Citation(s) from the GunPolicy.org literature library
State of Ohio. 2012 ‘Ohio Const. Art. XVIII, etc..’ Firearms Law Database - Local Authority to Regulate Firearms in Ohio. San Francisco, CA: Giffords Law Center to Prevent Gun Violence. 3 January
Local Authority to Regulate Firearms in Ohio
Municipal Authority to Regulate Firearms
The Ohio Constitution grants municipalities (cities and, for some purposes, villages) the "authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." Charter counties may also be organized as municipal corporations, and possess all the police powers granted to cities and villages.
Because municipal police powers are constitutionally granted, the Ohio Legislature may not withdraw these powers without an amendment to the Ohio Constitution. The powers may be limited only via enactment of a general law that conflicts with a given local ordinance.
In March 2007, Ohio Revised Code Annotated § 9.68 took effect. Section 9.68(A) provides that regardless of local law, a person "without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition" so long as his or her action does not violate federal or state law. Some exceptions are provided for zoning ordinances that are consistent with regulation of other retail businesses in the same area.
Also, in 2007, the City of Cleveland challenged section 9.68 as a violation of Article XVIII of the Ohio Constitution, § 3. Despite the expansive home rule authority Article XVIII grants to municipalities, the Ohio Supreme Court upheld Section 9.68. In doing so, the Supreme Court reversed the appellate court which had ruled that section 9.68 did not supersede local law because it was not a "general law." The general law test established by City of Canton v. State, 95 Ohio St. 3d 149, 2002-Ohio-2005, 766 N.E.2d 963, at ¶ 21 provides that a general law must:
1) be part of a statewide and comprehensive legislative enactment;
2) apply to all parts of the state alike and operate uniformly throughout the state;
3) set forth police, sanitary, or similar regulations, rather than grant or limit municipal legislative power; and
4) prescribe a rule of conduct upon citizens generally. The Ohio Supreme Court found that section 9.68 met each prong of this test.
If a state law is determined to be a general law, a local ordinance must not conflict with it. To determine whether an ordinance conflicts with a general law, a court must consider "whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa." For example, in Ohioans for Concealed Carry, Inc. v. City of Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605, 896 N.E.2d 967, the Ohio Supreme Court struck down a local law that prohibited carrying a firearm in a city park because the ordinance conflicted with state law which allows concealed carry licensees to carry anywhere in the state.
Note, however, that when the state prohibits specific activity, a conflict does not necessarily exist when a local government enacts stricter regulation on the same activity. In a case decided before section 9.68 took effect, the Ohio Supreme Court found that a local law did not conflict with state law in Cincinnati v. Baskin, 112 Ohio St. 3d 279, 2006-Ohio-6422, 859 N.E.2d 514. The defendant in Baskin was found in possession of a firearm in violation of a local law which banned semi-automatic firearms with the capacity to fire more than ten rounds. The defendant argued that the city's ban was in conflict with state law which bans dangerous ordinances and defines them to include semi-automatic firearms with a capacity to fire more than 31 rounds. Although the court found the state law to be a general law, it did not find a conflict between the local ordinance and the state statute.
The court explained that in order for a conflict to arise, the state "must positively permit what the ordinance prohibits, or vice versa.". The court found that the state's ban on firearms with a capacity to fire more than 31 rounds did not amount to authorization to possess firearms with a capacity to fire 31 rounds or fewer:
The [dangerous ordnance statutes] prohibit the possession of semiautomatic firearms that are designed or adapted to fire more than 31 cartridges without reloading. They do not, however, permit or authorize the possession of semiautomatic firearms that are capable of firing 31 or fewer cartridges without reloading. There is nothing in the weapons-control measures in the criminal code that manifests an intent to prevent municipalities from regulating the possession of semiautomatic firearms that hold less than 32 rounds.
Township and Non-Charter County Authority to Regulate Firearms
In contrast to municipalities, townships and non-charter counties derive their police powers from the legislature, not the Ohio Constitution. Although Ohio Revised Code Annotated § 504.01 provides townships with a method to exercise limited home rule powers (i.e., police powers), section 504.04 expressly provides that townships may not establish "regulations affecting hunting, trapping, fishing, or the possession, use, or sale of firearms." Section 302.13(M) grants counties the authority to make any rule or act that does not conflict with general law or with the exercise of powers by municipalities and townships. Thus, townships and non-charter counties are very limited in their ability to adopt regulations affecting firearms…