Can you be arrested for possessing an unloaded gun in your home after you’ve been drinking? Yes, according to the Ohio State Supreme Court, which issued a 4-3 ruling on Wednesday upholding the arrest of a Clermont County man on charges of carrying a firearm while intoxicated.
The law “is a targeted restriction that prohibits a narrow range of conduct (carrying or using a gun) for a very limited period of time (while someone is in a state of intoxication) due to the inherently dangerous nature of carrying or using a gun while in that state,” Chief Justice Maureen O’Connor said, writing for the majority.
At about 4 a.m. Clermont County sheriff’s employees were called to Weber’s Felicity home on Feb. 17, 2018. Weber’s wife had called 911 to say Weber was intoxicated and had a gun, according to the court website.
When the deputies arrived, Weber’s wife said everything was fine and Weber had put the gun away. However, Weber then came through a doorway holding a shotgun by the stock with the barrel pointed down. He told them he had unloaded it to clean it. Deputies confirmed it was.
Weber told the deputies he was drunk. They said his speech was slurred and he was unsteady on his feet. They described him as highly intoxicated.
The deputies charged Weber with a misdemeanor charge of carrying or using a weapon while drunk. He was convicted and has appealed.
In his appeal to the state Supreme Court, Weber’s attorneys argued that ““should any citizen in this state choose to maintain an armory in the home and, from time to time, consume alcohol or otherwise become intoxicated in that home, such conduct should not be a violation of law.”
I would certainly agree with that, but prosecutors say Weber wasn’t charged merely for drinking with guns in the home, but for not acting in a “virtuous manner” when he combined alcohol and firearms.
The prosecutor also says this doesn’t violate Weber’s Constitutional rights because it’s not a complete ban.
“This statute does not, as [Weber] suggests, prevent someone from drinking to the point of intoxication in their own home while they own a gun – section 2923.15 does not contain the words ‘have,’ ‘own,’ or ‘possess.’ [Weber’s] slippery slope specter of the responsible gun owner drinking in their own home where a gun is safely stored and waking up to find themselves facing a misdemeanor charge will simply never materialize,” the office’s brief states.
In its decision the state Supreme Court determined that the state statute used to arrest Weber was constitutional, given the narrow range of prohibited activity in question. The Court noted that under the law in question, Ohioans can actually consume alcohol while they’re carrying, they just can’t drink enough to become intoxicated.
While the case was decided 4-3, the dissents focused more on the standard of judicial review used by the state Supreme Court and not on the merits of Weber’s claims. The dissenting judges argue that instead of an interest-balancing test to determine the standard of review (in this case, the Court settled on intermediate scrutiny instead of the strict scrutiny), the courts hearing Weber’s case should have used the “text, history, and tradition” test that justices like Brett Kavanaugh and Amy Coney Barrett have articulated.
Even with that standard, the dissenting judges didn’t go so far as to say that Weber’s rights were violated. One judge agreed with the ultimate verdict but disagreed with how the Court got there, while the other dissenting judges would have remanded the case back to the appellate court with the instruction to use the text, history, and tradition test instead of applying intermediate scrutiny.
If this had been a case of Weber using his gun in self-defense while intoxicated in his home, the Court may have ruled differently, but that’s not what this case was about. Instead, his spouse called police because she said she was scared about her drunk husband wandering through their home with a shotgun.
Another issue for Weber’s cause was the evidence (or lack thereof) presented by Weber’s attorneys in his defense. Even the judges who dissented from the majority opinion noted that the “scant briefing” by Weber’s defense team failed to provide the historical evidence necessary to back up their position.
Those dissenting judges take the Second Amendment seriously, but they each have some serious problems with how Weber’s case was presented. Perhaps the U.S. Supreme Court would overlook those same flaws if they’re asked to hear the case, but in the meantime Weber’s misdemeanor conviction and the Ohio law still stand.