Ohio Supreme Court: Man rightly convicted, but Second Amendment test debated

By: - December 25, 2020 12:45 am

Courtesy of the Ohio Supreme Court

While the Ohio Supreme Court upheld the conviction of a Clermont County man who carried a shotgun around his home while intoxicated, the justices had mixed opinions on how his Second Amendment rights should be applied in the case.

Frederick Weber appealed to the state’s highest court after being convicted of a first-degree misdemeanor for a 2018 incident at his home. Weber’s wife called police after he picked up a shotgun that eventually was found not to be loaded. When law enforcement arrived, Weber couldn’t complete a field sobriety test, and “admitted several times that he was drunk,” according to court documents.

Weber was given a suspended 10-day sentence, probation and community service on a violation of Ohio law that says a firearm can’t be carried or used by a person under the influence of “alcohol or any drug of abuse.”

He appealed the conviction on the argument that his arrest should never have happened because the law itself violates his Second Amendment rights. He also claimed the right to bear arms in one’s own home “is absolute.”

Chief Justice Maureen O’Connor led the majority in saying Ohio law restricts the right to bear arms in dangerous situations, and a U.S. Supreme Court case that said the Second Amendment protects a person’s right to possess and carry weapons for self-defense does not cancel out every law made to regulate possession of weapons.

“It cannot reasonably be denied that Weber’s choice to drink until he was so highly intoxicated had a detrimental impact on his ability to engage in self-defense, had it been necessary for him to do so,” O’Connor wrote in the majority opinion.

The majority of the court said that under a test developed to help courts determine whether Second Amendment rights have been violated, strict scrutiny for state laws regarding the right to bear arms is only necessary if the law targets the “core of the Second Amendment’s protections.”

In this case, the state supreme court said the state law under which Weber was charged “does not come close” the core, and so a lesser level of scrutiny was applicable.

The state law is also limited to certain situations, such as use or possession of a gun by someone who is verifiably and highly intoxicated, O’Connor wrote.

“Whether due to Weber’s reduced inhibitions or impaired motor skills, Weber’s wife perceived a great enough risk to herself or to Weber to make an emergency call,” the court opinion stated. “That risk was then extended to the two deputies who rushed to the scene at 4 a.m., knowing only that an intoxicated man had a gun and that his wife needed their help.”

While Justice Patrick DeWine agreed with the majority’s judgment, he disagreed with the test the court used to decide the case. He argued that the original “text, history and tradition” of the Second Amendment was sufficient to determine whether or not the right was violated.

“Two explanations of the original understanding of the Second Amendment right — one based on dangerousness and one rights based — are particularly persuasive,” DeWine wrote. “And both weigh in favor of the restriction on gun use by the intoxicated.”

Justice Patrick Fischer agreed with DeWine on deciding constitutionality based on text, history and tradition, but disagreed with the majority conclusion. In fact, Fischer said he would have remanded the case back to the appeals court, rather than conflict on the correct way to determine whether or not rights were violated.

He said if the case returned to the lower court, parties on both sides would have the opportunity to bring historical evidence that was lacking from previous arguments in the case.

“It is not enough to simply claim that the existence of a right invalidates an otherwise presumptively valid law,” Fischer wrote. “Likewise, it is not enough to rest solely on the fact that laws passed by the General Assembly are presumptively valid.”



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Susan Tebben
Susan Tebben

Susan Tebben is an award-winning journalist with a decade of experience covering Ohio news, including courts and crime, Appalachian social issues, government, education, diversity and culture. She has worked for The Newark Advocate, The Glasgow (KY) Daily Times, The Athens Messenger, and WOUB Public Media. She has also had work featured on National Public Radio.