By Eugene Volokh
“We hold that R.C. 9.68 [the preemption statute] is a general law that displaces municipal firearm ordinances and does not unconstitutionally infringe on municipal home rule authority.” City of Cleveland v. State. The court reversed the Ohio Court of Appeals’ decision striking down the law on state home rule and separation of powers grounds.
The Ohio Constitution provides that, “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary, and other similar regulations, as are not in conflict with general laws.” The Ohio Supreme Court has held that, to be general, a statute must (among other things) “be part of a statewide and comprehensive legislative enactment.” The court of appeals held that the state preemption statute “is not comprehensive, because it leaves a ‘great deal of firearm activity unregulated.’”
But the Ohio Supreme Court concluded — quite sensibly, in my view — that “A comprehensive enactment need not regulate every aspect of disputed conduct, nor must it regulate that conduct in a particularly invasive fashion.” “There is no requirement that a statute must be devoid of exceptions to remain statewide and comprehensive in effect” (quoting another case). Likewise, “the fact that some states have more regulations than Ohio does not warrant a conclusion that Ohio’s statutory scheme for regulating firearms is not comprehensive.”
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The court of appeals also held that the law “violates the separation of powers [under the state constitution] by usurping judicial discretion in the award of attorney’s fees and costs,” and “invites unwarranted litigation and attempts to coerce municipalities into repealing or refusing to enforce longstanding local firearm regulations using the significant burden of financial litigation penalties.” As I blogged when the court of appeals decision was handed down, that can’t be right: It is a proper part of the lawmaker’s business, it seems to me, to decide the remedies available in lawsuits, and whether the remedies should be discretionary or mandatory, even when the consequence is “unwarranted litigation” and the pressure to give in to plaintiffs. The Ohio Supreme Court held that there was no separation of powers violation.
Two of the seven Justices dissented, but I find it hard to understand their argument. They reasoned, quoting an earlier case, that “in order for ... a conflict to arise, the state statute must positively permit what the ordinance prohibits, or vice versa, regardless of the extent of state regulation concerning the same object,” and concluded that there was no conflict warranting preemption because “the Cleveland ordinances do not conflict with R.C. 9.68, because they does not permit something that the statute forbids or vice versa.” But how could this be so?
Rev. Code 9.68 provides that, “Except as specifically provided by the United States Constitution, Ohio Constitution, state law, or federal law, a person, without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.”
Cleveland ordinances barred or required further process or restriction for some possession and transfer of guns, even beyond what state or federal law provided — according to the Court of Appeals opinion, city ordinances covered “possession of firearms by minors,” “possessing deadly weapons on public property,” “possessing certain weapons at or about public places,” “prohibiting children access to firearms,” “prohibiting possession and sale of assault weapons,” and “registration of handguns.” The city apparently “[did] not argue” before the Ohio Supreme Court “that its local firearm ordinances do not conflict with R.C. 9.68.” Sounds like the city ordinances “[forbid] something that the statute [permits].” What am I missing here?