Second Amendment/reasonable fear of attack case

In a case in which three men in a car were arrested, one of whom had a loaded gun, the Ninth District Court of Appeals reversed the trial court's denial of defendant's motion to dismiss and remanded the matter for further proceedings. (Decision)

Defendants father received a call from defendant's brother saying he owed a third man $20 and that that man had a gun. Defendant and his father drove to Akron, Ohio to give the brother the $20, but, as the brother had been shot before, the father had also brought a loaded handgun for protection. As the two men arrived at a gas station and the brother got in the back seat of the car, police, responding to a reported kidnapping, surrounded the vehicle and ordered the men out. After the three had exited the vehicle, one of the officers saw the gun between the seats of the car and all three were placed under arrest.

At trial, jury convicted defendant of improper handling of a firearm in a motor vehicle, but acquitted him of resisting arrest. A charge of carrying a concealed weapon was subsequently dismissed at the State's request. Trial court sentenced defendant to 18 months of community control and fined him $500 and court costs. Defendant appealed arguing that Ohio Revised Code §2923.16(B) was unconstitutional given the U.S. Supreme Court decisions in District of Columbia v. Heller and McDonald v. Chicago because it "does not contain an exception for a person to transport a loaded handgun when there is reasonable fear of a criminal attack." (The brother told his father over the phone that the man owned a gun.).

Judge Eve V. Belfance, writing for the majority in the Appeals decision, said "The trial court did not reach the question of whether the Second Amendment applied in this case, apparently believing that the Second Amendment required no more rigorous review than that already required by the Ohio Constitution for laws infringing upon the right to bear arms. But it was incorrect because Heller and McDonald indicate that courts have to apply a heightened level of scrutiny to laws infringing upon a Second Amendment right."

She noted that while the Ohio Supreme Court "set forth the level of scrutiny applicable to gun-control laws under the Ohio Constitution" with rulings in those two cases, "Ohio courts have not reached any consensus as to the proper level of scrutiny in the aftermath of Heller."