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.”1 Charter counties may also be organized as municipal corporations, and possess all the police powers granted to cities and villages.2

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 the enactment of a general law that conflicts with a given local ordinance.3

Ohio Revised Code Annotated § 9.68 took effect in March 2007.  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.

The City of Cleveland challenged section 9.68 as a violation of Article XVIII, § 3.  Despite the expansive home rule authority Article XVIII grants to municipalities, the Ohio Supreme Court upheld Section 9.68 in 2010.4 The Supreme Court found section 9.68 met each prong  of 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, providing 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.

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.”5 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 banning possession of certain high-capacity semi-automatic firearms 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 semi-automatic firearm with the capacity to fire more than ten rounds.  The defendant argued that the city’s ban was in conflict with state law which banned 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 found no 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.”6.)) 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.7

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.8 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 non-charter 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.

Notes
  1. Ohio Const. Art. XVIII, §§ 1 and 3. ⤴︎
  2. Ohio Const. Art. X, § 3. ⤴︎
  3. Fondessy Enterprises, Inc. v. City of Oregon, 492 N.E.2d 797, 799-800 (Ohio 1986). ⤴︎
  4. City of Cleveland v. Ohio, 128 Ohio St. 3d 135, 2010-Ohio-6318, 942 N.E.2d 370. ⤴︎
  5. Fondessy Enterprises, Inc. v. City of Oregon, 492 N.E.2d 797, 801 (Ohio 1986). ⤴︎
  6. Id. at ¶ 20 (quoting Cincinnati v. Hoffman, 285 N.E.2d 714, 719 (Ohio 1972 ⤴︎
  7. Cincinnati v. Baskin, 112 Ohio St. 3d 279, 2006-Ohio-6422, 859 N.E.2d 514, at ¶ 23. ⤴︎
  8. McDonald v. City of Columbus, 231 N.E.2d 319, 320-22 (Ohio Ct. App. 1967). ⤴︎