Weber v State of Ohio

pcfixer · Sep 3, 2021

https://www.supremecourt.gov/Docket..._Weber v. State of Ohio Petition for Cert.pdf

QUESTION PRESENTED FOR REVIEW
What is the proper standard of constitutional review of a law that impacts the core value of the Second Amendment—possession and use of a firearm within
the home?

A. Material Facts.
The case arose when Weber’s wife called 911 at approximately 4:00 am on February 17, 2018. She reported that Weber was in possession of a firearm and
intoxicated. Officers were dispatched to investigate.
When they arrived, Weber’s wife told them “everything
was alright,” and he had put the gun away. App. to Pet.
for Cert. 93a. Officers nonetheless entered the house
and saw Weber holding a shotgun, barrel pointing
downward. Id. He told them the gun was unloaded,
and Officers took it from him without incident. Id.
They confirmed it was not loaded, and there was no
ammunition in sight. Officers observed (and evidence
confirmed) that Weber was intoxicated from alcohol.
App. to Pet. for Cert. 93a-95a.

Kharn · Sep 4, 2021

Shouldn't the whole thing be tossed under Caniglia v. Strom?
Wife called 911 for drunk husband with a gun, cops show up, the wife told the cops everything was ok and he'd put the gun away, they entered the house anyway and took his gun.

pcfixer · Sep 4, 2021

Kharn said:
Shouldn't the whole thing be tossed under Caniglia v. Strom?
Wife called 911 for drunk husband with a gun, cops show up, the wife told the cops everything was ok and he'd put the gun away, they entered the house anyway and took his gun.

yes. Good point. I didn't see where Caniglia was arrested or convicted of any crime. The guns were all confiscated without any valid search warrant.

Weber was charged with Using a Weapon While Intoxicated under Section 2923.15 of the Ohio Revised
Code, a misdemeanor offense carrying a possible penalty of six months in jail and a $1000.00 fine. The matter proceeded to trial before a judge in the Clermont
3
County Municipal Court, located in Batavia, Ohio. Weber argued at trial that there was insufficient evidence
to convict him and that Section 2923.15 of the Ohio
Revised Code (as applied in this case) violated his individual right to bear arms under the Second Amendment as established in District of Columbia et al. v.Heller, 554 U.S. 570 (2008). App. to Pet. for Cert. 95a.

The trial court disagreed, declined to declare the
statute unconstitutional, and convicted Weber of the
charged offense. Id. The court imposed a ten-day suspended sentence, placed Weber on community control (probation), and imposed a $100.00 fine. Weber, 2020-Ohio-6832, ¶¶ 2-5.

My question, why the conviction of a crime when the shot gun was unloaded?

jcutonilli · Sep 4, 2021

Kharn said:
Shouldn't the whole thing be tossed under Caniglia v. Strom?
Wife called 911 for drunk husband with a gun, cops show up, the wife told the cops everything was ok and he'd put the gun away, they entered the house anyway and took his gun.

pcfixer said:
yes. Good point. I didn't see where Caniglia was arrested or convicted of any crime. The guns were all confiscated without any valid search warrant.

My question, why the conviction of a crime when the shot gun was unloaded?

Do not evaluate these cases based on superficial perceived similarities between two cases. Each case should be evaluated based on the arguments presented in the case.

This case has nothing to do with Caniglia. Caniglia had to do with entering the home under the "community caretaking" exception. Weber has not challenged the entering of the home.

This case is about whether being drunk is part of the 2A right. They are arguing that the lower courts should not have used intermediate scrutiny to reach their conclusion.

I suspect that most people here would agree that guns and alcohol don't mix. That is what this case is about.

Bob A · Sep 4, 2021

Unloaded weapon in the hands of the intoxicated owner in his home.

What if he'd been holding a broom? A baseball bat? A screwdriver? Almost any damn thing?

There has to be some limit on the police, or else we have to forbid the use of alcohol, as the citizens cannot be trusted to stay sober.

Absent any information regarding the history of husband, wife, and alcohol usage, this is hardly worth discussing.

jcutonilli · Sep 4, 2021

Bob A said:
Unloaded weapon in the hands of the intoxicated owner in his home.

What if he'd been holding a broom? A baseball bat? A screwdriver? Almost any damn thing?

There has to be some limit on the police, or else we have to forbid the use of alcohol, as the citizens cannot be trusted to stay sober.

Absent any information regarding the history of husband, wife, and alcohol usage, this is hardly worth discussing.

The part of the statute in question states

No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance.

I don't believe a broom or almost anything else would qualify.

As for the firearm not being loaded, there does not seem to be any argument related to it being unloaded being made by Weber. If you want the court to consider such an argument Weber would need to actually make such an argument.

The argument presented is whether the statute is constitutional. I do not see SCOTUS granting cert on such an issue.

rambling_one · Sep 4, 2021

The quote contains the word “use.” What was the guy “using” the unloaded shotgun for?

jrumann59 · Sep 4, 2021

rambling_one said:
The quote contains the word “use.” What was the guy “using” the unloaded shotgun for?

As a bong

jcutonilli · Sep 4, 2021

rambling_one said:
The quote contains the word “use.” What was the guy “using” the unloaded shotgun for?

The statute says "carry or use". Given that he had the firearm in his hand, it would appear that he was carrying it.

A case could be made that an unloaded firearm does not meet the intent of the statute, but it does not appear that they really made that argument.

The cert petition is about them challenging the statute on 2A grounds. I don't see SCOTUS granting this petition.

Bob A · Sep 5, 2021

I'm gradually becoming convinced that legislators are far more dangerous than that which they aim to protect us from.

Apparently you can't legislate common sense. But everything else is in the statutes.

Weber v State of Ohio

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