Oral arguments for gun owner drunk inside his own house

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Oral arguments for gun owner drunk inside his own house

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https://www.whio.com/news/local/argumen ... j5vio7dZJ/" onclick="window.open(this.href);return false;
COLUMBUS, Ohio — The Ohio Supreme Court will hear arguments in February to decide whether a law prohibiting gun owners from carrying firearms while intoxicated should be applied inside a gun owner’s home.

Lawyers for a Clermont County man arrested in 2018 after he acknowledged having an unloaded shotgun while drunk say the law is unconstitutional when applied to homeowners.

They say a person’s sobriety or intoxication level should have nothing to do with possessing a weapon “in the hearth and home.”

Gun control advocates argue the safety of Ohio residents and responding police officers would be jeopardized if the court overturned the arrest.
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Re: Oral arguments for gun owner drunk inside his own house

Post by evan price »

I guess I need more details.
If being intoxicated in your home and having access to firearms is a crime that's a serious issue, basically you can't ever drink once you buy a gun.
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Re: Oral arguments for gun owner drunk inside his own house

Post by JustaShooter »

evan price wrote:I guess I need more details.
If being intoxicated in your home and having access to firearms is a crime that's a serious issue, basically you can't ever drink once you buy a gun.
Access isn't the issue. Under Ohio law, you cannot carry or use a firearm while under the influence. So, put it away if you are going to be drinking enough to be considered "under the influence".
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Re: Oral arguments for gun owner drunk inside his own house

Post by JediSkipdogg »

JustaShooter wrote:
evan price wrote:I guess I need more details.
If being intoxicated in your home and having access to firearms is a crime that's a serious issue, basically you can't ever drink once you buy a gun.
Access isn't the issue. Under Ohio law, you cannot carry or use a firearm while under the influence. So, put it away if you are going to be drinking enough to be considered "under the influence".
Yup, and while it didn't make it big, we did lose it on appeal, but...

We had a case where a person drank and then drove. One would think DUI? However, the officer only charged the person with weapons while intoxicated. The court, and subsequent appeals court, ruled that if we thought he was intoxicated enough to not have a weapon, then he was intoxicated enough to not drive. And since we only charged on one (he passed field sobriety testing), and not the other, we lost.
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Re: Oral arguments for gun owner drunk inside his own house

Post by DontTreadOnMe »

evan price wrote:I guess I need more details.
If being intoxicated in your home and having access to firearms is a crime that's a serious issue, basically you can't ever drink once you buy a gun.
The case is https://www.courtlistener.com/opinion/4 ... e-v-weber/" onclick="window.open(this.href);return false;. Here are the bits relevant to the charge:
the officers observed appellant coming out of a doorway, holding a shotgun by the stock with the barrel pointed down. Appellant told the officers that the shotgun was unloaded and that he was unloading it to wipe it down.
While interacting with appellant, the deputy detected the odor of an alcoholic beverage on appellant's person. Appellant's eyes were bloodshot and glassy, his speech was slurred, and he was unsteady on his feet. Appellant was unable to complete a field sobriety test because he could not follow directions. Furthermore, he was swaying while standing in the instruction position. Appellant stated several times that he was drunk. The officers described appellant as "very intoxicated," "very impaired," and "highly intoxicated."
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Re: Oral arguments for gun owner drunk inside his own house

Post by M-Quigley »

There's also this:
Around 4:00 a.m. on February 17, 2018, a deputy and a sergeant from the Clermont County Sheriff's Office were dispatched to appellant's home following the 9-1-1 call of his wife reporting that appellant was in possession of a firearm and intoxicated. When the officers arrived at the scene, appellant's wife advised them that everything was alright as appellant had put the firearm away. The deputy asked her if they could enter the home and she escorted them inside. Once inside, the officers observed appellant coming out of a doorway, holding a shotgun by the stock with the barrel pointed down. Appellant told the officers that the shotgun was unloaded and that he was unloading it to wipe it down. The officers took possession of the shotgun and confirmed it was unloaded. The officers did not observe any ammunition for the shotgun.
IDK if this is a statement error on the part of the defendant or an transcribing error in the report, but saying the shotgun is already unloaded and then saying he was "unloading it to wipe it down" doesn't make sense if no ammunition is observed. Perhaps the correct word should be that he was "carrying" it to wipe it down. :?:
{¶ 11} Appellant challenges his conviction on two separate grounds. Specifically, appellant challenges his conviction on the ground the state failed to prove he was carrying or using a firearm because "the record is devoid of any evidence that the unloaded shotgun [appellant] was holding was carried or used as a firearm" or that he "had committed, was committing or was about to commit" any "crime while holding the shotgun." Appellant further challenges his conviction on the ground R.C. 2923.15 is unconstitutional on its face and as applied because it infringes upon his right to keep and bear arms and defend himself.

{¶ 12} Appellant was convicted of violating R.C. 2923.15(A) which provides, "No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance." Whoever violates the statute is "guilty of using weapons while intoxicated[.]" R.C. 2923.15(B). "'Firearm' means any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. 'Firearm' includes an unloaded firearm, and any firearm that is inoperable but that can readily be rendered operable." R.C. 2923.11(B).
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Re: Oral arguments for gun owner drunk inside his own house

Post by DontTreadOnMe »

I see it as "he had been unloading it to wipe it down" but due to being drunk didn't express himself eloquently.
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Re: Oral arguments for gun owner drunk inside his own house

Post by JonasM »

Or his act of unloading while 'loaded' :) prompted his wife to call the police. By the time they arrived, it was unloaded. He wasn't.
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Re: Oral arguments for gun owner drunk inside his own house

Post by Whirlwind06 »

Just reinforces to me that nothing good happens at 4 am, after drinking! :)
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Re: Oral arguments for gun owner drunk inside his own house

Post by bignflnut »

evan price wrote:I guess I need more details.
If being intoxicated in your home and having access to firearms is a crime that's a serious issue, basically you can't ever drink once you buy a gun.
That's right! Johnny! Tell him what he's won!...

We've so far swallowed this lie that all drinking leads to intoxication, that even one beer can lead to a DUI, DWI, OVI, OMVI...
Can I be convicted of OVI if I refuse to take a test of my breath, blood or urine?

Yes. The law presumesthat, if you operate a vehicle and are found to be at or over the “legal limit,” you are guilty of OVI. However, Ohio law allows you to argue against this presumption of guilt, within limits, in court. If it is proven that the alcohol level in your system is at or over the legal limit, you can be convicted of OVI even if you show no other signs of being under the influence.

If you refuse to allow law enforcement to measure the amount of alcohol in your breath, blood or urine, you still may be convicted of OVI based on evidence of impairment such as poor driving performance, alcohol odor, slurred speech, red and glassy eyes, and staggering and poor performance on field sobriety tests. Further, Ohio law has made it a criminal offense to refuse to submit to testing once you have been arrested for OVI.
(another fruit of being a "single issue" org, avoiding battles for LIBERTY that then come back to bite RKBA)

A little leaven leavens the whole...and we've begged for the wrong leaven to do it's work.

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But the new prohibitionist movement isn't alcohol, or brain rewiring drugs -oh, no- it is the firearm that must be prohibited above all things.

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Re: Oral arguments for gun owner drunk inside his own house

Post by Werz »

Regardless of what the Ohio Supreme Court decides, we should be clear what the case is not about because the Court of Appeals already stated that these things were not illegal. The law "does not, as suggested by appellant, criminalize the mere presence of a firearm in the home of an intoxicated person. Nor does the statute, as suggested by appellant, prohibit a person from carrying or using a firearm after consuming alcoholic beverages. Rather, the statute only prohibits the use or carrying of a firearm by a person who has imbibed to the point of intoxication." (Emphasis added.) State v. Weber, 12th Dist. Clermont No. CA2018-06-040, 2019-Ohio-916, ¶14.

The court also decided that the law did not violate his right to defend himself and his family under the castle doctrine because that's not what he was doing when he was carrying the gun around the house; therefore, that issue was not before the court. Id., at ¶20.

http://www.supremecourt.ohio.gov/rod/do ... io-916.pdf
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Re: Oral arguments for gun owner drunk inside his own house

Post by bignflnut »

Thank you, Werz, for the case link....very instructive.
pg3
{¶ 12}Appellant was convicted of violating R.C. 2923.15(A) which provides, "No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance." Whoever violates the statute is "guilty of using weapons while intoxicated[.]" R.C. 2923.15(B). "'Firearm' means any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. 'Firearm' includes an unloaded firearm, and any firearm that is inoperable but that can readily be rendered operable." R.C. 2923.11(B).

pg5
{¶ 17}Statutes enacted by the Ohio legislature enjoy a strong presumption of constitutionality. State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, ¶ 7. The party challenging the constitutionality of a statute must prove that it is unconstitutional beyond a reasonable doubt. Arnold v. Cleveland, 67 Ohio St.3d 35, 39 (1993).

SNIP

pg6-7
{¶ 21}The right to keep and bear arms is a fundamental right enshrined in federal and state constitutional law. State v. Robinson, 12th Dist. Butler No. CA2014-12-256, 2015-Ohio-4649, ¶ 11. In Heller, the United States Supreme Court held that the Second Amendment to the United States Constitution confers an individual right to keep and bear arms, and that its "core protection" is "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Heller, 554 U.S. at 595, 634-635. See also McDonald v. Chicago, 561 U.S. 742, 750, 130 S.Ct. 3020 (2010) (extending the Second Amendment right to keep and bear arms to the states under the Fourteenth Amendment's Due Process Clause).

{¶ 22}The Supreme Court however emphasized that this right is subject to certain longstanding limitations:Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. * * * Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (Emphasis added.) Heller at 626-27. The court additionally cautioned that "these presumptively lawful regulatory measures [serve] only as examples; our list does not purport to be exhaustive." Id. at 627, fn. 26.
Heller isn't helping, y'all.

The dude is asking for R.C. 2923.15(A) to be declared unconstitutional. Here's a short list of reasons he's being denied:
A. Presumption of constitutionality of all passed laws. Para 17
B. Burden is on him to prove that there's no scenario in which this is a proper law Para 18...
C. Burden on him to show how unconstitutional in this scenario Para 19
D. Can't user Heller.

But Paragraph 25 is the fatal wound:
{¶ 25}The Ohio Supreme Court has similarly held that Article I, Section 4 of the Ohio Constitution confers an individual right to keep and bear arms "for defense of self and property." Arnold, 67 Ohio St.3d at 43. However, "this right is not absolute" and may be limited in furtherance of valid public safety interests. Id. at 45-46. The right to keep arms is "subject to reasonable regulation" which, under the state's police powers, must "bear a real and substantial relation" to secure "the health, safety, morals, or general welfare of the public." Id. at 46-47. The supreme court continued, Any form of gun control legislation is destined to attract much attention. That does not change the fact that there must be some limitation on the right to bear arms to maintain an orderly and safe society while, at the same time, moderating restrictions on the right so as to allow for practical availability of certain firearms for purposes of hunting, recreational use and protection. Id. at 48. Accordingly, "the recognized state right to bear arms is subject to reasonable regulation which advances the health, safety, morals, or general welfare of the public." Peoples Rights Org., Inc. v. Montgomery, 142 Ohio App.3d 443, 501 (12th Dist.2001).
In short, this dude is up against a dozen bad decisions with various bad applications of bad laws. The layers of the onion are mezmerizing.

The barrel this guy is being spun around in because his lady made a 9-1-1 call, and subsequently let the cops come in is stupefying.

Even an OFCC case is being used against this dude!
pg 13
Paragraph 39
...But R.C. 9.68 does more than merely state the need for uniformity. Ohioans for Concealed Carry, Inc. v. Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605, ¶ 20. While recognizing the right to keep and bear arms as a "fundamental individual right" and "a constitutionally protected right in every part of Ohio," the statute plainly allows the state to regulate certain aspects of firearm ownership, transfer, possession, transporting, or use by providing that a person may own, possess, or keep any firearm "[e]xcept as specifically provided by * * * state law, or federal law[.]" "Simply put, the General Assembly, by enacting R.C. 9.68(A), gave persons in Ohio the right to carry a handgun unless federal or state law prohibits them from doing so." Clyde at ¶ 20. Thus, pursuant to R.C. 9.68, "federal or state regulations can limit an Ohioan's individual right to bear arms." Cleveland at ¶ 1. R.C. 2923.15 is such a state law. R.C. 9.68, therefore, affords no protection to appellant from conviction for carrying a shotgun while intoxicated.
Leviathan is large and in charge, friends. And OBTW, the State doesn't recognize that your Rights are absolute, (who is asking that it should?) there's always a compelling State interest in qualifying when, where, and how you exercise them.
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Re: Oral arguments for gun owner drunk inside his own house

Post by bignflnut »

It will be interesting to see what grounds this guy comes up with to justify himself.

If I had to bet, I'd say there's a 90% chance this guy is cooked. It would only be 30/70 if he was to see a jury. The mis-education of our Rights coupled with the desire to win incremental political battles by those who study law is so complete...that this guy is understandably throwing all the spaghetti at the wall hoping it sticks. With the Ohio Supremes, what chance does he have of making a dent? They don't have the fortitude to declare Rights as anything other than malleable.

There's certainly a large difference between how we in non-legal circles understand Rights and how those in the profession understand Rights.
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Re: Oral arguments for gun owner drunk inside his own house

Post by Westsider »

So basically if you drink a beer and are cleaning a firearm you will lose your gun rights forever? Don't say well you can't be intoxicated carrying a firearm because that's purely subjective to whatever the whims of the legislature decides. This is un-Constitutional.
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Re: Oral arguments for gun owner drunk inside his own house

Post by Chuck »

Basically if you are drinking a beer and cleaning your gun and your wife calls the cops on you, it would be a good idea to put the gun away before the cops get there.
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