The views expressed in this article are those of the author and do not necessarily reflect the views of Gunset Training Group or its affiliates.
Click HERE to view the original post on the GunSnobbery Blog
Author’s note: this is part 1 in a series of educational posts I am going to write about State of Ohio and federal weapon and firearm laws. This post does not offer legal advice. I am not a lawyer. I am certified to teach weapon laws in the Basic Police Academy so I’ve spent quite a bit of time studying Ohio’s laws. More than anything, this series of posts is an attempt to educate people on portions of the law and to show them where they can find the laws so that they can educate themselves further. Please consult with an attorney who specializes in firearms and weapons law if you have questions that require a legal opinion. And remember, not all attorneys are created equal. And keep in mind that laws, interpretations of laws and definitions change. So what was current at the time I published this article may have changed over time.
Over 3 years ago, I wrote an article about an Ohio gun owner who got screwed by their attorney. After writing that article, I made the decision to write a series of educational articles about Ohio and federal firearm and weapon laws. I’ve been remiss in writing those articles, so I decided it’s time to rectify that. I started a different article to kick this series off, but decided it would be smarter to hold off on that article and start with an article that lays the foundation for the rest of them. This article will focus on the foundations of Ohio weapon laws. We can’t intelligently discuss Ohio’s weapon laws without touching on federal law because Ohio has incorporated, to a certain extent, some federal laws into the state laws.
Everyone reading this probably knows that our right to own firearms is based, partially, on the Second Amendment that’s found in the Bill of Rights. But Ohio, like most states and commonwealths in the U.S., have something similar in their state or commonwealth constitutions. If you’re an Ohioan, have you read Article 1, Section 4 of the Ohio Constitution? It’s actually a much better version of the Second Amendment, if you ask me.
Our neighbors in the Commonwealth of Kentucky are very clear in their Bill of Rights that certain rights are “inherent and inalienable”. One of those rights being the right to bear arms “in defense of themselves and of the State”.
Although the Ohio Constitution clearly states that Ohioans have the right to, “bear arms for their defense and security”; that right, like other rights, is not without limitation. For example, over 20 years ago in Klein v. Leis (a case that dealt with Ohio’s concealed carry law), the Ohio Supreme Court clarified something important when it came to Ohioans’ gun rights. The Court ruled that although the Ohio Constitution clearly gave Ohioans a right to bear arms, the State could regulate the manner in which those arms were beared. This decision led to a host of open carry marches to educate people about the legality of open carry and also an effort to pass a new concealed carry (CCW) law that provided a means to carry a concealed handgun with a concealed handgun license. The efforts were successful and in 2004, the new law went into effect. Since 2004 there have been a host of laws and court rulings that have provided more clarity to Ohio’s open carry and concealed carry laws and weapons laws in general.
Why was it important for Ohio to revise their CCW law? Prior to 2004, if someone felt the need to carry a concealed handgun for protection, they had to be able to justify it, if they were ever caught, as an “affirmative defense”. Which meant they had to admit they were carrying a concealed weapon and then try to argue they were prudent in doing so, which would (hopefully) keep them from being charged or convicted of a CCW violation. A very subjective way to do it, in my opinion. Fortunately, that is all behind us.
Probably the most important piece of Ohio firearms legislation passed in the last 25 years was the passage of House Bill 347 in 2007, which created Ohio Revised Code 9.68. 9.68 made it very clear that state law preempted any local laws and that local jurisdictions could not create firearms laws that were more restrictive than state law (it did allow for local zoning laws). Cities like Columbus and Cincinnati have been fighting the constitutionality of 9.68 in court for years. The Ohio Supreme Court has consistently ruled against those cities and upheld the constitutionality of 9.68.
9.68 also made it clear that “carrying” included both open and concealed carry.
Why did the cities fight 9.68? Well, most cities have their own local ordinances and many of them included a local version of a carrying concealed weapons statute. Some included restrictions on magazines over certain capacities or on “assault weapons”. Politics get involved with those ordinances and cities don’t like to be told “no”. Imagine trying to drive from Cincinnati to Cleveland along I-71 if each and every city you drive through could enact their own gun laws. It would be almost impossible to do without breaking some sort of law. No, 9.68 was desperately needed.
Now that we’ve established the constitutional background of Ohio weapon laws, let’s get into the restrictions and requirements of those laws (and the federal laws that play a part). Most of Ohio’s weapon related laws are found in Chapter 2923 of the Ohio Revised Code. On the federal side, many of the firearm related laws that normal people would deal with are found in 18 U.S.C. 922.
When it comes to anything weapon law related, one of the most important things that people need to understand is that definitions are important. Federal definitions can be found many places, like here and here in the Code of Federal Regulations, 18 U.S.C. 921 and 26 U.S.C. 53, to name a few. State definitions (for the most part) can be found in Ohio Revised Code 2923.11. And this is where things start to get interesting. For example, the definitions of some “common” terms (at least you would think they are common terms) are either different from state to federal law or they don’t exist in both sets of laws. Or, the definition is in some obscure place you’d never think to look.
For example – let’s start with what IS a firearm? Well, it depends on what set of laws we’re talking about. The definition is different between federal and state law. Federal law specifically excludes “antique firearm” under its definition of “firearm”. Here is one of the definitions in the Code of Federal Regulations:
What’s an antique firearm, you ask? Good question. It covers more than you would think.
But wait, there’s more!! In 26 U.S.C. 5845 there’s a different definition of firearm for use in that section:
What does Ohio state law say about what a firearm is? It’s quite a bit more general:
The discrepancy between state and federal law with this particular definition can get people in trouble. Why? Because it is a commonly held belief that citizens who are prohibited from owning firearms under federal law can still buy and hunt with black powder weapons (an antique firearm). And it is a correct belief, if we are strictly talking about federal law. However, under Ohio law, black powder weapons are still considered firearms. Because of this, one could be not guilty of a federal law violation, but guilty of a state law violation. This type of discrepancy has led to criminal convictions and civil liability. Just ask Cabela’s. What?
Years ago, Cabela’s used to sell black powder guns through the mail. Which is completely legal under federal law. Tragically, a convicted felon purchased one of these mail order black powder guns and used it to murder a young man from northeastern Ohio named Bryan Galliher. Bryan’s family sued Cabela’s for violating Ohio law by selling the black powder gun to a convicted felon. After losing an appeal, Cabela’s settled with the family out of court and stopped selling black powder guns through the mail.
Here’s another example of definition discrepancies: what makes a shotgun a shotgun? The gauge? Under federal law, two general things make a shotgun a shotgun. It’s designed to be fired from the shoulder and it has a smooth bore.
But once again, 26 U.S.C. 5845 has a slightly different definition:
But the gist is still – shoulder fired and smooth bore. So what if my 870 has a rifled barrel on it, is it a rifle under federal law? You decide:
How about state law? What’s a shotgun under state law? Good question. 2923.11(F) talks about shotguns, but doesn’t define them.
So how am I to know what a shotgun is under Ohio law? Well, it took me years to find an Ohio definition, but I finally found one and it wasn’t in the Ohio Revised Code, but under Ohio Administrative Code 1501:31-1-02, which deals with hunting regulations. If there’s another one, I haven’t found it. And trust me, I’ve looked.
So what’s the big deal? Well, if you look at the definitions again, you’ll notice that Ohio includes both smooth bore and rifled barrels in their shotgun definition, the exact opposite of the federal definition. There is also a minimum barrel length included in some of those definitions. And that minimum length is different between rifles (16”) and shotguns (18”). So, theoretically at least, someone could have a 12 gauge deer gun with a rifled barrel that’s 16” long and probably be fine under federal law, but still be in violation of Ohio law because the 16” barrel makes it a “sawed off” firearm under Ohio’s definitions, which makes it a “dangerous ordinance”, which makes it a felony to possess without the appropriate license.
Are you ready to pull your hair out trying to keep all of this straight? Let me show you one more (fortunately this has been fixed) example of how misunderstanding a definition can get people in trouble.
For many years, Ohio law considered any firearm that was “designed or specially adapted to fire more than thirty-one cartridges without reloading” as being an “automatic firearm”. Why is that a big deal? Well, it meant that anyone who put a loaded to capacity 33 round Glock magazine in their Glock or a loaded to capacity 75 round drum in their AK became a felon as soon as they did so because they just created a “dangerous ordinance” under Ohio law. Which requires a license. Which they almost certainly did not have. Fortunately, this little hiccup in Ohio law was fixed in 2015.
Hopefully, I’ve set the stage for the rest of these articles. Each article will almost certainly refer back to some of the definitions in Ohio or federal law. It is almost impossible to avoid. I encourage you to spend some time looking over the different definitions. The next article will be about Ohio’s permit-less carry or “constitutional carry” law.