The Ohio Supreme Court will decide if a state law that says gun owners can’t use their weapons while drunk is constitutional.
“Intoxication in and of itself is not a crime,” said Steve Palmer, who represented Frederick Weber before the Ohio Supreme Court.
In 2018, Weber’s wife called the Clermont County Sheriff to report that he was drunk and had a firearm. Though it was unloaded, Weber was convicted of carrying or using a weapon while drunk and got a 10-day suspended jail sentence and a year on probation.
Palmer maintains there was no reason for that, because Weber is a law abiding citizen possessing a gun.
“I think this gentleman, as he’s standing there, has every right under the Second Amendment in his own home, intoxicated or not, to be holding on a firearm,” said Palmer.
Palmer said Ohio’s law could be used to convict any gun owner who got drunk at home, which is a violation of the Second Amendment to the U.S. Constitution. Chief Justice Maureen O’Connor seemed a bit incredulous.
“In the home, whether you’re sober or not, whether you’ve got a gun that is loaded or not, there is no law that is broken," O'Connor said.
Palmer responded, “That’s correct, assuming the gun is lawful and the conduct is lawful.”
O’Connor said, “Ok. But imagine the ramifications that that kind of opinion would have.”
Palmer admitted that handling a weapon while drunk, especially when others are in the house, isn’t prudent, but he said the state can’t intervene when a gun owner is in his home.
The justices pressed Palmer several times on whether the state should be able to regulate that potentially unsafe behavior. Assistant Clermont County prosecutor Nick Horton brought that up when questioned by Justice Melody Stewart, using drunk driving as an example.
“Someone who is drinking to the point of intoxication is not necessarily irresponsible. Someone who is driving is not irresponsible. But someone who is drinking to the point of intoxication and driving is irresponsible,” said Horton.
“But driving is a privilege and is not a right,” said Stewart.
“True,” replied Horton. “However, the right is not unlimited.”
And Horton said a drunk gun owner can still have the gun in the home but can’t use or handle it, because he said state lawmakers had the authority to ban people who are drunk from carrying guns even in their homes to protect others.
“The majority of firearm violence takes place inside the home. And we know that, coupled with intoxication, which lowers a person’s ability to self-control, that presents a unique, dangerous situation,” said Horton. “So whether it’s inside the home or outside the home, if it poses a risk to other people, I think that is absolutely the purview of the General Assembly."
But Palmer held firm with Justice Pat DeWine in saying that that Ohio’s law was unconstitutional from the start.
“Alcohol has been a part of this culture since the inception, and to think those in their homes would not consume alcohol and have firearms around seems a little bit of a stretch," said Palmer.
Akron, Cincinnati, Columbus, Dayton, Lima and Toledo have filed paperwork supporting the state law. And the anti-gun violence centers named for Gabby Giffords and Jim Brady submitted briefs sharing research about the dangers of the combination of heavy alcohol use and firearm access. A decision is expected from the Ohio Supreme Court in a few months.
The case comes as lawmakers are still debating Gov. Mike DeWine's STRONG Ohio anti-gun violence proposal. One component is a version of a "red flag" law. It would add chronic alcoholism to the list of reasons to permit involuntary hospitalization of people thought to be a threat to themselves or others.