We therefore sustain Mr. Storms’ assignment of error, reverse Mr. Storms conviction, and remand this matter to the trial court. The trial court must apply Bruen and determine whether, as applied to Mr. Storms, Ohio’s firearm regulation under the CCW statute is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.

Is a Constitutional Storm About to Sweep Ohio?

State v. Storms

2024 – Ohio – 1954

First District Appellate Court

Hamilton County, Ohio

May 22, 2024

 

Carl is Arrested for CCW

In May 2022, Mr. Carl Storms pleaded guilty to attempted failure to comply. The trial court sentenced him to two years of community control and ordered him to complete mental-health counseling. After Mr. Storms failed to report to probation, the trial court issued a warrant for his arrest. When Mr. Storms was arrested in April 2023, he had a concealed firearm in his possession.

In May 2023, the state indicted Mr. Storms on a single count of CCW in violation of O.R.C. §2923.12(A)(2). In August 2023, Mr. Storms filed a Crim.R. 12 motion to dismiss. Citing Bruen, Mr. Storms argued that the CCW charge against him violated his rights under the Second and Fourteenth Amendments to the United States Constitution and Article I, Section 4 of the Ohio Constitution. In his motion, Mr. Storms noted that while he was otherwise permitted to possess a firearm, the state alleged that he was prevented from carrying a concealed weapon due to his being a “fugitive from justice.” Mr. Storms argued that the plain text of the Second Amendment presumptively permitted him to carry a concealed weapon and that there was no historical tradition consistent with application of the CCW statute to him. The state did not respond to Mr. Storms’s motion.

The trial court did not apply Bruen

The trial court held arguments on Mr. Storms motion to dismiss. Mr. Storms argued that New York State Rifle & Pistol Assn. v. Bruen, 597 U.S. 1 (2022) set out the applicable standard and that the plain text of the Second Amendment covered his conduct. He maintained the burden had therefore shifted to the state to affirmatively prove that Mr. Storms’ charge under the CCW statute was supported by a historical tradition of firearms regulation.

Law Abiding Citizens

The state, however, repeatedly asserted that Bruen did not apply to Mr. Storms as Bruen was limited to “law-abiding citizens.” The state claimed that it had no burden to establish historical support for the CCW statute and presented no evidence in support of the law. Instead, the state argued that Mr. Storms was prohibited under Ohio law from carrying a concealed weapon due to his felony conviction and his being a “fugitive from justice.”

A Convicted Felon is Not a Qualified Adult

The trial court did not address Mr. Storms’ Bruen argument. Instead, it denied Mr. Storms motion to dismiss because he was not a “qualifying adult” under O.R.C. §2923.111 due to his felony conviction and status as fugitive from justice. Therefore, the trial court determined only that Mr. Storms was prohibited from having a concealed weapon under Ohio law. The trial court held that the state “fulfilled their burden of showing that the defendant was a fugitive from justice. He is a convicted felon.”

Probation – Drug Addict and Fugitive from Justice

When Mr. Storms asked for clarification from the trial court as to the lack of historical tradition regarding prohibiting “fugitives from justice” from possessing concealed weapons, the court replied, “it would be the fact that he was on probation … He tested positive for drug screens. And then he didn’t appear for any of his appointments and a warrant was out for his arrest.”

Motion to Suppress is Denied – Convicted – Appeal

After the trial court denied Mr. Storms’ motion, he pleaded no contest to the CCW charge. The trial court sentenced Mr. Storms to community control and ordered the firearm to be forfeited to the state. Mr. Storms has appealed.

The Second Amendment under Bruen

The Second Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, reads, “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.” McDonald v. City of Chicago, 561 U.S. 742, 750 (2010). The Supreme Court of the United States has held that the Second Amendment protects the right of an “ordinary law-abiding citizen” to carry a firearm for self-defense. Bruen.

Nation’s historical tradition of firearm regulation

In Bruen, the Supreme Court set out the test courts must apply when analyzing any Second Amendment challenge: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Bruen at 24.

Applying the first step of its analysis, the Bruen Court stated that the Second Amendment works to “guarantee the individual right to possess and carry weapons in case of confrontation.” The Court noted that “Heller further confirmed that the right to ‘bear arms’ refers to the right to ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., quoting Heller at 584. In Heller, the Court observed that there is “a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.” (Emphasis added.) Heller at 581. In Bruen, the Court held that the Second Amendment’s plain text covered the regulated conduct in that case, which was “carrying handguns publicly for self-defense.” Bruen at 31.

Burden Shifts from Defendant to the State

If the challenger meets the burden to show that the conduct at issue is covered by the Second Amendment’s plain text, the burden shifts to the state to “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Bruen. Confronted with modern regulations “that were unimaginable at the founding,” the “historical inquiry that courts must conduct will often involve reasoning by analogy.” Id. at 28. Courts must consider whether the challenged regulation and the historical analogues provided by the state are “relevantly similar.” Id. at 29.

Bruen’s Two-Part Test

While not purporting to “provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment,” the Bruen Court provided two metrics to be considered: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” Because “ ‘individual self- defense is “the central component” of the Second Amendment Right,’ … whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are ‘ “central” ’ considerations when engaging in an analogical inquiry.” Id., quoting McDonald.

[N]either a regulatory straightjacket nor a regulatory blank check.

The Bruen Court stated that its test was “neither a regulatory straightjacket nor a regulatory blank check.” Id. at 30. But Bruen’s test does require courts to straddle a fine line: On the one hand, courts should not “uphold every modern law that remotely resembles a historical analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have accepted.” Drummond v. Robinson, 9 F.4th 217, 226 (CA3 2021). On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.

[C]ourts should not sift the historical materials for evidence to sustain the state’s burden.

In applying Bruen’s second step, courts should employ a “historical inquiry,” relying on “ ‘various evidentiary principles and default rules’ to resolve uncertainties” that courts should resolve “based on the historical record compiled by the parties.” Bruen at fn. 6. The burden falls solely on the state to create this record—courts should not “sift the historical materials for evidence to sustain the state’s burden.” Id. at 60.

 [W]hen it comes to interpreting the Constitution, not all history is created equal

Finally, the Bruen Court emphasized that historical analogues existing at or around the time of the passage of the Second and Fourteenth Amendments provided stronger support for a challenged regulation because “when it comes to interpreting the Constitution, not all history is created equal. ‘Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.’ ” Id. at 34, quoting Heller, “The Second Amendment was adopted in 1791; the Fourteenth in 1868.”

Ohio’s CCW law

Mr. Storms was convicted of CCW in violation of O.R.C. §2923.12(A)(2), which provides that “[N]o person shall knowingly carry or have, concealed on the person’s person or concealed ready at hand, any of the following … (2) A handgun other than a dangerous ordnance.” But O.R.C. §2923.12(A)(2) “does not apply to any person who has been issued a concealed handgun license that is valid at the time of the alleged carrying or possession of a handgun.” O.R.C. §2923.12(C)(2).

In 2022, the General Assembly enacted O.R.C. §2923.111, which states that a “qualifying adult” is not required to obtain a license to carry a concealed handgun “that is not a restricted firearm.” O.R.C. §2923.111(B)(1). A “qualifying adult” is a person who (1) is at least 21 years old; (2) is not prohibited from possessing a firearm under federal or Ohio law; and (3) satisfies the relevant criteria under R.C. 2923.125(D)(1), which governs applications for CCW licenses. O.R.C. §2923.111(A)(2)(a)-(c).

Is a Convicted Felon a Qualified Adult?

Qualifying adults are treated as though they possessed a concealed handgun license and may carry a concealed handgun “anywhere in this state in which a person who has been issued a concealed handgun license may carry a concealed handgun.” O.R.C. §2923.111(B)(2) and (3). And under the CCW statute, a qualifying adult who “is carrying or has, concealed on the person’s person or ready at hand, a handgun that is not a restricted firearm shall be deemed to have been issued a valid concealed handgun license.” O.R.C. §2923.111(C)(1). Thus, if Mr. Storms was a qualifying adult, he could not have been charged with a violation of O.R.C. §2923.12(A)(2). 

State of Ohio Statute Prohibits Convicted Felon’s from Firearm Possession

At the hearing, the state and trial court focused on two CCW license requirements under O.R.C. §2923.125(D) that Mr. Storms allegedly did not satisfy. Relevant here, a sheriff shall issue a concealed handgun license if “[T]he applicant is not a fugitive from justice,” and “the applicant has not been convicted of or pleaded guilty to a felony or an offense under Chapter 2925., 3719., or 4729. of the Revised Code that involves the illegal possession, use, sale, administration, or distribution of or trafficking in a drug of abuse.” O.R.C. §2923.125(D)(1)(c) and (e). The trial court found that both requirements prevented Mr. Storms from being a qualifying adult under O.R.C. §2923.111.

First District Appellate Court Holds Trial Court Failed to Apply the Correct Legal Standard

On appeal, the state concedes that Bruen sets out the applicable standard for Mr. Storms’ motion, and that the burden shifted to it under Bruen to affirmatively prove that the CCW statute as applied to Mr. Storms is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.

The Bruen Decision Supersedes Ohio Law

We agree that Bruen applies to Mr. Storms challenge, and that Mr. Storms established that his conduct falls under the plain text of the Second Amendment. See Bruen, Whatever relevance Mr. Storms’ prior felony conviction, ongoing sentence for that conviction, or purported status as a fugitive from justice may have to the Second Amendment analysis falls under Bruen’s second prong.

Is Ohio’s CCW Law Constitutional?

Though Mr. Storms satisfied his burden under Bruen, the trial court did not apply Bruen. The trial court appears to have only determined that because Mr. Storms had a prior felony conviction and was also a fugitive from justice, he was excluded from the definition of “qualifying adult” and therefore prohibited from carrying a concealed weapon under Ohio law. But the trial court did not address the constitutionality of Ohio’s CCW statute as applied to Mr. Storms under Bruen.

The Trial Court Gets a Second Chance

We hold that the trial court erred when it failed to analyze whether the state affirmatively proved that Ohio’s firearm regulation under the CCW statute is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms. We therefore sustain Mr. Storms’ assignment of error, reverse Mr. Storms’ conviction, and remand this matter to the trial court. The trial court must apply Bruen and determine whether, as applied to Mr. Storms, Ohio’s firearm regulation under the CCW statute is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.

 Conclusion

For the foregoing reasons, we sustain Mr. Storms’ assignment of error, reverse the trial court’s judgment, and remand the cause for further proceedings consistent with this opinion.

Information for this article was obtained from State v. Storms, 2024 – Ohio – 1954.

State v. Storms, 2024 – Ohio – 1954 was issued by the First District Appellate Court on May 22, 2024 and is binding in Hamilton County, Ohio.

Lessons Learned:

  1. Nation’s historical tradition of firearm regulation What impact does this case have in Hamilton County, Ohio and the other eighty-seven counties? At present there should be no change in enforcement of O.R.C. §2923.111 and O.R.C. §2923.12 – the two statutes that limit firearm possession by convicted felons.  The First District Appellate Court sent this case back to the trial court to apply New York State Rifle & Pistol Assn. v. Bruen, 597 U.S. 1 (2022), specifically the doctrine established the“Nation’s historical tradition of firearm regulation.”.  In other words, if the founding fathers did not limit firearm possession by felons that should be considered when evaluating if Ohio’s firearm laws are constitutional.  At present Hamilton County and the rest of Ohio wait for this case to be evaluated by the trial court and most likely the First District Appellate Court again and the Supreme Court of Ohio.  I strongly encourage officers, deputies and troopers to consult their legal advisors for guidance.
  2. Impact on the Future of CCW – The concept of permitting convicted felons to carry firearms runs counter to what the State of Ohio has tolerated from convicts. However, the New York State Rifle & Pistol Assn. v. Bruen, 597 U.S. 1 (2022) changed how the U.S. Supreme Court viewed the Second Amendment as contrasted by the State of New York’s firearm licensing regulations.  Now, applying this same decision against Ohio’s firearm laws may be significant change on who and how convicted felons can carry a firearm.
  3. Thank you!  I would like to thank Lake County Lt. Zak Ropos for sending me State v. Storms to evaluate.   Keep up the great work Lieutenant Ropos!
  4. Hardest Job In America – This case is demonstrative as to why law enforcement is THE hardest job in America and it may get even more challenging. Stay safe and Objectively Reasonable!

Does your agency train on CCW?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and objectively reasonable!

Robert H. Meader Esq.