The Second Amendment and People with Nonviolent Drug Misdemeanor Convictions

In State v. Tomas (Ohio Ct. Com. Pl. Dec. 7), Marinko Tomas was prosecuted for violating Ohio Rev. Code. § 2923.13(A)(3):

Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if …

(3) The person is under indictment for or has been convicted of any offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been an offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.

Tomas had been “convicted in 1991 of Attempted Trafficking of Marijuana, a first-degree misdemeanor.” The court applied strict scrutiny, and concluded:

[T]he State has no compelling interest in prohibiting this particular defendant from possessing firearms in his place of business and home…. The evidence established that Defendant makes his home and runs his business in a dangerous violent neighborhood and to protect himself and his family [who lived on the premises of the business -EV] from the inherent violence, he keeps guns on the premises.

This Court therefore narrowly holds that R.C. §2923.13 is unconstitutional when a defendant with no felony convictions, possesses firearms in his home or business, for the limited purpose of self-defense.