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Author’s note: this is part 2 in a series of educational posts I am going to write about State of Ohio and federal weapon and firearm laws. Part 1 can be found here. This post does not offer legal advice. I am not a lawyer. I am a Certified Firearm Specialist through the International Firearm Specialist Academy and the State of Ohio certifies me to teach weapon laws in the Basic Police Academy. I’ve spent quite a bit of time studying federal law and Ohio’s laws in 30 years on the job. 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. If you are a law enforcement officer, check with your jurisdiction’s legal counsel for guidance. 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.
Since many of Ohio’s weapon laws have a built in exception for certain people, I thought it best to cover what some people call “Constitutional Carry” beginning with the second article of this series. Almost three years ago, Senate Bill 215 (SB215) became law in Ohio. Some folks say that SB215 established “Constitutional Carry”, but I prefer the term “permitless carry”, which is the term the author of the bill uses. From the many conversations I have had with gun owners and cops since SB215 became law, I have concluded there are some common misconceptions with this law.
First and foremost – to understand Ohio’s permitless carry law, you have to understand the definition of a “Qualifying adult” that can be found in Ohio Revised Code 2923.111(A)(2). If you do not meet the definition of a “qualifying adult”, then you may not legally take advantage of the permitless carry law. If you are a “qualifying adult”, then you have (mostly) the same privileges, restrictions and responsibilities as someone who has been issued a Concealed Handgun License (spelled out in detail in 2923.111(B) and 2923.111(C)).
At first glance, there isn’t much to the definition, right? Well, looks can be deceiving. One reason I am not a fan of how this law was implemented is because the legislature incorporated federal law into Ohio law. This is problematic for law enforcement. Ohio cops aren’t trained in the nuances of federal law, but now we have to understand federal law to enforce state law. And the state has not provided, nor mandated, what I consider to be adequate training on this law.
In the Ohio Revised Code, certain words are very important. “All”, “and”, “or”, “shall” are just a few. Under 2923.111(A)(2), a person has to meet “all” of the listed criteria in order to be a “qualifying adult”. The first criterion is easy – you have to be at least 21 old. The second and third criteria are much more involved and some of the language in the those statutes will require us to take a detour down some side streets as we travel down the road to enlightenment, so bear with me. It’ll be interesting, I promise.
2923.111(A)(2)(b) incorporates parts of federal law – 18 USC 922 – into state law. Federal law is not always easy to read due to how they write it, so I am going to edit 922(g) to make it easier to read. It says, “It shall be unlawful for any person (meeting the criteria listed below) to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” So what’s the deal with the interstate or foreign commerce requirement? Interestingly enough, Congress can only enact laws that regulate firearms and ammunition through their constitutional ability to regulate commerce and enact taxes. So what does that mean? I will try to make this as brief and clear as I can. To have jurisdiction in firearm possession cases, the federal prosecutor has to prove an interstate (as opposed to an intrastate) or foreign “nexus”. Which means they have to prove the firearm or ammunition in question was transported from one state to another or was imported from another country. If they cannot do that, then they cannot use that firearm as evidence to support a federal charge. Here’s an example – HiPoint firearms are made in Mansfield, Ohio. We seize a lot of HiPoints. If a HiPoint pistol is recovered during a traffic stop in Toledo, Ohio and the person who had the pistol was under a federal prohibition, then the prosecutor would have to prove that the HiPoint pistol left the state and came back into Ohio before it could be used to support a federal charge.
So how does the government prove it left the state? Well, the easiest way is to check eTrace. eTrace is a tracking system run by the ATF that allows investigators to track firearms to a certain degree. Here’s a quick breakdown of how it works – when a manufacturer sells a firearm they have to keep track of who they sell it to. They do this by using a unique serial number for each firearm. Often times it goes to a distributor before it goes to a dealer. The distributor has to keep track of which dealer it sells the firearm to. The dealer then has to keep track of who came into the shop and purchased it. So manufacturer>distributor>dealer>individual. When a firearm is used in a crime, the investigator can reach out to ATF and ask for it to be traced. Or, if they have an eTrace account, they can run the check themselves. Once ATF receives the request, they begin the process of tracing the firearm serial number. Depending on the severity of the case, it can take hours or days or weeks. Eventually, ATF will give the investigator a report telling them who the original individual purchaser of the firearm is. Good old detective work comes into play after that. Here’s a personal example – in 2023, my Detectives and I investigated a double shooting. During the course of that investigation (which began with a stolen vehicle), we recovered a pistol in a gas station trash can. We did an eTrace request on it. I believed the pistol was stolen out of a car in the area of the first stolen car, so I had Officers go door to door in the surrounding area asking people to make sure they had all their pistols (if they normally kept one in their car) while we waited for the eTrace results. We didn’t locate the owner during the door to door search, but the eTrace report led us to the owner. Turns out I didn’t widen the door to door search far enough. The owner was one street further out. The owner didn’t realize the pistol was missing from his car until we told him we had it in our property room.
The problem (for investigators) with the eTrace system is that it does not track beyond the original purchase from the dealer. Since there is no state registration of firearms in Ohio, there is no other database to check, unless the pistol was stolen, the owner knew it was stolen, the owner actually knew the serial number and law enforcement entered it into the national database of stolen firearms. Otherwise, you have to find the owner and ask if they remember who they sold it to. If they don’t, then you’re at a dead end.
Another way to prove that interstate nexus would be through the use of NIBIN. Think of NIBIN as a fingerprint system for firearms. Each firearm leaves distinct impressions and tool marks (fingerprints) on the back and sides of a casing when it is fired and extracted. The NIBIN system can match casings from one crime scene to another by checking these impressions and tool marks. So if casing from crime scenes in two different states were matched to the same firearm, one could argue that the firearm in question travelled across state lines.
So what does the government do if the firearm has never left the state and we have no NIBIN hit from another state? Well, then the ammunition itself comes into play even more.
Theoretically.
If a prosecutor wanted to (and they have).
Under federal law, ammunition = firearm. And ammunition = primer or casing or powder or bullet. It does not have to be a loaded cartridge. Meaning an empty casing = ammunition. Since ammunition does not have serial numbers, an investigator can use the headstamps on the casing to figure out where the ammunition was manufactured.
Manufacturers use different shaped letters or the addition of dots or stars or lines or who knows what else to differentiate between ammunition plants. For example, look at the PMC headstamps in the picture below. Notice how the “M”s are shaped differently? I had a case with PMC ammunition a few years ago and they told me the shape of the “M” could tell them which plant the casing came from.
Ok, so we are back to the main part of 922(g)(1)-(9) – who cannot legally possess firearms and/or ammunition. I will label each of the following paragraphs with the corresponding numbered section from 922(g) for easy reference. Before we go any further, I have to point out that some federal appellate courts have ruled that several of these sections are unconstitutional due to the new rules from the Supreme Court regarding how 2nd Amendment issues are addressed. These rules came from the historic Bruen case. Until the Supreme Court rules on these individual sections, they may be in a state of flux.
(1) – a common misconception is that any felony conviction meets the requirement of (g)(1), and that is incorrect. There are some states that have misdemeanors that meet this criterion. In Ohio, no misdemeanors and many felonies do not carry a maximum penalty that is punishable for a “term exceeding one year”. Felonies of the fourth degree would meet this requirement. Felonies of the fifth degree would not. The Third Circuit (federal court) has recently ruled this section as being unconstitutional in some situations. Ohio is in the Sixth Circuit so this decision is not binding.
(2) – a “fugitive from justice” means “any person who has fled from any State to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding.” I think that’s pretty self-explanatory.
(3) – “who is an unlawful user of or addicted to any controlled substance” isn’t as clear of a definition as you may think. To be an unlawful user or addicted means more than just a first time user and may be fact specific to an individual case as opposed to a general rule. This section can be problematic for people who use medical marijuana. The Eighth Circuit has recently ruled that an outright ban for drug users is unconstitutional.
That’s it for now. I’ll try to finish up with 18 USC 922(g)(4)-(9) in the next article……
Authors end note: I cannot stress this enough – the Bruen decision has changed the face of 2nd Amendment jurisprudence and we will be seeing the ripple effects of this decision for years to come. Here is a good article about Bruen.