What Second Amendment?

A Gun in the Car, Ohio V. King

By AJ Wagner

Guns are legal. The right to have a gun is enshrined within The Bill of Rights in both the United States and the State of Ohio Constitutions. Limitations on gun possession should, therefore, be rare.

A decision last year by Ohio’s Second District Court of Appeals in Dayton does a good job of setting forth the current state of the law in Ohio and the exceptions. In Ohio v. King, the court took a hard look at Ohio Revised Code section §2923.16(B) and found it to be constitutional despite the constitutions’ declarations of rights.

At issue in the case was the criminal conviction of King for improperly handling a firearm in a motor vehicle. King was stopped by Dayton police for having an expired license plate. When King was stopped, he reached toward the back seat. Because of this, the officer called for backup, which arrived minutes later.
King’s passenger was removed from the vehicle by an officer who noted the floor mat was folded back. The officer lifted the mat and found a metal box that he recognized as a gun box. There was a loaded magazine in the box, but no gun. King, after being asked, admitted that the gun was behind him. Sure enough, inside a zipped case, there was a gun. King did not have a concealed-carry permit.

King challenged the statute under which he was charged, telling the court it was in violation of the Second Amendment and the Fourteenth Amendment of the U.S. Constitution.

Because the trial court ruled that the federal gun amendment did not apply to Ohio, King first had to argue to the appeals court that the Second Amendment of the U.S. Constitution applies to all of us. “True,” said the court. “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,” is applicable in Ohio and forty-nine other states.

A court must always assume that laws passed by the legislature and signed by the governor are constitutional. §2923.16(B) will not be invalidated unless the challenger establishes that it is unconstitutional beyond a reasonable doubt.
The court noted that the right to bear arms is a fundamental right. “However, that right is not unlimited. Regulations regarding the manner in which weapons may be carried involve the police power of the state. Such regulations are constitutionally permissible if they impose reasonable limitations upon an individual’s right to bear arms.”

§2923.16(B) says, “No person shall knowingly transport or have a loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the operator or any passenger without leaving the vehicle.”  The law only limits an individual’s right to transport a loaded gun within reach of the driver or any passenger. That, the court said, is appropriate and reasonable.
Actually, the court noted a non-exhaustive list of five ways a legislature could limit the possession of firearms:

  1. Possession of firearms by felons,
  2. Possession by the mentally ill,
  3. Possession in sensitive places such as schools,
  4. Possession in government buildings, or
  5. Imposition of conditions and qualifications on the commercial sales of arms.

Because this is not an exhaustive list, the court said, “[T]o include restrictions on transport of firearms in a motor vehicle within the listed categories of permissible gun regulations does not mean that a restriction of that type is necessarily unconstitutional.”

King then argued that §2923.16(B) imposes a more severe penalty for violators who do not possess a concealed carry permit than for those who do. That, says King, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.  That amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” This clause prohibits states from arbitrarily treating similarly situated people differently under the laws.
The court said, “King is not similarly situated to a permit holder. One who has obtained a permit has successfully completed firearm training and has been fingerprinted and undergone a background check. It is logical to conclude that a permit holder will pose less of a threat to public safety than a non-permit holder, and therefore be deserving of a lesser punishment than a non-permit holder.”

So, King was convicted. If King wishes to carry a gun in the future his felony conviction will make it difficult to obtain a Concealed Carry license. A convicted felon cannot normally obtain a license to carry. However, under Ohio Revised Code § 2923.14, a convicted felon who has completed his or her sentence may appeal to the trial court and convince the judge that he or she has been, and continues to be, a law-abiding citizen. The court may then order the right to carry.
Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

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