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March Madness

For those of you interested in college hoops, the number of ways in which you can waste your time has just been increased by one:  in addition to spending countless hours at the office working the bracket pools, you can also go to Bracketmaster.  The site allows you to input various criteria to determine past NCAA tourney results; for example, since 1985, No. 1 seeds are 88-0 in the first round.  Beyond that, though, it gets a little dicey; only four of the seventeen No. 1 seeds from the Big Ten have advanced to the Final Four, where two of them have won.

None from Ohio State,though; in fact, Ohio State hasn't been a No. 1 pick since 1992, where they got bumped in the Elite Eight.  This could be the year, though.  Or not.  There's a guy at my rapid stop who proudly wore a scarlet jacket emblazoned with the years that the Buckeyes won the national championship in football.  He disappeared for a week in January, presumably for the game.  I haven't seen him wearing the jacket since.  Actually, I'm surprised that he didn't take the gas pipe after Ohio State's performance in the Mexican Snack Food Bowl.

So what's that got to do with law?  Nothing.  But this does (and yes, I know I have to work on my transitions):  yesterday I mentioned the DC Circuit Court of Appeals' decision in Parker v. District of Columbia, which held that the 2nd Amendment right to bear arms was an individual right, as opposed to a collective one, i.e., a right that was dependent upon one's membership in a militia.  The ink has hardly dried on the decision before discussion has turned to its effect upon statutes illegalizing the possession of firearms.

This isn't to suggest that lawyers start filing motions to dismiss gun specs on the grounds that their client had a constitutional right to pop a cap in somebody.  Obviously, there's no constitutional hurdle in penalizing the use of a gun in a crime.  But it's certainly arguable that Parker raises a problem with laws prohibiting the carrying concealed weapons.  Those laws were upheld back in 2003 by the Ohio Supreme Court in Klein v. Leis, but that attack was based on the Ohio Constitution's right to bear arms clause.  While the Court did a good job analyzing the state constitutional issue -- noting, for instance, that the first concealed carry law was passed within a few years of the ratification of the state constitution's bear arms clause -- the same analysis couldn't be applied to the 2nd Amendment.  What's more, because of the nature of the state constitutional issue, the Leis court avoided the problem that recognition of the right to bear arms as a fundamental right would entail.  Traditionally, laws infringing upon fundamental rights are subjected to strict scrutiny:  the state must show a compelling interest in doing so, and must show that it has used the narrowest means available.  It's not impossible by any stretch to see concealed weapons laws threading that needle, but the issue's certainly worthy of being raised.

A more potent line of attack might be on the gun specification statutes.  Obviously, no one's going to successfully contend that the 3-year enhancement for brandishing or using a gun during an offense presents constitutional problems, but the 1-year enhancement for possessing a weapon during a crime may be another matter.  To be sure, Federal laws contain plenty of enhancement provisions, but there's a critical difference:  under most Federal laws, a jury has to conclude that the gun was used in furtherance of the crime.  Under Ohio law, there's no such requirement:  if your client is caught with drugs in his kitchen, and he has a gun in the dresser in his bedroom, he's eligible for a 1-year enhancement to his sentence without the state ever having to contend, let alone prove, that the gun had anything to do with the crime.

The last area of Parker's potential application is with regard to weapons under disability statutes, which prohibit those convicted of certain crimes from ever owning a firearm.  Can the state bar someone with a criminal conviction from his constitutional right to bear arms, any more than it could limit his right of free speech or permit warrantless searches of his property?  Again, the strict scrutiny analysis comes into play:  while the state could probably show a compelling interest in prohibiting those convicted of violent crimes from owning weapons, the interest in prohibiting those convicted of possessory drug offenses is much less clear.

This could be jumping the gun, no pun intended:  obviously, a decision of the DC Circuit Court of Appeals is of no precedential effect here in Ohio.  Still, Parker's holding is supported by the more recent scholarship on the 2nd amendment, and the early betting line is that the Supreme Court is finally going to have to tackle the question.  Raising the issue now at least preserves the question for later habeas review.


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