Summary
In Mosher, supra, 48 Ohio St.2d at 247-248, 2 O.O.3d at 414, 358 N.E.2d at 542-543, this court concluded that an ordinance, which required individuals having or acquiring handguns to possess an identification card issued by the city of Dayton, was not violative of either Section 4, Article I or the Second Amendment.
Summary of this case from Arnold v. ClevelandOpinion
No. 76-171
Decided December 22, 1976.
Constitutional law — Ordinances — Gun control — Constitutionality — Handgun-identification card requirement — Reasonable legislation.
A city ordinance which requires those having and those acquiring handguns to possess an identification card issued by the city is a reasonable exercise of the police power.
APPEAL from the Court of Appeals for Montgomery County.
This is an appeal from a decision of the Court of Appeals, upholding an ordinance enacted by the city of Dayton which requires those having and those acquiring handguns to possess an identification card issued by the city.
Ordinance No. 24780, effective July 1, 1975, provides in part:
"A. No person shall possess any handgun, unless such person has a Handgun Owner's Identification Card issued to him and in effect under Section 1055-4 of the Code of General Ordinances, is exempt from the requirement of an Identification Card under Section 1055-6 of the Code of General Ordinances, or is on a suitable firing range.
"B. No person shall sell, deliver, transfer, or furnish any handgun to any person, unless the transferee exhibits a Handgun Owner's Identification Card valid on its face and issued to the transferee under Section 1055-4 of the Code of General Ordinances, or unless the transferee exhibits evidence that he is exempt from the requirement of an Identification Card under Section 1055-6 of the Code of General Ordinances.
"C. No person shall sell, deliver, transfer, or furnish any handgun to any person without first having notified the Director of Finance of his intention so to do not less than five days prior thereto. Such notification shall be in writing, and shall contain name, home address, social security number, and Handgun Owner's Identification Card number of the intended transferee. The Director of Finance shall prescribe the form for such notification, and shall make them available upon request therefor.
"D. Every person regularly engaged in the business of selling or trading handguns at wholesale or retail whether as the principal business of such person or in addition thereto, having sold, delivered, or furnished a handgun to any person pursuant to the provisions of Paragraph C, above, shall within five days thereafter, furnish to the Director of Finance the details of such transaction, including the name and address of the transferee, his Handgun Owner's Identification Card number, and a description of the handgun obtained, including the manufacturer's brand name, the caliber, and serial number.
"E. No person shall use or attempt to use a Handgun Owner's Identification Card to obtain any handgun, knowing such identification card to belong to another, or knowing it was obtained by means of false information, or when it is void by reason of the holder becoming a member of the class of persons prohibited by Section 1055-5 of the Code of General Ordinances from being issued a Handgun Owner's Identification Card.
"F. No person shall use or attempt to use his Handgun Owner's Identification Card to obtain any handgun for any person who does not have a Handgun Owner's Identification Card issued to him and in effect under this section, and is not exempt from the requirement of an identification card pursuant to Section 1055-6 of the Code of General Ordinances, and no person shall knowingly permit his identification card to be used by another to obtain any handgun.
"Sec. 1055-4. APPLICATION.
"A. Application for a Handgun Owner's Identification Card shall be made in writing to the Director of Finance, and shall be accompanied by an application fee of Ten Dollars ($10.00), none of which shall be refunded if such application is denied.
"B. The application shall contain the name, home address, social security number, birth date, physical description of the applicant, and full face photograph of the applicant, and shall be signed by the applicant.
"C. If the applicant for a Handgun Owner's Identification Card is not a person prohibited by Section 1055-5 of the Code of General Ordinances from being issued such card, the Director of Finance shall notify the applicant of the approval of the issuance of such card not less than five nor more than fifteen days from the date of the application by certified mail, return receipt requested, mailed to the applicant at the address stated in the application. The Director of Finance shall notify an applicant prohibited from being issued a Handgun Owner's Identification Card that his application is denied, together with the reason therefor, and of applicant's right of appeal as hereinafter provided within the time and in the manner hereinbefore provided.
"D. Applications for a Handgun Owner's Identification Card shall be endorsed with the serial number and date of issuance of the card, or if such card is not issued, with the reasons therefor, and the date.
"E. All cards issued under this section shall be entitled 'City of Dayton Handgun Owner's Identification Card,' shall be serially numbered, shall bear the date of issue, the name of the issuing authority, and the name, home address, social security number, birth date, physical description, a full face photograph of the holder, and signature of the holder. The Handgun Owner's Identification Card shall also state that it is not a permit to carry a handgun. The Director of Finance shall design and prescribe the form for the application and for the Handgun Owner's Identification Card, and shall make available a supply of such forms to each person requesting an application.
"F. The applicant must personally appear for the issuance of his Handgun Owner's Identification Card within ninety days after receipt of notice of approval. Failure to appear within the ninety-day period shall void the application, but shall not bar subsequent application.
"G. If for any reason an applicant is denied a Handgun Owner's Identification Card, such applicant may appeal such denial to the City Manager. An appeal under this section shall be made within fifteen days after mailing of the notice of denial. A hearing upon such appeal shall be held within ten days from receipt of notice of appeal in writing.
"H. If a person to whom a Handgun Owner's Identification Card has been issued becomes a prohibited person enumerated in Section 1055-5 of the Code of General Ordinances, the card is thereupon void and shall be forfeited to the Director of Finance.
"I. A Handgun Owner's Identification Card expires three years after the holder's first birth date after issuance, and may be renewed for subsequent three-year periods by following the application procedure. The fee for a renewal application shall be Five Dollars ($5.00), none of which shall be refunded if such application is denied.
"J. The Director of Finance, with the approval of the City Manager, is hereby authorized to promulgate such procedure as he deems appropriate to accomplish the orderly application for and issuance of Handgun Owner's Identification Cards prior to July 1, 1975, and for the filing of applications by invalids or handicapped persons.
"K. Any information obtained under the provisions of this section shall be confidential except for official purposes, or except when ordered by a court of competent jurisdiction. No person shall divulge any such information, except as herein provided. In addition to the foregoing provision, any officer, employee, or agent of the city of Dayton who divulges such information shall be guilty of an offense punishable by immediate dismissal."
The constitutionality of the ordinance was upheld by the Court of Common Pleas in a declaratory judgment action brought by appellants, Edward H. Mosher, Sr., and the Ohio Sportsmen's Alliance, against the city. The trial court's judgment was affirmed by the Court of Appeals.
The cause was presented to the Court of Appeals upon an agreed statement of the case.
The cause is now before this court upon an allowance of appellants' motion to certify the record.
Mr. Homer E. Lankford, for appellants.
Mr. James W. Drake, city attorney, and Mr. Raymond C. Hieber, for appellee.
Appellants contend (1) that the ordinance in question infringes upon the right of the people to bear arms and, therefore, violates Section 4, Article I of the Ohio Constitution, and (2) violates the Second Amendment to the United States Constitution. We disagree with appellants' contentions.
"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."
"A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."
The ordinance does not deprive any individual of the protection of Section 4, Article I of the Ohio Constitution. All that the ordinance requires is that the person seeking to possess a handgun be identified under the provisions of the ordinance. In State v. Neito (1920), 101 Ohio St. 409, 130 N.E. 663, the court found to be constitutional a statute prohibiting the carrying of concealed weapons, stating, at page 413, that:
"* * * The statute does not operate as a prohibition against carrying weapons, but as a regulation of the manner of carrying them. The gist of the offense is the concealment. The constitution contains no prohibition against the legislature making such police regulations as may be necessary for the welfare of the public at large as to the manner in which arms shall be borne."
The Dayton ordinance in the present case is still less restrictive, for it does not limit the bearing of arms, but only requires that anyone who wishes to acquire a weapon first obtain an identification card in order to demonstrate that he is entitled to possess such a weapon. This is a reasonable police regulation which finds ample justification in the public interest of keeping dangerous weapons out of the hands of convicted felons and others forbidden to own and carry them. It is no more restrictive than regulations which require application for building permits, drivers' licenses, dog licenses, and many other matters. Reasonable gun control legislation is within the police power of a legislative body to enact; any such restriction imposes a restraint or burden upon the individual, but the interest of the governmental unit is, on balance, manifestly paramount. See Burton v. Sills (1968), 53 N.J. 86, 248 A.2d 521, 28 A.L.R. 3d 829, and cited cases.
We also find no merit in the appellants' claim that the ordinance violates the federal Constitution ( Second Amendment to the United States Constitution, supra). A state regulation of the ownership and use of firearms does not violate the Second Amendment unless it infringes upon the maintenance of a well-regulated militia, the right which the Second Amendment seeks to protect. See United States v. Miller (1939), 307 U.S. 174; Presser v. Illinois (1886), 116 U.S. 252. No provision of the Dayton ordinance conceivably interferes with that right.
It is true that in certain areas of federal and state Constitutional law the rights of the individual are supreme. In order to so find, the language authorizing such intention must be clear and unambiguous. We do not so find here. Neither federal nor state law states that the right of an individual to bear arms is supreme over the authority of a governmental unit under the police power to regulate the purchase of arms in a reasonable manner. The ordinance delineates in detail who may and who may not acquire a handgun. The public purpose furthered by this ordinance is evident; it is to safeguard the public as much as possible from the dangers of illegal weapons. This is certainly a proper subject for reasonable regulation under the police power.
Appellants have failed to show that their right to acquire and possess handguns is violated by the provisions of the Dayton ordinance. Therefore, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, W. BROWN and P. BROWN, JJ., concur.
I am unable to concur with the majority's conclusion that the Dayton ordinance under consideration does not limit the bearing of arms since it "only requires that anyone who wishes to acquire a weapon first obtain an identification card * * *."
We are concerned here with a municipal ordinance, the violation of which constitutes a misdemeanor in the first degree. The maximum penalties for a violation thereof are imprisonment for a term of six months, a fine of $1,000, or both.
Section 1055-5 of Ordinance No. 24780 identifies those individuals not eligible for a handgun owner's identification card. "A Handgun Owner's Identification Card shall not be issued to any person who is:
"A. Prohibited by Section 2923.13 of the Revised Code of Ohio, from obtaining, possessing, carrying, or using a firearm.
"B. A person with more than one conviction within one year prior to his application for Handgun Owner's Identification Card, of any offense involving drunkenness or drug abuse.
"C. A person with a conviction of ANY OFFENSE involving the use of force and violence, or the threat of the use of force and violence, against the person of another." (Emphasis added.)
R.C. 2923.13, referred to in Section 1055-5, above, provides in pertinent part:
"* * * no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:
"(1) Such person is a fugitive from justice;
"(2) Such person is under indictment for or has been convicted of any felony of violence, or has been adjudged a juvenile delinquent for commission of any such felony;
"(3) Such person is under indictment for or has been convicted of any offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse, or has been adjudged a juvenile delinquent for commission of any such offense;
"(4) Such person is drug dependent or in danger of drug dependence, or is a chronic alcoholic;
"(5) Such person is under adjudication of mental incompetence." A violation of this section is a felony of the fourth degree, punishable by imprisonment for a maximum term of five years, a fine of not more than $2,500, or both.
With the adoption of the Home Rule amendments to the Ohio Constitution in 1912, political power was distributed between the state and municipal levels of government. Exclusive state power remained in those areas where a municipality was in no way affected, or in which, for various reasons, state dominance was appropriate. An area of mutual power — promulgation of police regulations — was established, with points of friction between the enactments of the two levels subject to resolution by the "no conflict" test. See paragraph two of the syllabus in Struthers v. Sokol (1923), 108 Ohio St. 263.
Section 3 of Article XVIII of the Ohio Constitution provides that:
"Municipalities shall have authority * * * to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."
It is my belief that the public interest in keeping dangerous weapons out of the hands of those suffering from "disability" is a matter of statewide concern; therefore, the municipal police power is necessarily pre-empted by the provisions of R.C. 2923.13. Indeed, it is difficult to ascertain the justification for the municipal ordinance here involved, given the rather broad definition of those statutorily prohibited from possessing firearms.
Moreover, there is an apparent conflict between the provisions of R.C. 2923.13 and Section 1055-5 of Ordinance No. 24780, in that the Dayton ordinance prohibits the bearing of arms by those classes of persons italicized in the ordinance, above, while the statute, R.C. 2923.13, tacitly permits those same classes of persons to bear arms.
When reviewing legislation which seeks to restrict one of the fundamental civil rights, I would require that all limitations placed upon that right be not only reasonable, but also necessary. Because I believe the Dayton ordinance to be superfluous, I dissent.