we are constrained to assess whether, based on the facts of this
particular case, Riffee’s rights were unlawfully abridged. Thacker at ¶ 7.
{¶15} The United States Supreme Court instructs that courts addressing
challenges to firearm regulations against the rights granted by the Second Amendment
to the U.S. Constitution must look to the history and traditions of this country to
determine if the modern firearm regulation “is consistent with the Nation’s historical
tradition of firearm regulation.” Bruen, 597 U.S. at 24. Rahimi, which followed Bruen,
clarifies that courts are to ask “why and how” the modern regulation burdens the right,
and then see if it imposes “similar restrictions for similar reasons” as laws at the time
of our country’s founding. United States v. Rahimi, 602 U.S. 680, 692 (2024).
1. Specific Analogues
{¶16} States across the union have historically adopted laws specifically
criminalizing intoxicated people from carrying or using firearms. This practice existed
long before the time of the founding. See Act of Sept. 4, 1632, 1632 Va.Acts 198, Act
XLIV (Virginia law, which prohibited “commanders of any plantation” from “spending
powder” while drinking); Act of Mar. 10, 1655, 1655 Va.Acts 401, Act XII (prohibited
shooting guns while drinking, except at weddings and funerals); Act of May 8, 1746,
1746 N.J.Laws 139, 140-141, § 3 (New Jersey prohibition, which stated that any soldier
who appears “in arms disguised in liquor” shall be disarmed); Act of Feb. 16, 1771, Ch.
1501, reprinted in 5 James B. Lyon, The Colonial Laws of New York from the Year
1664 to the Revolution 244, 244-245 (1894) (New York law, which criminalized
discharging firearms around New Year’s festivities because persons were often
6 OHIO FIRST DISTRICT COURT OF APPEALS
intoxicated and would terrorize the public); Act of Mar. 20, 1780, Ch. 902, § 45,
reprinted in 2 Arthur Vollmer, Military Obligation: The American Tradition, Pt. 11,
at 75, 97 (1947) (Pennsylvania law, which stated “if any non-commissioned officer or
private shall . . . be found drunk . . . he shall be disarmed . . . until the company is
dismissed.”).
{¶17} Further, laws from the 19th century confirm the pre-founding era
practices. See Act of Dec. 3, 1825, 1825 Tenn.Priv.Acts 306, Ch. 292 (Tennessee law,
which granted a locality the authority to penalize “shooting and carrying guns” while
drinking); 1844 R.I. Pub.Laws 501, 503, § 1 (Rhode Island law, which excluded
“common drunkards” from militia service); 1867 Kan.Sess.Laws 25 (Kansas law,
which prohibited any person under the influence from carrying a deadly weapon);
1878 Miss.Laws 175-76, Ch. 46, § 2-3, An Act To Prevent The Carrying Of Concealed
Weapons And For Other Purposes (Mississippi law, which criminalized the sale of
firearms to intoxicated persons).
{¶18} While Riffee is correct that the right to bear arms is most acute in the
home, Riffee’s ability to exercise that right is contingent upon, as the Supreme Court
in Dist. of Columbia v. Heller, 554 U.S. 570 (2008), noted, doing so in a responsible
manner. Id. at 635 (holding that the Second Amendment provides a “right to law-
abiding, responsible citizens to use arms in defense of hearth or home.”). Riffee’s
argument that being sequestered in his home eliminates the risk to others lacks merit.
Should an intoxicated individual, like Riffee, carry or use a firearm around the home,
a single discharge could prove lethal to Riffee, another person in the home, a neighbor,
or anyone else who happens to be down range.
{¶19} Justice DeWine’s concurrence in State v. Weber, 2020-Ohio-6832, ¶ 57-
109 (DeWine, J., concurring), helps to bolster the conclusion that this regulation
7 OHIO FIRST DISTRICT COURT OF APPEALS
aligns with our Nation’s history and traditions.
{¶20} In Weber, a pre-Bruen case also challenging R.C. 2923.15, Justice
DeWine issued an extensive concurrence canvasing the historical evidence on how and
why the State restricted persons from carrying firearms. His analysis focused upon
many of the same regulations enumerated above. See Weber at ¶ 102-104. However,
he also cited that colonial Americans long recognized that one’s ability to exercise a
protected right, like the right to vote or assemble, could be suspended while an
individual was intoxicated. Id. at ¶ 107.
{¶21} Justice DeWine also focused upon the responsibility verbiage in the
United States Supreme Court’s holding in Heller. Weber at ¶ 83, citing Heller, 554 U.S.
at 635. In likening intoxication to mental incapacitation, Justice DeWine’s analysis
concluded an intoxicated individual could not reasonably exercise their right to bear
arms. Id. at ¶ 98, citing Tyler v. Hillsdale Cty. Sheriff’s Dept., 837 F.3d 678, 705 (6th
Cir. 2016) (Batchelder, J., concurring) (noting that 18th century philosophers like
John Locke, Jean Jacques Burlamqui, and James Wilson believed that to exercise
one’s rights, one must possess reason); see Mai v. United States, 974 F.3d 1082, 1089
(9th Cir. 2020) (Bumatay, J., dissenting from the denial of rehearing en banc)
(“influential philosophers of the [founding era] understood that rights attach with the
attainment of ‘reason’ and correspondingly, the loss of rights persisted only through
the loss of reason”); United States v. Connelly, 117 F.4th 269, 280 (5th Cir. 2024),
citing Dr. Benjmain Rush, An Inquiry into the Effects of Ardent Spirits upon the
Human Body and Mind, 2 (8th Ed., Boston, James Lording 1823) (Dr. Rush, a
signatory to the Declaration of Independence, wrote that drunkenness, or the “odious
disease” was often coupled with “extravagant acts which indicate a temporary fit of
madness.”).
8 OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} Both the “how” and the “why” of R.C. 2923.15 are in alignment with
historical analogues, in that individuals may not carry or use as long as they are
intoxicated, a period the individual has complete and total dominion over—or, at least
control over whether they enter into this state. Admittedly, once having voluntarily
become intoxicated, when and in what condition an individual emerges from such a
state is much less under their control. But, having made the initial choice to become
intoxicated, one has voluntarily created a situation where they can no longer safely
handle a firearm. And, as a result, they have removed themselves from the rights and
protections provided by the Second Amendment.1 And, as long as those Second
Amendment protections are only suspended for so long as they remain in this
dangerous, intoxicated state, the restriction is constitutional. Rahimi, 602 U.S. at 702
(“An individual found by a court to pose a credible threat to the physical safety of
another may be temporarily disarmed consistent with the Second Amendment.”).
{¶23} Accordingly, the State’s first assignment of error challenging the trial
court’s conclusion that R.C. 2923.15, as-applied to Riffee, violates the Second
Amendment is sustained.
1 Of course, there are limits to the State’s ability to keep firearms out of the hands of those it
considers dangerous. A review of the history and traditions of this country reveals that there is a tradition of keeping firearms out of the hands of certain groups of people (e.g., Catholics, Protestants, Blacks, and Native Americans) that the State has deemed dangerous, a practice that is now inconsistent with the protections provided by the U.S. Constitution’s Equal Protection Clause contained in the 14th Amendment. See United States v. Griffin, 704 F.Supp.3d 851, 857 (N.D.Ill. 2023) (“This Court is disheartened by the Supreme Court’s decision to rely on an analysis of laws that existed at this nation’s founding to determine the constitutionality of modern gun regulations. Indeed, to interpret modern regulations pertaining to the critically important Second Amendment right to bear firearms for self-defense, the Supreme Court requires that this Court rely on a history and tradition of a nation that at the time would have regarded individuals, including Griffin and this Judge, as three-fifths of a person at best and property at worst.”); see also United States v. Rowson, 652 F.Supp.3d 436, 466 (S.D.N.Y. 2023) (“There is also ample evidence of colonial and revolutionary-era laws that disarmed groups of people perceived as per se dangerous, on the basis of their religious, racial, and political identities.”) (Internal citations omitted.) Fortunately, our country has moved beyond these racist and otherwise discriminatory laws, and this part of our Nation’s history and traditions of firearm regulation remains buried in amber where it belongs.
9 OHIO FIRST DISTRICT COURT OF APPEALS
B. Facial Challenge to the Ohio Constitution
{¶24} In its second assignment of error, the State challenges the trial court’s
conclusion that R.C. 2923.15 is facially unconstitutional under the Ohio Constitution.
{¶25} “A facial challenge is really just a claim that the law or policy at issue is
unconstitutional in all its applications.” Bucklew v. Precythe, 587 U.S. 119, 138 (2018).
While both the trial court and parties apply the Bruen analysis, the Ohio Supreme
Court has not yet adopted this analytical framework to the Ohio Constitution. But see
State v. Skaggs, 2024-Ohio-4781, ¶ 71 (5th Dist.) (King, J., dissenting). While we may
reasonably predict that the Ohio Supreme Court will ultimately adopt a Bruen-like
framework, the Court has yet to do so, and we are bound to follow the law as it has
currently been interpreted by our state Supreme Court.
{¶26} The current legal framework we are tasked with applying arises from
Arnold v. City of Cleveland, 67 Ohio St.3d 35 (1993). In Arnold, the Ohio Supreme
Court considered the constitutionality of a Cleveland ordinance prohibiting the
possession and sale of assault weapons. Id. at 38. The Court considered that “the right
to keep and bear arms was ‘subject to reasonable regulation’ which, under the State’s
police powers, must ‘bear a real and substantial relation’ to secure ‘the health, safety,
morals, or general welfare of the public.’” Id. at 46-47; see Klein, 2003-Ohio-4479, at
¶ 14-15 (applying the reasonable regulation framework from Arnold); State v.
Johnson, 2019-Ohio-5386, ¶ 26 (3d Dist.), quoting Arnold at 46-47. While the Court
recognized that a total ban on firearms would be unconstitutional, the Court concluded
that despite its broad scope, the ordinance was a reasonable exercise of the
municipality’s police power. Arnold at 49.
{¶27} However, the trial court’s assertion that Arnold meant that “Ohio’s
right-to-bear-arms clause provides a greater degree of protection than the United
10 OHIO FIRST DISTRICT COURT OF APPEALS
States” to the rights of gun owners may no longer be accurate. Arnold, an opinion from
1993, predates Heller, McDonald, Bruen, and Rahimi, which have drastically
broadened the protections at the federal level.
{¶28} Our sister appellate courts have opined that because “the United States
Constitution now equally protects the right of the individual to bear arms, we see no
obvious distinction between the Ohio Constitution and the United States
Constitution.” State v. King, 2024-Ohio-4585, ¶ 37 (8th Dist.), quoting State v.
Windland, 2024-Ohio-1760, ¶ 24 (5th Dist.), quoting State v. Jenkins, 2024-Ohio-
1094, ¶ 28 (5th Dist.); see State v. Jones, 2024-Ohio-2959, ¶ 22 (3d Dist.) (applying
the Jenkins position that the difference between the U.S. and Ohio Constitutions has
been eliminated).
{¶29} As a result, many courts have concluded that should a regulation survive
federal constitutional scrutiny under the Bruen framework, then it would also survive
scrutiny under the Ohio Constitution. Id. This ignores the position that other Ohio
courts “have long interpreted the arms-bearing provision in our own constitution as
distinct from the analogous federal provision.” State v. Hall, 2025-Ohio-1644, ¶ 112
(1st Dist.). Bruen did not alter the Ohio Supreme Court’s analysis of the Ohio
Constitution. Id. Because Arnold is still good law, our analysis focuses upon whether
R.C. 2923.15, on its face, is a reasonable regulation. We believe that it is.
{¶30} R.C. 2923.15 is tethered to “a real and substantial relation” to secure
“the health, safety, morals, or general welfare of the public.” Arnold, 67 Ohio St.3d at
46, quoting Cincinnati v. Correll, 141 Ohio St. 535, 549 (1943). This statute would
prohibit someone who is drunk or otherwise intoxicated from carrying a handgun
through a parade, firing a celebratory shotgun blast into the air, or any number of
other dangerous circumstances where intoxicated individuals are carrying or using a
11 OHIO FIRST DISTRICT COURT OF APPEALS
firearm. In fact, R.C. 2923.15 recognizes that the only safe way for an intoxicated
individual to handle a firearm is not to.
{¶31} Perhaps a clearer set of circumstances arises from Weber, where police
responded to a 9-1-1 call and encountered an individual carrying a shotgun around his
home. Weber, 2020-Ohio-6832, at ¶ 2. In Weber, the individual appeared “very
intoxicated,” was confused, admitted he was drunk several times to police, smelled of
alcohol, had slurred speech, glassy and bloodshot eyes, had difficulty maintaining his
balance, and could not comprehend instructions from police to take a field sobriety
test. Id. at ¶ 3-4. To state that R.C. 2923.15 is facially unconstitutional, this court would
have to conclude that regulating the conduct at the heart of Weber would be
unreasonable. We decline to do so. Therefore, R.C. 2923.15 is constitutional on its face.
{¶32} Accordingly, the State’s second assignment of error is sustained.
III. Conclusion
{¶33} Therefore, this court concludes that under both the U.S. and Ohio
Constitutions, restrictions on intoxicated individuals handling firearms during the
period of their intoxication represents a reasonable restriction of constitutional rights
that is consistent with the history and traditions of gun regulation in this state and this
country, and the challenge to the lower court’s finding is sustained.
{¶34} Accordingly, we reverse the judgment of the trial court and remand this
matter for further proceedings consistent with this opinion and the law.
Judgment reversed and cause remanded.
CROUSE, P.J., and BOCK, J., concur. MOORE, J., concurs separately.
12 OHIO FIRST DISTRICT COURT OF APPEALS
MOORE, J., concurring separately.
{¶35} While I agree with the court’s opinion in this case, I write separately to
express my view that, in certain circumstances, such as the case before us, courts could
rely upon a more general “dangerousness” analysis to more efficiently assess the
constitutionality of a disputed firearm regulation and avoid requiring busy trial courts
to have to travel back through the annals of this Nation’s history and traditions of
firearm regulations.
{¶36} Despite other changes to Ohio laws that have expanded gun rights since
the adoption of R.C. 2923.15 in 1974,2 it was only after the holdings in Bruen and its
progeny, which required courts to examine the historical record from more than two
centuries ago, that we find ourselves faced with a challenge to Ohio’s law prohibiting
handling a firearm while drunk, high, or otherwise intoxicated.
{¶37} The court below did an admirable job trudging through century-old laws
in an effort to find a historical analogue to R.C. 2923.15, a law passed by legislators of
the modern era in an effort to protect Ohioans from all the bad things that can happen
when guns are in the hands of intoxicated people.3 The trial court’s effort here is
especially impressive considering the busy docket faced by this municipal court judge.
According to the Ohio Supreme Court, in the year that the decision underlying this
2 In April 2004, Ohio’s 125th General Assembly enacted House Bill 12, which permits the issuance
of concealed-carry licenses to qualified adults. In June 2022, Ohio’s 134th General Assembly enacted Senate Bill 215, known as Ohio’s Constitutional Carry law, which granted eligible adults the right to both carry openly and carry concealed without acquiring a license. 3 The belief that firearms and alcohol don’t mix is not only consistent with our country’s history and
traditions, but is a belief shared by both sides in the debate over gun rights. See NRA Family, Gun Safety & Alcohol Don’t Mix!, https://www.nrafamily.org/content/gun-safety-alcohol-don-t-mix/ (accessed Sept. 8, 2025) [https://perma.cc/WV7E-5TW5]; Everytown for Gun Safety, Guns in Bars, https://everytownresearch.org/report/guns-in-bars/ (accessed Sept. 9, 2025) [https://perma.cc/8DC3-8YRT] (“Guns and alcohol don’t mix. There is strong evidence that people under the influence of alcohol are at an elevated risk of violent behavior, including gun violence.”).
13 OHIO FIRST DISTRICT COURT OF APPEALS
appeal was issued, this particular trial judge was faced with nearly 3,000 new cases. 4
And, while the trial court below was able to undertake this effort and continue to
manage a voluminous trial docket, the wisdom and practicality of requiring busy trial
judges to have to expend such efforts whenever gun laws are challenged is much less
clear.
{¶38} As explained below, I believe the concern with dangerousness provides
a sufficient nexus between the law at issue and the history and traditions of firearm
regulations in this country. And, using such a wider lens, like a focus on dangerousness
generally, versus searching for more specific statutory analogues in the historical
record, may prove more practical and help lessen the burden on busy trial courts.
Dangerousness as an Alternative Approach
{¶39} While this dangerousness approach has yet to be specifically adopted by
any higher court, the Supreme Court’s first case interpreting Bruen clarified, “The law
must comport with the principles underlying the Second Amendment, but it need not
be a ‘dead ringer’ or a ‘historical twin.’” Rahimi, 602 U.S. at 692 (holding that an
individual found by a court to pose a credible threat to the physical safety of another
may be temporarily disarmed consistent with the Second Amendment). Importantly,
the Court in Rahimi pointed out that it was able to reach its conclusion without
undertaking an exhaustive historical analysis of the full scope of the Second
Amendment. Id. at 702.
{¶40} This court has previously explained the framework that a reviewing
court must follow when relying on the dangerousness criterion. Specifically, in
4 Supreme Court of Ohio, Municipal and County Courts, https://app.powerbi.com/view?r=ey JrIjoiYjFmY2ViZDgtNzRlOS00ZTVmLWI4MjQtMDE4NGYwNzM4ODQ0IiwidCI6IjgxNzJhOTE 0LWJmOGQtNDZkMy04YjUwLTYwOWU0ZDA0N2QxZiJ9 (accessed Sept. 8, 2025) [https://perma.cc/F2PE-3WT9] (documenting that the judge below heard 2,829 cases in 2024).
14 OHIO FIRST DISTRICT COURT OF APPEALS
Thacker, 2024-Ohio-5835 (1st Dist.), we recognized that “history and tradition[s]
includes a long-standing practice—dating back to before and during the founding era—
of legislatures disarming those they determine to be dangerous, at least for a time.” Id.
at ¶ 54. Such disarmaments based on dangerousness must focus on the danger at hand
and need to be tailored to check that danger. Id. A disarmament contingent upon
“dangerousness” of a class turns on whether (1) the group, reasonably, can be
presumed dangerous if they had a firearm, and (2) that the duration is limited to the
danger that people belonging to that class pose. Id.
{¶41} Consistent with the requirements of Bruen, our Nation’s history and
traditions demonstrate that the legislature may disarm individuals they believe are
dangerous. As this court stated in Thacker:
Indeed, all the federal and Ohio courts that have addressed this question
have found as much. [United States v.] Williams, 113 F.4th 637, 657 (6th
Cir. 2024) (“our nation’s history and tradition demonstrate that
Congress may disarm individuals they believe are dangerous”); [United
States v.] Jackson, 110 F.4th 1120, 1128 (“Legislatures historically
prohibited possession by categories of persons based on a conclusion
that the category as a whole presented an unacceptable risk of danger if
armed.”); Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J.,
dissenting) (“History is consistent with common sense: it demonstrates
that legislatures have the power to prohibit dangerous people from
possessing guns. But that power extends only to people who are
dangerous.”); Rahimi [at 700-701].
Thacker at ¶ 45.
{¶42} So, both this court and the U.S. Supreme Court have recognized the
15 OHIO FIRST DISTRICT COURT OF APPEALS
traditions allowing the State to disarm dangerous individuals. See Rahimi, 602 U.S. at
700, 702; Thacker at ¶ 54 (holding that our Nation has a “history and tradition” of
disarming individuals who pose a particular danger with a firearm).
{¶43} After conducting a detailed historical analysis in United States v.
Williams, 113 F.4th 637 (6th Cir. 2024), the Sixth Circuit Court of Appeals similarly
concluded that historical evidence from the early English kings, Parliament, common-
law-surety regimes, colonial-era regulations, and statutory law dating back to 1328
demonstrate the history and traditions of disarming individuals that were deemed
dangerous. Id. at 650-657. The Sixth Circuit concluded, the “nation’s history and
tradition[s] demonstrate Congress may disarm individuals they believe are
dangerous.” Id. at 657.
{¶44} Thus, under this more general “dangerousness” assessment, the trial
courts can be relieved of having to undertake the laborious task of performing a
historical survey of our Nation’s laws in search of the proper analogue, and instead can
move forward based on the general guidance that our Nation’s history and traditions
are consistent with laws restricting the rights of those considered dangerous to handle
a firearm during the period of their dangerousness.
{¶45} Based upon this more generalized “dangerousness” review, R.C. 2923.15
survives Riffee’s constitutional challenge. The “why” is in line with our Nation’s long-
standing traditions of addressing dangerousness. The “how” is also in line, in that an
individual is only disarmed for the period in which they are “dangerous,” which in this
case lasts as long as the individual is intoxicated. Accordingly, whether examined
under a general dangerousness analysis or under a more specific comparison to
historical regulations, R.C. 2923.15 is constitutional as applied to Riffee under the U.S.
Constitution.
16 OHIO FIRST DISTRICT COURT OF APPEALS
{¶46} These cases are not simple. And, there certainly will be cases challenging
restrictions on gun rights that are less clear than those present here. However, in those
cases where a broader focus on dangerousness is appropriate, this approach may avoid
having to send busy trial courts through the annals of our Nation’s history and
traditions of firearm regulation each time some drunkard decides it’s time to play
cowboy or there is some other dangerous activity involving firearms being regulated.
{¶47} To be clear, no new ground is being tilled here. This concept of taking a
broader view is not new, innovative, or unprecedented. Specifically, this approach
focusing on dangerousness was described by the U.S. Supreme Court in Rahimi,
recognized by the Sixth Circuit Court of Appeals in Williams, and identified by this
court in Thacker. And, while we still must await the Ohio Supreme Court’s guidance
on exactly how Bruen should be applied to constitutional challenges to firearm
regulations under the Ohio Constitution, for now, this broader focus on dangerousness
appears to align with the Court’s guidance in Weber.
{¶48} Allowing this “dangerousness” analysis as an alternative analytical
framework in appropriate cases would allow trial courts the option to choose which
methodology best suits the facts of the case before it and the practical needs of
managing their busy dockets.
{¶49} For the reasons explained above, I therefore concur in the court’s
opinion and judgment.