At 4:00 a.m. on February 17, 2018, Frederick Weber’s wife called the police to report that her husband was intoxicated and holding a shotgun.[1] When officers arrived, Weber’s wife told them, “Everything is okay, he put it away.”[2] But when they entered the home, they saw Weber “holding the shotgun by the stock with one hand.”[3] The officers ordered Weber to put the firearm down, so he did, asserting that it was unloaded.[4]

Weber repeatedly admitted to being intoxicated.[5] This was confirmed by the smell of alcohol on Weber, his slurred speech and bloodshot eyes,[6] his inability to perform a field sobriety test, and his difficulty in following the officers’ instructions.[7] When the officers asked Weber what he was doing with the shotgun, Weber “seemed confused and could not give a definitive answer.”[8] Later, Weber told them that he had the shotgun because he was unloading it so he could wipe it down.[9] The officers confirmed that it was indeed unloaded, as Weber had claimed when they arrived.[10]

Weber was charged for carrying a firearm while intoxicated.[11] Specifically, Ohio law provides that “[n]o person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance.”[12] A violation is a first-degree misdemeanor.[13]

After a bench trial, Weber was convicted and sentenced to ten days in jail (all ten days were suspended), one year of community control, eight hours of community service, and a $100 fine.[14]

The appeal of his conviction eventually reached the Supreme Court of Ohio, which considered (1) whether a prohibition on possessing a firearm while intoxicated at home is unconstitutional; (2) whether the statute violated Weber’s Second Amendment rights as applied to the facts of his case; and (3) whether all Second Amendment challenges should be reviewed under strict scrutiny.[15]

The court decided that the answer to each of these issues was, “no.”

Addressing the appropriate standard of review, the court held that strict scrutiny should not apply to all Second Amendment challenges, and that it should not apply in this case.[16] Rather, the court applied intermediate scrutiny. To determine what level of scrutiny was appropriate, the court considered “how close” the law “comes to the core Second Amendment right and whether it imposes a severe burden on that right.”[17] It determined that intermediate scrutiny was appropriate because even though the Second Amendment’s “core protection” is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home,”[18] the law’s burden on that right was “at most . . . slight.”[19] The law does not prohibit people who consume alcohol from owning or being in a house with a gun, it only prohibits them from carrying or using a gun.[20] Moreover, “an intoxicated person who attempts to carry or use a gun in an otherwise lawful manner is less likely to be able to do so safely and effectively.”[21]

Intermediate scrutiny requires that the law “furthers an important governmental interest and does so by means that are substantially related to that interest.”[22] The court held that forbidding intoxicated people from using or carrying a firearm furthers the important governmental interest in “protecting people from harm from the combination of firearms and alcohol.”[23] The government’s interest was important because “[w]hen an intoxicated person carries or uses a gun, either at home or outside the home, the impairment of cognitive functions and motor skills can result in harm to anyone around the intoxicated person and even to the intoxicated person himself or herself.”[24] And the law was sufficiently tailored because it “targets the governmental interest directly, applying only to individuals who are intoxicated.”[25] The court further determined that the specific facts of the case did not change the outcome, since the state’s interest in preventing harm is just as important regardless of whether Weber was at home or his firearm unloaded.[26]

Justice Patrick DeWine concurred in the judgment only.[27] Justice DeWine believed that the court should have applied a test based on text, history, and tradition rather than heightened scrutiny.[28] Justice DeWine explained that the United States Supreme Court applied a text, history, and tradition test in its landmark Second Amendment case, District of Columbia v. Heller, and expressly rejected interest-balancing tests like intermediate scrutiny.[29] And while Justice DeWine noted that many federal circuit courts have adopted the interest-balancing heightened scrutiny test for Second Amendment cases, he also noted that many Supreme Court Justices have denounced the lower courts’ application of the test as inconsistent with Heller.[30]

Analyzing the Second Amendment’s text, history, and tradition, Justice DeWine determined that the law was constitutional for several reasons:

First, the rationale that places someone who is currently mentally ill and unable to responsibly use a firearm outside the Second Amendment protection applies with equal force to someone who is intoxicated. Second, the best available evidence about the founding generation’s understanding of the right to bear arms reveals that the right did not preclude restrictions on classes of people who presented a present danger to others. In addition, the founding generation closely tied its conception of a right to the use of reason and understood that one with a reduced ability to reason could be incapable of exercising a right. Finally, a review of legal prohibitions involving guns and alcohol in 18th- and 19th-century America adds further support for the proposition that [the law], as applied to Weber, is not inconsistent with the Second Amendment.[31]

Justice Patrick Fischer, joined by Justices Sharon Kennedy and Judith French, dissented. The dissenting justices agreed with Justice DeWine that the “laws and regulations challenged under the Second Amendment must be judged according to the text, history, and tradition of the Second Amendment.”[32] “In Heller,” the dissent explained, the Supreme Court “notably did not employ an interest-balancing test when faced with a Second Amendment challenge. Rather, the court resolved that case by focusing on the text, history, and tradition of the Second Amendment.”[33] Two years later, “[i]n McDonald [v. City of Chicago, 561 U.S. 742], the court employed a similar methodology to decide that the right to keep and bear arms is applicable to the states under the Fourteenth Amendment,” again “rejecting an interest-balancing test in favor of an approach that focuses on the original understanding of the Second Amendment.”[34]

While Justice DeWine conducted a historical analysis himself, the dissent wanted to “remand the cause to the court of appeals for further proceedings,” so the parties could focus “on the text, history, and tradition of the Second Amendment.”[35]

In sum, a majority of the court upheld the ban on possessing a firearm while intoxicated, but according to Justice DeWine, “[b]ecause a majority of the court today adopts this [text, history, and tradition] approach, going forward, lower courts in Ohio should follow the analytical framework used by the Supreme Court in Heller and assess Second Amendment claims based upon text, history, and tradition.”[36]


Note from the Editor:

The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at [email protected].

[1] State v. Weber, Slip Opinion No. 2020-Ohio-6832, at ¶ 2.

[2] Id.

[3] Id.

[4] Id.

[5] Id. at ¶ 3.

[6] Id. at ¶¶ 3–4.

[7] Id. at ¶ 3.

[8] Id.

[9] Id.

[10] Id.

[11] Id. at ¶ 5.

[12] Id. (quoting R.C. 2923.15(A)).

[13] Id. (citing R.C. 2923.15(B)).

[14] Id.

[15] Id. at ¶ 6.

[16] Id. at ¶ 25.

[17] Id. at ¶ 26.

[18] Id. (quoting District of Columbia v. Heller, 554 U.S. 570, 635 (2008)) (emphasis in Weber).

[19] Id. at ¶ 27.

[20] Id. at ¶ 29.

[21] Id. at ¶ 27.

[22] Id. at ¶ 31.

[23] Id. at ¶ 32.

[24] Id. at ¶ 33.

[25] Id. at ¶ 39.

[26] Id. at ¶ 44. Weber “state[d] in passing” in his brief that the law violates the arms provision in the Ohio Constitution. But because he did not “discuss the text or history of” the provision, did not “discuss [Ohio Supreme Court] precedent on that provision,” and did not “discuss how this provision differs from the Second Amendment,” the court declined to address the argument. Id. at ¶ 48.

[27] Id. at ¶ 57 (DeWine, J., concurring).

[28] Id. at ¶ 69.

[29] Id. at ¶ 64.

[30] Id. at ¶¶ 66–67.

[31] Id. at ¶ 77. Justice DeWine noted that some courts have adopted a test that limits the Second Amendment to “virtuous” citizens. But because he found “that explanation less persuasive and underprotective of the Second Amendment right,” he declined to elaborate on it. Id. at ¶ 88 n.3.

[32] Id. at ¶ 111 (Fischer, J., dissenting).

[33] Id. at ¶ 119.

[34] Id. at ¶ 121.

[35] Id. at ¶ 128.

[36] Id. at ¶ 71 (DeWine, J., concurring).