The Second Amendment and People Who Have Past Minor Misdemeanor (No Jail Time Possible) Marijuana Possession Convictions

Ohio Rev. Code § 2923.13 bans gun possession by (among others) anyone who “has been convicted of any offense involving the illegal possession … in any drug of abuse.” (Ohio Rev. Code § 2923.14 allows the person to petition for relief from this disability after the person’s prison, probation, and parole is up, but any such relief is discretionary with the court, and turns on the judge’s opinion about whether the person “appears likely to continue to” lead “a law-abiding life.”) Paul Stone had been convicted in 2006 of possession of marijuana, “a minor misdemeanor” under § 2925.11. How minor, in the state’s view? It can’t lead to any jail time; the only possible penalty is a fine of up to $150, plus possibly community service of no more than 30 hours. It isn’t even treated as “a criminal record” for purposes of employment or licensing questions about the person’s criminal record. But then in 2010, he was indicted for felony gun possession under &sec; 2923.13, based on the minor misdemeanor.

The trial court dismissed the indictment, holding that § 2923.13 didn’t cover gun possession following minor misdemeanor convictions. But State v. Stone (Ohio Ct. App., decided yesterday) just reversed the dismissal of the indictment, and held that Stone could indeed be prosecuted. The court concluded that the text of § 2923.13 indeed covered even minor misdemeanor convictions. And then it held that Stone lost his Second Amendment rights, because of this minor misdemeanor conviction. Here is the entirety of its Second Amendment analysis:

Appellee [i.e., Stone] also urges this court to affirm the trial court’s dismissal based upon the Second Amendment to the United States Constitution, which, pursuant to District of Columbia v. Heller (2008), 554 U.S. 570, protects an individual’s right to possess a firearm. In advancing this argument, appellee acknowledges that this right is not unconditional and points out that Heller identified various forms of reasonable restrictions a state may place upon a citizen’s ability to have a firearm. Appellee submits, however, the limited list of such restrictions does not include, nor is there obvious historical precedent for, legislation that has the effect of completely abrogating a citizen’s right to bear arms as it pertains to a misdemeanant with no criminal record.

Although appellee sets forth strong policy considerations, which might militate in favor of a legislative shift in this area of criminal law, a careful review of the statutory provisions at play in this case demonstrates that the trial court erred in dismissing the underlying indictment. Our analysis and resolution of the issue is controlled by this court’s recent holding in Gex, supra.

In Gex, this court determined that a defendant’s conviction for having a weapon while under disability was supported by sufficient evidence even though the disability was occasioned by minor misdemeanor marijuana possession…. Applying Gex to the case at bar, it is undisputed that appellee was previously convicted of minor misdemeanor marijuana possession in violation of R.C. 2925.11, a drug abuse offense. Appellee’s previous conviction, therefore, constitutes a disability prohibiting him from acquiring, having, carrying, or using a firearm or dangerous ordnance. Because there is nothing in the record indicating appellee was relieved from the disability via the mechanism set forth under R.C. 2923.14, he could be charged, as a matter of law, with having a weapon under a disability. We therefore hold the state’s position is well-taken ….

As a postscript, we again emphasize that appellee’s arguments would be better directed at the General Assembly than the judiciary. Although he claims otherwise, accepting appellee’s position would essentially eliminate the plain language of R.C. 2925.01(G)(1) as it relates to the disability statute — an outcome we must obviously avoid in construing statutes. Read plainly, even though R.C. 2925.11(D) does not create a criminal record, minor misdemeanor possession is still a conviction which is premised upon a statutorily-designated drug abuse offense; to wit, marijuana possession. Both appellee and the trial court are correct that the legislature has demonstrated an intent to lessen the impact of such convictions. Still, until the General Assembly specifically excludes an R.C. 2925.11 minor misdemeanor marijuana possession conviction from the purview of R.C. 2923.13(A)(3) or R.C. 2925.01(G)(1), it will remain a “drug abuse offense” and consequently a “disability” for purposes of R.C. 2923.13(A)(3).

But nothing in the Stone court’s analysis actually dealt with Stone’s argument that § 2923.13 violates the Second Amendment in this sort of case, and Gex, the precedent that the court relied on, didn’t even discuss the Second Amendment. So while Stone specifically made a constitutional argument to the court, the court seems to have rejected the argument simply on the grounds that Stone’s conduct is covered by the statute — without at all considering the possibility that the statute in this case violates the Constitution. (The court doesn’t say that Stone’s argument is somehow unpreserved because he didn’t raise the Second Amendment question below, so I take it that either Stone did make the argument, or that in Ohio courts the prevailing party below may defend the judgment below on any ground reasonably raised by the record. [UPDATE: I have now confirmed that Stone did make a Second Amendment argument in the trial court.])

So it seems that the court is concluding that the Second Amendment doesn’t protect people who have even a minor misdemeanor marijuana possession conviction — not a felony, not a violent misdemeanor, not even a misdemeanor that could yield any time at all in jail, and not anything that involves a finding that the defendant is an illegal drug user right now — without at all explaining why this should indeed be so. Strikes me as pretty hard to defend; or am I missing something here?