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Thread: 2A applies to carrying guns in cars, says Court of Appeals

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    Campaign Veteran skidmark's Avatar
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    2A applies to carrying guns in cars, says Court of Appeals

    http://www.washingtonpost.com/news/v...-guns-in-cars/

    So say two of the three judges on an Ohio Court of Appeals panel, in State v. Shover(Ohio Ct. App. Feb. 5, 2014) (Carr, J., concurring in the judgment, with Hensal, J., agreeing on this score) (some paragraph breaks added) — and generally quite correctly, it seems to me:

    I concur in judgment only on the basis that I would conclude that the individual right to bear arms contained in the Second Amendment extends to motor vehicles….

    Because the statutes at issue in both Heller and McDonald dealt specifically with handgun restrictions within the home, the court’s central holdings in those cases “did not define the outer limits of the Second Amendment right to keep and bear arms.” However, the Heller court did undertake a careful and deliberate analysis of the meaning of both the prefatory and operative clauses of the Second Amendment, and concluded that the amendment, at its core, ensured the individual right of all Americans to have and carry weapons in case of confrontation. Heller, 554 U.S. at 579–603. While the court acknowledged that the right was not unlimited, it repeatedly emphasized that the Second Amendment secured an individual right that existed outside the context of an organized militia, and that the individual right to bear arms existed for self-defense purposes. Undoubtedly, in light of the Supreme Court’s decision in Heller, “[t]he Second Amendment … is now clearly an important individual right, which should not be given short shrift.”
    Congratulations, Ohio.

    stay safe.
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    Moderator / Administrator Grapeshot's Avatar
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    +1

    So it should be everywhere.
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    State v. Shover, 2014-Ohio-373

    Cite as State v. Shover, 2014-Ohio-373
    http://www.supremecourt.ohio.gov/rod...4-ohio-373.pdf 18 pages 73 KB
    Last edited by Nightmare; 02-09-2014 at 09:30 AM.
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    Accomplished Advocate color of law's Avatar
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    {¶15} Based upon this reasoning, we conclude that if the Second Amendment right to keep and bear arms does extend to motor vehicles, intermediate scrutiny would apply to R.C. 2923.16(B), and R.C. 2923.16(B) would pass constitutional muster.
    {¶16} Accordingly, Mr. Shover’s first assignment of error is overruled.
    Somebody must be reading another case than me.

    2923.16 Improperly handling firearms in a motor vehicle.
    (B) 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.
    Shover argued he could carry the gun inside the passenger compartment. The court said no.
    Last edited by color of law; 02-09-2014 at 10:52 AM.

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    My reading of the opinion is they said there is a right to carry a handgun in a motor vehicle, but used intermediate scrutiny to reach the opinion. He was convicted because he didn't have a carry permit.

    So the jist of the whole thing is it is constitutional to carry a loaded handgun in a motor vehicle with a carry permit.

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    Here, we follow the Fourth Circuit’s reasoning, and decline to address whether the Second Amendment right to keep and bear arms applies outside the home. As in Masciandaro , this matter does not necessitate that we reach beyond the law set forth in Heller and McDonald.
    This doesn't sound like the Second Amendment is being extended to motor vehicles.
    Last edited by RT48; 02-09-2014 at 06:41 PM.

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    So for people with no valid-in-Ohio permit, it's still necessary to do the Wisconsin dance to carry openly.

    Ugh. And what a f***ing crock.
    Last edited by SteveInCO; 02-09-2014 at 09:15 PM.

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    I have been following this case since the original remand. While it is interesting that the two most conservative judges wanted to clearly designate a Second Amendment right to carry a firearm in a motor vehicle, that is not really what the case was about. It was bait to get a commitment from a trial court on the applicable standard of review.

    In the original opinion, Judge Belfance, the most progressive judge on the Court, remanded the case to the trial court for the trial judge to clearly state the standard of review under the Second Amendment. State v. Shover, 2012-Ohio-3788 (9th Dist.) Much excitement was had in the gun forums, hoping that the trial court would announce a strict scrutiny standard, but I knew better. The trial court announced an intermediate scrutiny standard, which was still higher that the minimal scrutiny “rational basis” standard announced by the Ohio Supreme Court when it decided 20 years ago that the Article I, Section 4 of the Ohio Constitution granted a fundamental individual right to keep and bear arms, 15 years before the United States Supreme Court made the equivalent announcement about the Second Amendment. Arnold v. Cleveland, 67 Ohio St.3d 35 (1993).

    The appellate judges agreed on the standard of review. Judge Moore (who concurred with Judge Belfance in the original opinion) said that was enough to decide the case. While the other two judges concurred in that conclusion, they also wanted to announce a Second Amendment right to carry a firearm in a motor vehicle. However, that conclusion was not necessary to resolve the case, so it's largely dicta.

    There appears to be a trend emerging under the Second Amendment case law which will not be popular here: a bifurcation of the right to keep and bear arms. Some courts may be willing to require strict scrutiny review of laws affecting the right to keep arms, but it seems that most courts are only willing to extend intermediate scrutiny review to laws which affect the right to bear arms.

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    Quote Originally Posted by SteveInCO View Post
    So for people with no valid-in-Ohio permit, it's still necessary to do the Wisconsin dance to carry openly.

    Ugh. And what a f***ing crock.
    Without a license to carry concealed in Ohio, the gun must be unloaded while in or on a vehicle.

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    What has happened is groups like the NRA have effectively brainwashed not only the public but the legal community that the second amendment is not a right but a privilege.

    This is and will remain a problem that society considers the right to bear arms metered by privilege cards.
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    Quote Originally Posted by WalkingWolf View Post
    What has happened is groups like the NRA have effectively brainwashed not only the public but the legal community that the second amendment is not a right but a privilege.

    This is and will remain a problem that society considers the right to bear arms metered by privilege cards.
    Follow the money to Privileges for Permitees - P4P
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    Quote Originally Posted by pirateguy191 View Post
    Without a license to carry concealed in Ohio, the gun must be unloaded while in or on a vehicle.
    As I understand it, it also has to be in the trunk. The "Wisconsin dance" is getting out of your car, going to the trunk, loading the gun--all out of sight of passers-by so you don't get hit with "brandishing" because its in your hands... then quickly holster it.

    Like I said, what a crock.

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    Quote Originally Posted by SteveInCO View Post
    As I understand it, it also has to be in the trunk.
    Then you don't understand it.

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    Quote Originally Posted by skidmark View Post
    Congratulations for what?

    The court says (supposedly) that you can exercise your RIGHT by getting a privilege card? How many other RIGHTS does one have to pay to exercise?

    Methinks someone(s) misread the court's conclusion.

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    Quote Originally Posted by SteveInCO View Post
    As I understand it, it also has to be in the trunk. The "Wisconsin dance" is getting out of your car, going to the trunk, loading the gun--all out of sight of passers-by so you don't get hit with "brandishing" because its in your hands... then quickly holster it.

    Like I said, what a crock.
    Yea, we don't have to dance and there is no brandishing in Ohio.

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    OK then I am *seriously* bewildered right now. Several months ago I asked right here, about this very issue. I was told then that if I do not have a CCW permit that is valid in Ohio, then in order to open carry there, I had to take the gun off while in my car, and that the usual method was the "Wisconsin dance" I described above.

    In fact I didn't even know the term "Wisconsin Dance" until someone in Ohio used it in answering my question. Your answer sounds like the situation if you DO have an Ohio-recognized concealed carry permit.

    Did the law change in the last few months? Or were all those folks wrong?

    http://forum.opencarry.org/forums/sh...ian-transition

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    A guy in Tennessee told the guy in Colorado about the Wisconsin dance being required in Ohio, but he didn't say it needed to be in the trunk

    And you were quoted the law
    The trunk is an option, but not a requirement

    If you choose to, you can put the gun in a gallon zip freezer bag and the loaded magazine in a zip lock sandwich bag inside the gallon bag with the gun and be legal.
    Transporting the gun requires it to be empty and in a closed case, with the ammo/loaded mag in a separate closed case.

    If you make it to Columbus look me up
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    Last edited by Chuck!; 02-14-2014 at 06:57 AM.

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by Chuck! View Post
    A guy in Tennessee told the guy in Colorado about the Wisconsin dance being required in Ohio, but he didn't say it needed to be in the trunk
    --snipped
    Tennessee > Colorado + Wisconsin = Ohio - trunk. We may get there by going around the block, but the destination is the same.
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    It looks like I got some details wrong by reading too much into what people were saying.

    Fair enough.

    It's still unlawful for me to wear my loaded gun in my car in what ought to be considered "open carry" by a traditional open carry state (such as both CO and OH). Even Colorado for all the $#!+ we have had dumped on us this last year, recognizes this. I still have to get out of the car and go through a rigamarole of actually handling the gun publicly (i.e., while outside the car) to tool up when I get to my destination. It just doesn't have to be in the trunk or in a fancy case. BFD. It's still a ******* crock.
    Last edited by Grapeshot; 02-14-2014 at 11:35 AM. Reason: No F-bombs please, even disguised

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    Regular Member Chuck!'s Avatar
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    Yep
    Like I said, I'll buy the coffee,,,,

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    Here's a 2nd amendment zone: from where ever I am including a 100,000,000,000 foot radius area

    people who disagree should stay 1 foot out of the zone
    Last edited by davidmcbeth; 02-14-2014 at 04:48 PM.

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    Quote Originally Posted by SteveInCO View Post
    It's still unlawful for me to wear my loaded gun in my car in what ought to be considered "open carry" by a traditional open carry state (such as both CO and OH). Even Colorado for all the $#!+ we have had dumped on us this last year, recognizes this. I still have to get out of the car and go through a rigamarole of actually handling the gun publicly (i.e., while outside the car) to tool up when I get to my destination. It just doesn't have to be in the trunk or in a fancy case. BFD. It's still a ******* crock.
    OK, Steve. That's fine. So if I go to Colorado, I can have a loaded firearm in the vehicle. Of course, I cannot carry concealed in the State of Colorado. But what if I want to get out of the car and carry openly when I visit our son in the City and County of Denver? What if I want to carry openly when I take my grandchildren to one of their nearby parks in the City of Englewood?

    Here's a hint: It wouldn't happen to you if you were carrying openly in the State of Ohio because our preemption statute covers more than just motor vehicles.

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    Quote Originally Posted by Werz View Post
    OK, Steve. That's fine. So if I go to Colorado, I can have a loaded firearm in the vehicle. Of course, I cannot carry concealed in the State of Colorado. But what if I want to get out of the car and carry openly when I visit our son in the City and County of Denver? What if I want to carry openly when I take my grandchildren to one of their nearby parks in the City of Englewood?

    Here's a hint: It wouldn't happen to you if you were carrying openly in the State of Ohio because our preemption statute covers more than just motor vehicles.
    That's right - OTHER things would happen to you in Ohio!

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    Quote Originally Posted by Werz View Post
    OK, Steve. That's fine. So if I go to Colorado, I can have a loaded firearm in the vehicle. Of course, I cannot carry concealed in the State of Colorado. But what if I want to get out of the car and carry openly when I visit our son in the City and County of Denver? What if I want to carry openly when I take my grandchildren to one of their nearby parks in the City of Englewood?

    Here's a hint: It wouldn't happen to you if you were carrying openly in the State of Ohio because our preemption statute covers more than just motor vehicles.
    Oh that's a f***ing crock too, particularly Denver, since our state constitution should scotch their ******** by any reasonable reading. However we had judges reading it, so a reasonable reading was not in the cards. Anyhow I certainly don't deny the situation you are describing is also a f***ing crock. But then I wasn't trying to compare our two states with the goal of claiming yours sucks worse than mine, I was simply pointing out something that does suck.

    But since you for some reason seem to want to turn this into a "your state sucks so mine doesn't" contest (and you've done this before in another conversation we had in the past, if I recall correctly), here goes.

    You claim your preemption statute is more wonderful than ours because it covers "more than just motor vehicles." That's kind of hard to assess, actually. If it covered motor vehicles PLUS some other things, then we know it covers more. But it doesn't cover motor vehicles AT ALL. Well yes it (or rather some other part of ORC) does. It positively FORBIDS carry in a motor vehicle and FORBIDS having a loaded firearm in a vehicle even in a container out of reach of anyone in the vehicle. (Unless of course you have an Ohio-recognized permit.) Pre-emption is a wonderful thing when it *prevents* someone from passing a restriction. Of course our legal system tends to presume pre-emption in the opposite direction--if the state government says "oh no you don't," generally lower governments can't say "yes, go right on ahead."

    The reason I find this car thing particularly irksome is it would mess with me no matter where I went in Ohio. Here in Colorado, I can avoid parks. I can avoid government buildings. And I at least can certainly avoid the city and cesspit of Denver--though it sucks that you cannot when you come here. (Of course I can cover here should I need to go to any of these places, but that's beside the point.)

    But it's pretty damn hard to avoid cars in either state. With "no carry in cars" AND "no loaded guns in cars" I have to handle my firearm repeatedly, quite possibly in plain view depending on circumstances, not just picking it up but manipulating it, introducing greater risk of an accident. There is a reason ranges want you to point a gun down range while loading it.

    There is also the risk of someone seeing me do all this, and deciding to make a scene. I quite frankly don't need the hassle of dealing with someone who freaked out because I was handling a gun unnecessarily (except in the eyes of whatever idiot wrote this law), even if the cops do the right thing and blow off the complainer.

    [Even though the trunk method is not required (as I thought it was until corrected), it at least has the virtue of giving you a way to do a lot of this rigamarole out of sight--at the cost of leaving you unarmed for extra time.]

    And all of that is for utterly no reason other than a glaring inconsistency in your open carry state-wide statutes. One needs a concealed carry permit to do some forms of open carry. I can't get away from it except to avoid the entire state.

    As I've pointed out before, all that needs to be done to fix this for the both of us is for Ohio to recognize the Colorado permit. That would actually fix BOTH of our problems as Colorado would then automatically recognize the Ohio one. Colorado is a lot more generous than Ohio in that regard. Yeah, neither of us would necessarily be OPEN carrying all the time, but we'd be carrying and that's at least 90 percent as good.

    As I said before, I wasn't trying to make this a "Ohio sucks worse than Colorado because..." but you seemed to think that a valid response to my complaint was "nyah nyah well Colorado does...." You have my sympathies about what Colorado does. (We had a wrongly-decided lawsuit by someone from Washington State who was in your situation with respect to Denver.) But your complaint in no way actually devalues mine (and mine does not devalue yours), though you seem to think it does.

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    Go easy on Werz, SteveInCO.

    He just misses eye95.
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