[Cite as State v. Shover,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 25944

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE SEAN E. SHOVER COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 10 09 2587 (B)

DECISION AND JOURNAL ENTRY

Dated: August 22, 2012

BELFANCE, Judge.

{¶1} Sean Shover appeals from his conviction for improper handling of a firearm in a

motor vehicle. For the reasons set forth below, we reverse the trial court’s denial of Mr.

Shover’s motion to dismiss and remand the matter for further proceedings.

I.

{¶2} Mr. Shover’s father received a call from Mr. Shover’s brother, who said that he

owed a man $20 and that the man had a gun. Mr. Shover and his father drove to Akron to give

Mr. Shover’s brother the money. As Mr. Shover’s brother had been shot before, Mr. Shover’s

father brought a loaded gun along for protection. The two men arrived at a gas station, and Mr.

Shover’s brother entered the back seat of the car. Police, responding to a reported kidnapping,

surrounded the vehicle and ordered the men out. After the men had exited the vehicle, one of the

officers saw the gun between the seats of the car, and Mr. Shover, his father, and his brother

were arrested. 2

{¶3} A jury convicted Mr. Shover of improper handling of a firearm in a motor vehicle

but acquitted him of resisting arrest. The jury could not reach a verdict on the charge of carrying

a concealed weapon, which was subsequently dismissed at the State’s request. The trial court

sentenced Mr. Shover to 18 months of community control and ordered him to pay a $500 fine as

well as court costs. Mr. Shover has appealed, raising six assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT DISMISSING DEFENDANT’S CHARGE OR CONVICTION OF IMPROPERLY HANDLING FIREARMS IN A MOTOR VEHICLE BECAUSE THE CHARGE AND CONVICTION W[ERE] UNCONSTITUTIONAL UNDER THE U.S. CONSTITUTION’S SECOND AMENDMENT.

{¶4} Mr. Shover argues in his first assignment of error that R.C. 2923.16(B) is

unconstitutional in light of District of Columbia v. Heller,

(2008), and McDonald

v. Chicago, ___ U.S. ___,

(2010), because it “does not contain an exception for a

person to transport a loaded handgun when there is a reasonable fear of a criminal attack.”

Heller and McDonald

{¶5} In Heller, the respondent challenged two ordinances: (1) a prohibition on carrying

an unregistered firearm (handguns could not be registered) and (2) a law requiring “residents to

keep their lawfully owned firearms, such as registered long guns, ‘unloaded and disassembled or

bound by a trigger lock or similar device’ unless they are located in a place of business or are

being used for lawful recreational activities.” Id. at 574-575. The Court mentioned a third

ordinance that prohibited an individual from carrying any handgun without a license, but

respondent did not challenge the constitutionality of this ordinance. See id. at 575, 630-631 3

(“Respondent conceded at oral argument that he does not ‘have a problem with ... licensing[.]’”)

(Ellipses sic.).

{¶6} The Court concluded that the prohibition on carrying an unregistered firearm in

the home and the requirement that lawful firearms be rendered inoperable for immediate use in

self-defense violated the Second Amendment. Id. at 635. In reaching this conclusion, the Court

noted that “[f]ew laws in the history of our Nation have come close to the severe restriction of

the District’s handgun ban.” Id. at 629. “[H]andguns are the most popular weapon chosen by

Americans for self-defense in the home, and a complete prohibition of their use is invalid.” Id.

This is because self-defense is “the central component of the [Second Amendment].” (Emphasis

sic.) Id. at 599. “The handgun ban amount[ed] to a prohibition of an entire class of ‘arms’ that

is overwhelmingly chosen by American society for that lawful purpose. The prohibition

extend[ed], moreover, to the home, where the need for defense of self, family, and property is

most acute.” Id. at 628.

{¶7} However, the Court also noted that “the right secured by the Second Amendment

is not unlimited.” Heller,

. The Court stated that its holding should not “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.”

. It also suggested that concealed weapons laws were also permissible. See

;

see also

(“We identify these presumptively lawful regulatory measures only as

examples; our list does not purport to be exhaustive.”).

{¶8} Two years after Heller, the Supreme Court answered the question whether the

Fourteenth Amendment had incorporated the Second Amendment in the affirmative. McDonald, 4

. The Court proceeded to strike down Chicago’s handgun ban that was

substantially similar to the one in the District of Columbia. See

.

The Trial Court’s Decision

{¶9} In the trial court’s journal entry overruling Mr. Shover’s motion to dismiss the

improper handling of a firearm in a vehicle and carrying a concealed weapon charges, it

concluded that, “[b]ecause Ohio has already found that its citizens had the right to bear arms

under its state constitution, the McDonald opinion did not upset the status quo in Ohio.” In other

words, 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. However, the trial court was incorrect because Heller and McDonald indicate that courts

must apply a heightened level of scrutiny to laws infringing upon a Second Amendment right.

Level of Scrutiny

{¶10} When considering Ohio Constitution, Article I, Section 4, the Ohio Supreme

Court has previously concluded that the test for whether a gun control law is constitutional “is

one of reasonableness.” Arnold v. Cleveland,

(1993). The Court

reaffirmed this standard in Klein v. Leis,

,

. Id. at ¶ 14.

{¶11} However, Arnold and Klein set forth the level of scrutiny applicable to gun-

control laws under the Ohio Constitution. See

; Klein at ¶ 5, 13-15. Though

Heller did not set forth the precise level of scrutiny a gun control law would be subject to, it did

reject the notion that the laws would be reviewed under the rational-basis test. Heller,

(rational basis “c[an]not be used to evaluate the extent to which a legislature may

regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double 5

jeopardy, the right to counsel, or the right to keep and bear arms[]”). The Court also rejected an

“‘interest-balancing’” standard set forth by Justice Breyer in his dissent, remarking that the Bill

of Rights itself was the result of interest balancing.

. Instead, as with other

enumerated constitutional rights, laws restricting the right to bear arms are subject to heightened

scrutiny. See

. See,e.g., Johnson v. California,

(2005) (“Under strict

scrutiny, the government has the burden of proving that [a law is] narrowly tailored [to] further

compelling governmental interests.”) (Emphasis added.) (Internal quotations and citations

omitted.); Bd. of Trustees of the State Univ. of New York v. Fox,

(1989)

(noting that, “the State bears the burden of justifying its restrictions” on commercial speech and

showing a “fit between the legislature’s ends and the means chosen to accomplish those ends[]”)

(Emphasis added.) (Internal quotations and citations omitted.). See generally United States v.

Alvarez, ___ U.S. ___,

(2012) (Breyer, J., concurring in judgment)

(compiling cases and discussing the multiple forms of scrutiny that “warrant[] neither near-

automatic condemnation (as ‘strict scrutiny’ implies) nor near-automatic approval (as is implicit

in ‘rational basis’ review)[]”).

{¶12} Ohio courts have not reached any consensus as to the proper level of scrutiny in

the aftermath of Heller. In State v. Henderson, 11th Dist. No. 2010-P-0046,

,

the lead opinion applied intermediate scrutiny. See id. at ¶ 48-49, citing Klein at ¶ 23

(O’Connor, J., dissenting). However, the concurrence disagreed that intermediate scrutiny was

appropriate, Henderson at ¶ 62-64 (Wright, J., concurring in judgment only) (stating that he

would “simply apply[] the long standing principle that statutes are presumed constitutional and

uphold[] the statute due to a complete lack of argumentation and briefing on the determinative

licensure requirement[]”), while the dissent adopted no level of scrutiny but would have found 6

R.C. 2923.16(B) unconstitutional. Id. at ¶ 76-84 (Grendall, J., dissenting). In State v. King, 2d.

Dist. No. 24141,

, the court recited the standard set forth in Klein and Arnold.

Id. at ¶ 22.

{¶13} However, while the Heller court left unresolved the question of precisely which

level of scrutiny should be applied to laws restricting Second Amendment rights, it did hold that

those laws were subject to heightened scrutiny. Accordingly, when considering a Second

Amendment challenge, Heller requires a greater level of scrutiny than that required by Arnold

and Klein. See, e.g., Heller v. District of Columbia,

(D.C.Cir. 2011)

(registration requirements subject to intermediate scrutiny because they do not prevent an

individual from possessing a firearm); see also Ezell v. Chicago,

(7th

Cir. 2011) (concluding that the city’s ban on firing ranges was subject to “a more rigorous

showing than [intermediate scrutiny], * * * if not quite ‘strict scrutiny[]’”); United States v.

Chester,

(4th Cir. 2010) (applying intermediate scrutiny to statute

prohibiting gun possession by person convicted of misdemeanor domestic violence); United

States v. Marzzarella,

(3d Cir. 2010) (prohibition of possession of a firearm

without a serial number evaluated under intermediate scrutiny).

Applying Heller

{¶14} In light of Heller, it is clear that the Second Amendment requires a greater level

of scrutiny for laws that infringe upon its protections than the Ohio Constitution, and, therefore,

the trial court’s conclusion to the contrary was erroneous. Accordingly, we reverse the trial

court’s denial of Mr. Shover’s motion to dismiss and remand the matter. On remand, the trial

court should determine in the first instance whether the Second Amendment right to bear arms

applies in this case, and, if it does, the trial court should then consider and apply the appropriate 7

level of scrutiny to R.C. 2923.16(B) to determine whether the statute violates Mr. Shover’s

Second Amendment rights.

ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED GIVING A JURY INSTRUCTION ON THE DEFENSE OF NECESSITY.

ASSIGNMENT OF ERROR III

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ASSESSING COURT COSTS AGAINST DEFENDANT WITHOUT COMPLYING WITH R.C. 2947.23(A).

ASSIGNMENT OF ERROR IV

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT’S IMPOSITION OF COURT COSTS UNDER R.C. 2947.23(A) WAS DEFECTIVE.

ASSIGNMENT OF ERROR V

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ASSESSING A FINE AGAINST DEFENDANT WITHOUT COMPLYING WITH R.C. 2929.19(B)(6).

ASSIGNMENT OF ERROR VI

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT’S IMPOSITION OF A FINE WAS IMPROPER WITHOUT CONSIDERING DEFENDANT’S ABILITY TO PAY THE AMOUNT OF THE FINE.

{¶15} Mr. Shover’s remaining assignments of error are not ripe for review at this time

because, should the trial court determine that R.C. 2923.16(B) is unconstitutional, they would

become moot. 8

III.

{¶16} The denial of Mr. Shover’s motion to dismiss is reversed, and the matter is

remanded for proceedings consistent with this opinion.

Judgment reversed in part, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

EVE V. BELFANCE FOR THE COURT

MOORE, P. J. CONCURS. 9

DICKINSON, J. DISSENTING.

{¶17} In District of Columbia v. Heller,

(2008), the United States

Supreme Court “consider[ed] whether a District of Columbia prohibition on the

possession of usable handguns in the home violates the Second Amendment to the

Constitution.”

. The Court held that the ban violated the Second Amendment’s

“individual right to bear arms for defensive purposes.”

. Writing for the

majority, Justice Scalia rejected the argument that the Second Amendment protects only a

right to possess and carry a firearm in connection with militia service and concluded that

it guarantees “the individual right to possess and carry weapons in case of confrontation.”

.

{¶18} The Court noted, however, that the right was not unlimited. District of

Columbia v. Heller,

(2008). “[W]e do not read the Second

Amendment to protect the right of citizens to carry arms for any sort of confrontation,

just as we do not read the First Amendment to protect the right of citizens to speak for

any purpose.”

Justice Scalia explained that, historically, “the right was not a right to

keep and carry any weapon whatsoever in any manner whatsoever and for whatever

purpose.”

. The Court identified several “presumptively lawful regulatory

measures,” such as those prohibiting possession of firearms by felons and the mentally ill

and regulations forbidding the carrying of firearms in “sensitive places” such as schools

and government buildings, but noted that the list of presumptively lawful regulations was

not intended to be “exhaustive.”

. The Court in Heller emphasized 10

that “the inherent right of self-defense has been central to the Second Amendment right”

and determined that the District of Columbia handgun ban “amounts to a prohibition of

an entire class of ‘arms’ that is overwhelmingly chosen by American society for that

lawful purpose.”

. It further determined that the prohibition could not pass

constitutional muster under “any of the standards of scrutiny [ever] applied [by the

Supreme Court] to enumerated constitutional rights” because the ban extended to the

home “where the need for defense of self, family, and property is most acute.”

{¶19} Although the United States Supreme Court did not hold that the Second

Amendment right to carry firearms for self-defense extends outside the home, my reading

of Heller leads me to believe that the scope of the right described by Justice Scalia is not

limited to one’s household. In Heller, the Court indicated that a complete ban of useable

handguns in the home would not be constitutional because the “need for defense of self,

family, and property is most acute [in the home].” District of Columbia v. Heller,

(2008). Thus, the Court implied that the right to defend oneself or one’s

family extends outside the home, but that the right may be somewhat more regulated in

areas where the need to defend is less “acute.”

The Court also stated by way of

example that regulations prohibiting the carrying of firearms in “sensitive places” such as

schools and government buildings would be “presumptively lawful.”

.

This language implies that the Second Amendment right to possess and carry a firearm

extends to at least some public places.

{¶20} Two years after Heller, the United States Supreme Court decided

McDonald v. City of Chicago, ____ U.S. ____,

(2010). In McDonald, 11

the Court noted that in Heller it had “held that the Second Amendment protects the right

to keep and bear arms for the purpose of self-defense.”

. The Court in

McDonald held that the Second Amendment right described in Heller is fundamental and

“fully applicable to the States” through the Fourteenth Amendment.

.

The Court noted that the States’ “ability to devise solutions to social problems that suit

local needs and values” is limited by that right, “but by no means eliminate[d].”

. Since the Supreme Court released its decisions in Heller and McDonald, federal

and state courts nationwide have been grappling with Second Amendment challenges to

many different gun control regulations.

{¶21} In Heller, the Court did not indicate what level of scrutiny applied to the

particular laws being challenged, but did offer some guidance for future cases. The Court

seemed to suggest a two-step approach to determine whether a statute violates the Second

Amendment to the United States Constitution. United States v. Marzzarella,

(3d Cir. 2010). First, we must determine “whether the challenged law imposes a

burden on conduct falling within the scope of the Second Amendment’s guarantee.”

If it does, then, according to the Third Circuit, we must “evaluate the law under some

form of means-end scrutiny” to determine its constitutionality.

But see Allen

Rostron, Justice Breyer’s Triumph in the Third Battle Over the Second Amendment,

, 737 (2002) (suggesting that Chief Justice Roberts’ comments

during oral argument in Heller and Justice Scalia’s majority opinion in that case indicate

that the Heller majority believes that “the conventional formulas for applying

constitutional rights, like intermediate scrutiny and strict scrutiny, would be unnecessary 12

in the Second Amendment setting because a more historically oriented approach would

be used.”).

{¶22} In Heller, Justice Scalia rejected the use of the rational-basis test “to

evaluate the extent to which a legislature may regulate a specific, enumerated right [such

as] . . . the right to keep and bear arms.” District of Columbia v. Heller,

,

629 n.27 (2008). Justice Scalia also rejected Justice Breyer’s recommendation that

regulations challenged under the Second Amendment ought to be evaluated using an

interest-balancing test that would permit courts to weigh the constitutional right to bear

arms against the government’s concern for the safety of its citizens.

(“The very

enumeration of the right takes out of the hands of government—even the Third Branch of

Government—the power to decide on a case-by-case basis whether the right is really

worth insisting upon. A constitutional guarantee subject to future judges’ assessments of

its usefulness is no constitutional guarantee at all.”); see also McDonald v. City of

Chicago, ____ U.S. ____,

(2010) (pointing out that, in Heller, the

Supreme Court had “expressly rejected the argument that the scope of the Second

Amendment right should be determined by judicial interest balancing” as state courts

often do to analyze similar state constitutional challenges).

{¶23} Later in McDonald, Justice Alito, writing for a plurality of the Court,

rejected the City’s argument that state and local governments should be able to “enact

any gun control law that they deem to be reasonable” because “different jurisdictions

have divergent views on the issue of gun control.” McDonald v. City of Chicago, ____

U.S. ____,

(2010). Justice Alito wrote that, “[u]nder our 13

precedents, if a Bill of Rights guarantee is fundamental from an American perspective,

then, unless stare decisis counsels otherwise, that guarantee is fully binding on the States

and thus limits (but by no means eliminates) their ability to devise solutions to social

problems that suit local needs and values.”

{¶24} In this case, the trial court relied on Ohio Supreme Court precedent

involving challenges to statutes as violating Ohio’s Constitution to evaluate this federal

constitutional challenge. Mr. Shover moved the trial court to dismiss the charge, arguing

that Section 2923.16(B) of the Ohio Revised Code violates his federal Second

Amendment right. The State did not submit a written response to the motion. On appeal,

neither party has briefed the key issue left open by the United States Supreme Court, that

is, what level of scrutiny applies to this type of challenge. Because I believe that Section

2923.16(B) imposes a burden on conduct falling within the scope of the Second

Amendment right outlined in Heller, I would ask the parties to brief the issue of what test

applies to evaluate whether the statute unconstitutionally impinges upon that right as a

prelude to this Court deciding that question of law. A remand at this time serves no

purpose.

APPEARANCES:

NEIL P. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.