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Ohio Attorney General and Columbus locked in court dispute over extent of local firearm authority

At issue are Columbus laws banning straw sales and large-capacity magazines while requiring safe storage at home
Guns
Posted at 7:41 AM, Jan 24, 2023
and last updated 2023-01-24 11:57:44-05

The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.com under a content-sharing agreement.

A Fairfield County judge has allowed a handful of local gun control and safety measures to take effect in Columbus. It’s the latest twist in a long-running case over the extent of home rule authority in Ohio.

Columbus’ ordinances prohibit magazines with 30 or more bullets, criminalizes straw sales, and requires gun owners store firearms safely. The legislation also adds language to negligent homicide and assault charges. If a minor gains access to a firearm, the gun owner could be charged if they weren’t storing the weapon safely.

How we got here
Late in 2018, Ohio lawmakers overrode then-gov. John Kasich’s veto of House Bill 228. Among other firearm provisions, the measure preempted local laws regarding gun control. Columbus sued shortly after, but the case sat in limbo for years. Last November, a Franklin County judge granted a preliminary injunction halting enforcement of the state preemption provisions while the case proceeds.

Attorney General Dave Yost filed an appeal in the Tenth Circuit. But with the preemption language on hold, the city of Columbus passed its gun ordinances in early December. Yost then filed another case aiming to block those local changes.

The Attorney General filed that case in Fairfield County rather than Franklin County. Columbus City Attorney Zach Klein accused Yost of “judge shopping,” but because the city stretches into Fairfield County, Yost was able to proceed.

About a week and a half after Columbus passed its ordinance, the Fairfield judge halted it temporarily. The judge heard the arguments from both sides and last week turned down Yost’s motion to block the local laws while the other case plays out.

The fight to block Columbus’ ordinances
In his order denying Yost’s preliminary injunction, Judge Richard Berens determined the state failed to meet its burden. The core of the parties’ dispute was what standard should apply.

The city argued the attorney general is improperly applying federal caselaw to the state court.

“The state has only provided case law that has arisen under the Second Amendment to challenge the city’s ordinances. This is not, however, a Second Amendment case,” Columbus attorneys argued.

Ohio court precedents have found an individual right to bear arms, but importantly, that those are not absolute. Under that prior case law, judges are supposed to apply a “reasonableness” test to proposed restrictions.

While Ohio’s legislature has been a reliable vehicle for expanding gun rights, the state’s courts haven’t been churning out precedent-setting rulings at the same rate. The case Columbus’ attorneys cite, Arnold v. Cleveland, came down in 1993.

The attorney general’s team, meanwhile, argued since Ohio’s right to bear arms is more explicit than the Second Amendment, state protections should be at least as extensive as federal ones.

“The interpretation of the Ohio constitutional right to bear arms, which has been found to extend at least as far as, if not farther than, the U.S. Second Amendment, should be informed by the U.S. Supreme Court’s recent Second Amendment jurisprudence,” they wrote.

The AG pointed to the 2022 U.S. Supreme Court case New York State Rifle & Pistol Association Inc. v. Bruen, which struck down a New York law requiring applicants show cause before receiving a concealed carry license. Under that broader reading of gun rights, they argued, “what the City labels ‘safe storage,’ others consider self-defense-restrictions.”

Berens’ ruling
Berens wasn’t moved by the AG’s arguments.

“Whether Bruen and its antecedents require a reexamination of Arnold v. Cleveland is an issue for the Supreme Court of Ohio to address,” Berens reasoned.

He went on to note Columbus’ ordinances don’t ban “all, or even any particular type of weapons.” They similarly do not prohibit “carrying or using” weapons in self-defense.

“The ordinances limit certain weapon accessories (i.e. large capacity magazines) and how weapons can be stored,” Berens wrote. “Plaintiff may be able to ultimately show such restrictions violate the Ohio Constitution but has not demonstrated by clear and convincing evidence that they are likely to be able to do so at this point in time.”

It’s important to note Beren’s ruling last week doesn’t settle the matter. He only declined to block the city law from taking effect while the AG’s office continues its case to strike them down permanently. In the meantime, the AG can appeal. In a statement, spokesperson Bethany McCorkle said that’s what they intend to do.

“We will seek appellate review in this decision and are reviewing the appropriate mechanisms to do so,” she wrote.

Also, the fight over Columbus’ ordinances is just one track of the broader dispute. The case in which a Franklin County judge enjoined parts of the state preemption law is also active in the Ohio 10th Circuit Court of Appeals.