“Driving cars, handling chainsaws, and wielding deadly weapons all seem to be activities that are best performed while sober.”
But, as this Ohio appellate court notes, only one of those implicates the U.S. Constitution. (And, incidentally, the Ohio Constitution, as well. Almost all state constitutions include a provision protecting the right to keep and bear arms, though the language sometimes varies in interesting and consequential ways.)
Late one night, police in Cincinnati responded to a ShotSpotter alert and a 911 call about a single gunshot fired outside a home. They arrested a drunken man with a .45-caliber pistol.
The man was charged under an Ohio law that prohibits carrying a firearm while under the influence of alcohol or drugs.
The man objected and moved to have the indictment against him dismissed, arguing that the law was unconstitutional “as applied” to him under the U.S. Constitution, and facially unconstitutional under the Ohio Constitution.
(I explained the difference between as-applied challenges and facial challenges in this post: https://lnkd.in/gaNMXbi8.)
The trial court agreed with him on both accounts and dismissed the indictment. The state appealed.
Yesterday, Ohio’s Court of Appeals, First District, reversed the decision.
As to the as-applied challenge under the U.S. Constitution, it had no problem finding that the law was “consistent with the Nation’s historical tradition of firearm regulation,” as Bruen requires. It cited many historical laws disarming presently intoxicated persons.
(BTW, the distinction between presently intoxicated and regularly intoxicated may be central to an issue SCOTUS granted cert on this week. https://lnkd.in/gRAtgpCy)
As for the Ohio Constitution, the court noted that Ohio’s Supreme Court has not yet adopted the Bruen framework for analyzing such challenges. Instead, existing precedent asks whether the law is a “reasonable regulation…under the State’s police powers [with] a real and substantial relation to…the health, safety, morals, or general welfare of the public.” The appellate court found that it was.
In an interesting concurrence, one judge advocated a “general ‘dangerousness’ analysis” to assess the constitutionality of gun laws, to ease the burden on lower courts. The concurrence commended the trial court for doing yeoman’s work (even if the court reversed its opinion) and noted that the particular judge had handled 3,000 cases during the same year the judge decided this matter.
At any rate, the case was remanded. And now that judge has one more case to handle.
This was a straightforward, well-written, and enjoyable opinion. You can read it for yourself here: https://storage.courtlistener.com/pdf/2025/10/24/state_v._riffee.pdf.