State v. Storms , 2024 Ohio 1954 ( 2024 )

[Cite as State v. Storms, 2024-Ohio-1954.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230593
TRIAL NO. B-2301954
Plaintiff-Appellee, :
vs. :
O P I N I O N.
CARL STORMS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: May 22, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Norbert Wessels,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michael J. Trapp for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Presiding Judge.
{¶1} The state charged defendant-appellant Carl Storms with carrying a
concealed weapon (“CCW”). Storms, who was on community control at the time of his
CCW arrest, moved to dismiss the indictment, arguing that applying the CCW statute
to him violated his Second Amendment rights under New York State Rifle & Pistol
Assn. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). The state argued
that Bruen did not apply, and the trial court denied Storms’s motion without applying
Bruen.
{¶2} On appeal, the state concedes that Bruen applies to Storms’s motion.
We therefore reverse Storms’s conviction and remand the cause to the trial court to
determine whether Ohio’s firearm regulation under the CCW statute is part of the
historical tradition that delimits the outer bounds of the right to keep and bear arms.
I. Facts and Procedure
A. A prior conviction and outstanding warrant prevented Storms from
carrying a concealed weapon under Ohio law
{¶3} In May 2022, Storms pleaded guilty to attempted failure to comply. The
trial court sentenced him to two years of community control and ordered him to
complete mental-health counseling. After Storms failed to report to probation, the
trial court issued a warrant for his arrest. When Storms was arrested in April 2023, he
had a concealed firearm in his possession.
{¶4} In May 2023, the state indicted Storms on a single count of CCW in
violation of R.C. 2923.12(A)(2). In August 2023, Storms filed a Crim.R. 12 motion to
dismiss. Citing Bruen, Storms argued that the CCW charge against him violated his
rights under the Second and Fourteenth Amendments to the United States
Constitution and Article I, Section 4 of the Ohio Constitution. In his motion, Storms
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noted that while he was otherwise permitted to possess a firearm, the state alleged that
he was prevented from carrying a concealed weapon due to his being a “fugitive from
justice.” Storms argued that the plain text of the Second Amendment presumptively
permitted him to carry a concealed weapon and that there was no historical tradition
consistent with application of the CCW statute to him. The state did not respond to
Storms’s motion.
B. The trial court did not apply Bruen
{¶5} The trial court held arguments on Storms’s motion to dismiss. Storms
argued that Bruen set out the applicable standard and that the plain text of the Second
Amendment covered his conduct. He maintained the burden had therefore shifted to
the state to affirmatively prove that Storms’s charge under the CCW statute was
supported by a historical tradition of firearms regulation.
{¶6} The state, however, repeatedly asserted that Bruen did not apply to
Storms as Bruen was limited to “law-abiding citizens.” The state claimed that it had
no burden to establish historical support for the CCW statute and presented no
evidence in support of the law. Instead, the state argued that Storms was prohibited
under Ohio law from carrying a concealed weapon due to his felony conviction and his
being a “fugitive from justice.”
{¶7} The trial court did not address Storms’s Bruen argument. Instead, it
denied Storms’s motion to dismiss because he was not a “qualifying adult” under R.C.
2923.111 due to his felony conviction and status as fugitive from justice. Therefore, the
trial court determined only that Storms was prohibited from having a concealed
weapon under Ohio law. The trial court held that the state “fulfilled their burden of
showing that the defendant was a fugitive from justice. He is a convicted felon.”
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{¶8} When Storms asked for clarification from the trial court as to the lack of
historical tradition regarding prohibiting “fugitives from justice” from possessing
concealed weapons, the court replied, “it would be the fact that he was on probation. *
* * He tested positive for drug screens. And then he didn’t appear for any of his
appointments and a warrant was out for his arrest.”
{¶9} After the trial court denied Storms’s motion, he pleaded no contest to
the CCW charge. The trial court sentenced Storms to community control and ordered
the firearm to be forfeited to the state. Storms has appealed.
II. Law and Analysis
A. Assignment of error: The trial court erred by denying the motion to
dismiss
1. Standard of Review
{¶10} An appellate court reviews de novo the trial court’s denial of a motion
to dismiss based on a constitutional challenge to a statute. See State v. Campbell, 1st
Dist. Hamilton No. C-120871, 2013-Ohio-5612, ¶ 3. Storms asserts an as-applied
constitutional challenge to Ohio’s CCW statute. Therefore, he must show that the
application of the statute in his case violates his constitutional rights. See State v.
Grevious, 172 Ohio St.3d 171, 2022-Ohio-4361, 223 N.E.3d 323, ¶ 18.
2. The Second Amendment under Bruen
{¶11} The Second Amendment to the United States Constitution, made
applicable to the states through the Fourteenth Amendment, reads, “A well regulated
Militia, being necessary to the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed.” McDonald v. City of Chicago, 561 U.S. 742,
750, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). The Supreme Court of the United States
has held that the Second Amendment protects the right of an “ordinary law-abiding
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citizen” to carry a firearm for self-defense. Bruen, 597 U.S. at 9, 142 S.Ct. 2111, 213
L.Ed.2d 387; see District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 171
L.Ed.2d 637 (2008).
{¶12} In Bruen, the Supreme Court set out the test courts must apply when
analyzing any Second Amendment challenge:
When the Second Amendment’s plain text covers an individual’s
conduct, the Constitution presumptively protects that conduct. The
government must then justify its regulation by demonstrating that it is
consistent with the Nation’s historical tradition of firearm regulation.
Only then may a court conclude that the individual’s conduct falls
outside the Second Amendment’s “unqualified command.”
Bruen at 24.
{¶13} Applying the first step of its analysis, the Bruen Court stated that the
Second Amendment works to “guarantee the individual right to possess and carry
weapons in case of confrontation.” Id. at 32. The Court noted that “Heller further
confirmed that the right to ‘bear arms’ refers to the right to ‘wear, bear, or carry * * *
upon the person or in the clothing or in a pocket, for the purpose * * * of being armed
and ready for offensive or defensive action in a case of conflict with another person.’ ”
Id., quoting Heller at 584. In Heller, the Court observed that there is “a strong
presumption that the Second Amendment right is exercised individually and belongs
to all Americans.” (Emphasis added.) Heller at 581. In Bruen, the Court held that the
Second Amendment’s plain text covered the regulated conduct in that case, which was
“carrying handguns publicly for self-defense.” Bruen at 31.
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{¶14} If the challenger meets the burden to show that the conduct at issue is
covered by the Second Amendment’s plain text, the burden shifts to the state to
“affirmatively prove that its firearms regulation is part of the historical tradition that
delimits the outer bounds of the right to keep and bear arms.” Bruen, 597 U.S. at 19,
142 S.Ct. 2111, 213 L.Ed.2d 387. Confronted with modern regulations “that were
unimaginable at the founding,” the “historical inquiry that courts must conduct will
often involve reasoning by analogy.” Id. at 28. Courts must consider whether the
challenged regulation and the historical analogues provided by the state are
“relevantly similar.” Id. at 29.
{¶15} While not purporting to “provide an exhaustive survey of the features
that render regulations relevantly similar under the Second Amendment,” the Bruen
Court provided two metrics to be considered: “how and why the regulations burden a
law-abiding citizen’s right to armed self-defense.” Id. Because “ ‘individual self-
defense is “the central component” of the Second Amendment Right,’ * * * whether
modern and historical regulations impose a comparable burden on the right of armed
self-defense and whether that burden is comparably justified are ‘ “central” ’
considerations when engaging in an analogical inquiry.” Id., quoting McDonald, 561
U.S. at 767, 130 S.Ct. 3020, 177 L.Ed.2d 894.
{¶16} The Bruen Court stated that its test was “neither a regulatory
straightjacket nor a regulatory blank check.” Id. at 30. But Bruen’s test does require
courts to straddle a fine line:
On the one hand, courts should not “uphold every modern law that
remotely resembles a historical analogue,” because doing so “risk[s]
endorsing outliers that our ancestors would never have accepted.”
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Drummond v. Robinson, 9 F.4th 217, 226 (CA3 2021). On the other
hand, analogical reasoning requires only that the government identify a
well-established and representative historical analogue, not a historical
twin. So even if a modern-day regulation is not a dead ringer for
historical precursors, it still may be analogous enough to pass
constitutional muster.
Id.{¶17} In applying Bruen’s second step, courts should employ a “historical
inquiry,” relying on “ ‘various evidentiary principles and default rules’ to resolve
uncertainties” that courts should resolve “based on the historical record compiled by
the parties.” Bruen at 25, 142 S.Ct. 2111, 213 L.Ed.2d 387, fn. 6. The burden falls solely
on the state to create this record—courts should not “sift the historical materials for
evidence to sustain the state’s burden.” Id. at 60.
{¶18} Finally, the Bruen Court emphasized that historical analogues existing
at or around the time of the passage of the Second and Fourteenth Amendments
provided stronger support for a challenged regulation because “when it comes to
interpreting the Constitution, not all history is created equal. ‘Constitutional rights are
enshrined with the scope they were understood to have when the people adopted
them.’ ” Id. at 34, quoting Heller, 554 U.S. at 634, 128 S.Ct. 2783, 171 L.Ed.2d 637.
“The Second Amendment was adopted in 1791; the Fourteenth in 1868.” Id.
3. Ohio’s CCW law
{¶19} Storms was convicted of CCW in violation of R.C. 2923.12(A)(2), which
provides that “[n]o person shall knowingly carry or have, concealed on the person’s
person or concealed ready at hand, any of the following * * * (2) A handgun other than
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OHIO FIRST DISTRICT COURT OF APPEALS
a dangerous ordnance.” But R.C. 2923.12(A)(2) “does not apply to any person who has
been issued a concealed handgun license that is valid at the time of the alleged carrying
or possession of a handgun.” R.C. 2923.12(C)(2).
{¶20} In 2022, the General Assembly enacted R.C. 2923.111, which states that
a “qualifying adult” is not required to obtain a license to carry a concealed handgun
“that is not a restricted firearm.” R.C. 2923.111(B)(1). A “qualifying adult” is a person
who (1) is at least 21 years old; (2) is not prohibited from possessing a firearm under
federal or Ohio law; and (3) satisfies the relevant criteria under R.C. 2923.125(D)(1),
which governs applications for CCW licenses. R.C. 2923.111(A)(2)(a)-(c).
{¶21} Qualifying adults are treated as though they possessed a concealed
handgun license and may carry a concealed handgun “anywhere in this state in which
a person who has been issued a concealed handgun license may carry a concealed
handgun.” R.C. 2923.111(B)(2) and (3). And under the CCW statute, a qualifying adult
who “is carrying or has, concealed on the person’s person or ready at hand, a handgun
that is not a restricted firearm shall be deemed to have been issued a valid concealed
handgun license.” R.C. 2923.111(C)(1). Thus, if Storms was a qualifying adult, he could
not have been charged with a violation of R.C. 2923.12(A)(2).
{¶22} At the hearing, the state and trial court focused on two CCW license
requirements under R.C. 2923.125(D) that Storms allegedly did not satisfy. Relevant
here, a sheriff shall issue a concealed handgun license if “[t]he applicant is not a
fugitive from justice,” and “the applicant has not been convicted of or pleaded guilty
to a felony or an offense under Chapter 2925., 3719., or 4729. of the Revised Code that
involves the illegal possession, use, sale, administration, or distribution of or
trafficking in a drug of abuse.” R.C. 2923.125(D)(1)(c) and (e). The trial court found
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that both requirements prevented Storms from being a qualifying adult under R.C.
2923.111.
4. The trial court did not apply the correct legal standard
{¶23} On appeal, the state concedes that Bruen sets out the applicable
standard for Storms’s motion, and that the burden shifted to it under Bruen to
affirmatively prove that the CCW statute as applied to Storms is part of the historical
tradition that delimits the outer bounds of the right to keep and bear arms.
{¶24} We agree that Bruen applies to Storms’s challenge, and that Storms
established that his conduct falls under the plain text of the Second Amendment. See
Bruen, 597 U.S. at 32, 142 S.Ct. 2111, 213 L.Ed.2d 387, quoting Heller, 554 U.S. at 584,
128 S.Ct. 2783, 171 L.Ed.2d 637 (“Heller further confirmed that the right to ‘bear arms’
refers to the right to ‘wear, bear, or carry * * * upon the person or in the clothing or in
a pocket, for the purpose * * * of being armed and ready for offensive or defensive
action in a case of conflict with another person.’ ”); see also Range v. AG United States,
69 F.4th 96, 98 (3d Cir.2023) (rejecting the government’s argument that Bruen
applies only to “law-abiding citizens” and holding that the Second Amendment’s
reference to “the people” refers to all people belonging to the national community, not
a subset); Kanter v. Barr, 919 F.3d 437, 452-453 (7th Cir.2019) (Barrett, J.,
dissenting) (noting that excluding those with felony convictions from “the people”
conflicts with the way other constitutional rights referencing “the people” are treated).
Whatever relevance Storms’s prior felony conviction, ongoing sentence for that
conviction, or purported status as a fugitive from justice may have to the Second
Amendment analysis falls under Bruen’s second prong.
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{¶25} Though Storms satisfied his burden under Bruen, the trial court did not
apply Bruen. The trial court appears to have only determined that because Storms had
a prior felony conviction and was also a fugitive from justice, he was excluded from the
definition of “qualifying adult” and therefore prohibited from carrying a concealed
weapon under Ohio law. But the trial court did not address the constitutionality of
Ohio’s CCW statute as applied to Storms under Bruen.
{¶26} We hold that the trial court erred when it failed to analyze whether the
state affirmatively proved that Ohio’s firearm regulation under the CCW statute is part
of the historical tradition that delimits the outer bounds of the right to keep and bear
arms. We therefore sustain Storms’s assignment of error, reverse Storms’s conviction,
and remand this matter to the trial court. The trial court must apply Bruen and
determine whether, as applied to Storms, Ohio’s firearm regulation under the CCW
statute is part of the historical tradition that delimits the outer bounds of the right to
keep and bear arms.
III. Conclusion
{¶27} For the foregoing reasons, we sustain Storms’s assignment of error,
reverse the trial court’s judgment, and remand the cause for further proceedings
consistent with this opinion.
Judgment reversed and cause remanded.
ZAYAS and WINKLER JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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