July 15, 1998

"ASSAULT WEAPON" BAN IN COLUMBUS, OHIO,
RULED UNCONSTITUTIONAL

The "assault weapon" and high capacity magazine bans in Columbus, Ohio, have been declared unconstitutional by a federal appellate court. This decision nullifies similar bans with identical language, such as that in Cleveland and other cities.

On July 15, 1998, the U.S. Court of Appeals for the Sixth Circuit, sitting in Cincinnati, Ohio, declared the Columbus "assault weapon" ban unconstitutionally vague and a violation of equal protection of the law. Judge Suhrheinrich wrote the opinion. Peoples Rights Organization, Gerald Smolak, and Dennis Walker, who challenged the law, are represented by Stephen P. Halbrook, who argued the case.

The court held two grandfather clauses violative of equal protection. Under these clauses, the only persons allowed to possess assault weapons and high capacity magazines were persons who registered assault weapons under the old ordinance previously declared by the Court of Appeals to be vague. The court invalidated all five of the definitions of "assault weapon" to be unconstitutionally vague.

The court found that the controversy is justiciable and that the plaintiffs were threatened with prosecution under the ordinance. Further, it noted that "the current law is not subject to any type of clarifying interpretation by a local administrative agency. Rather, the words of the ordinance provide the sole source of guidance for firearms' owners."

On the merits, the court first treated the equal protection clause, which "keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike." (Citing Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). Section 2323.31(B)(3) exempts from prosecution "any person who lawfully possessed an assault weapon and who registered that assault weapon pursuant to former Columbus City Codes Section 2323.05 in 1989." "Thus, the City's grandfather provision is predicated upon an ordinance that we previously invalidated, precisely because it failed to place firearms' owners on notice as to whether or not their firearms were 'assault weapons.'" The court held that the grandfather provision fails the rational basis test. "There simply exists no rational distinction between the individual plaintiffs in this case and those persons who registered their firearms during a thirty day window in 1989 on the basis of little more than a hunch that their firearms might constitute 'assault weapons' under the City's unconstitutionally vague ordinance."

The court also invalidated a grandfather clause for magazines held as part of registered assault weapons. It upheld a clause exempting magazines owned by a person who has a firearm registered under the National Firearms Act. However, the effect of the former is that the magazine ban violates equal protection and is void. The decision is not a model of clarity on this issue, but the invalidity of the magazine ban is the necessary consequence of finding its grandfather clause violative of equal protection.

The court then turned to the vagueness issue. Noting that a strict test applies where criminal penalties are at stake, the court also enquired "whether the statute contains a scienter requirement or imposes strict liability. . . . Indeed, 'in the absence of a scienter requirement . . . a statute is little more than a trap for those who act in good faith.'" (Quoting Colautti v. Franklin, 439 U.S. 379, 395 (1979) (brackets and internal quotation marks deleted). The ordinance here has no knowledge element and imposes strict liability. Given the criminal penalties and lack of a scienter requirement, "a relatively stringent review of the City's assault weapons ban is necessary." Even if the ordinance required a showing of recklessness, the same strict test would apply, for mere possession of any firearm could arguably meet that standard.

The court proceeded to find all of the definitions of "assault weapon" vague. The first definition is "any semiautomatic action, center fire rifle or carbine that accepts a detachable magazine with a capacity of 20 rounds or more." The court explained:

record indicates that any semiautomatic rifle that accepts a detachable magazine will accept a detachable magazine of any capacity which might exist, as it is the magazine, and not the rifle, that determines capacity. Therefore, anyone who possesses a semiautomatic center fire rifle or carbine that accepts a detachable magazine is subject to prosecution so long as a magazine exists with a capacity of twenty rounds or more. Since the ordinance contains no scienter requirement, an owner's complete lack of knowledge as to the magazine's existence is of no consequence.

One plaintiff has a hunting rifle that has a detachable magazine with a capacity of four rounds. He has never possessed or seen any other magazine which would fit his rifle. However, his rifle would accept a detachable magazine with a capacity of twenty rounds or more if one has ever been manufactured. He "would face criminal penalties in the event such a magazine is discovered. Due process demands more than this."

The second definition of "assault weapon" is "any semiautomatic shotgun with a magazine capacity of more than six rounds." Reversing the district court, which upheld this provision, the court found it vague:

Shotgun rounds are available in different lengths. Rounds of a short length may cause a shotgun's magazine capacity to exceed six rounds. Conversely, rounds of a longer length (which may be all the owner possesses or is aware of) will result in a capacity that is less than six rounds. This provision is a trap for the unwary. It imposes criminal liability regardless of whether a shotgun owner knows of the existence of shorter length rounds. Hence, we find this definition unconstitutionally vague.

The third definition of "assault weapon" includes a semiautomatic handgun which is a modification of a rifle defined as an assault weapon or a modification of an automatic firearm. It also includes a semiautomatic handgun originally designed to accept a detachable magazine with a capacity of more than twenty rounds. The first and third of these are vague for the reasons stated above regarding a rifle or carbine defined as an assault weapon. The second of these, with its reference to a "modification," is vague in that "ordinary consumers cannot be expected to know the developmental history of a particular weapon." "The evidence in this case indicates that an average gun owner does not know whether or not his weapon is a modification of another weapon."

The fourth definition of "assault weapon" is any weapon that "may be restored" to one of the above. This is vague not only because the above are vague, but also because "the phrase 'may be restored' fails to provide sufficient guidance to a person of average intelligence as to what is prohibited." "No standard is provided for what may be restored' means, such as may be restored by the person in possession, or may be restored by a master gunsmith using the facilities of a fully-equipped machine shop." (brackets omitted).

The fifth definition of "assault weapon" is "any part, or combination of parts, designed or intended to convert a firearm into an assault weapon as defined [above], or any combination of parts from which an assault weapon as defined [above] may be readily assembled." This is vague not just because the above definitions are vague but also because "'may be readily assembled' does not provide sufficient information to enable a person of average intelligence to determine whether a particular combination of parts is within the ordinance's coverage."

The court next addressed the City's argument that Springfield Armory v. City of Columbus (6th Cir. 1994), which invalidated the first assault weapon ban passed by Columbus, suggested that generic definitions are appropriate instead of a listing of makes and models. The court responded that such dictum was not meant to endorse any specific definitions.

Columbus also "points out that Cleveland's ordinance served as the model for the instant one and that the Ohio Supreme Court upheld the validity of Cleveland's ordinance in Arnold v. City of Cleveland, 616 N.E.2d 163 (Ohio 1993)." However, "the Ohio Supreme Court in Arnold did not consider a vagueness challenge to the ordinance in question."

Although not raised by the plaintiffs or briefed by the parties, the court stated in dictum that the ordinance was not invalid under state and federal guarantees concerning the right to keep and bear arms. "Nevertheless, it is well established that due process protects our citizens from vague legislation even when that legislation regulates conduct which otherwise does not enjoy constitutional protection."

In sum, the Columbus assault weapon ban is nullified by the decision based on the grandfather clause being violative of equal protection and all of the assault weapon definitions being vague. The high capacity magazine ban is nullified because its grandfather clause is violative of equal protection.