         [Cite as State v. Campbell, 2013-Ohio-5612.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :     APPEAL NO. C-120871
                                                        TRIAL NO. B-1206467
        Plaintiff-Appellee,                       :
                                                           O P I N I O N.
  vs.                                             :

SANCHEZ CAMPBELL,                                 :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 20, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Jerome J. Grogan, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




D INKELACKER , Judge.

       {¶1}    Following a no-contest plea, defendant-appellant Sanchez Campbell

was convicted of carrying a concealed weapon under R.C. 2923.12(A)(2). He entered

the plea after the trial court overruled his motion to dismiss the indictment on the

basis that the carrying-a-concealed-weapon statute was unconstitutional. We affirm

the trial court’s judgment.

       {¶2}    In his sole assignment of error, Campbell contends that the trial court

erred in denying his motion to dismiss the indictment. He argues that R.C. 2923.12

is unconstitutional on its face and as applied to him because it denies him his

fundamental right to bear arms. This assignment of error is not well taken.

       {¶3}    Generally, we review a trial court’s denial of a motion to dismiss de

novo. State v. Thompson, 1st Dist. Hamilton No. C-130053, 2013-Ohio-2647, ¶ 4.

We also review constitutional challenges de novo.       State v. Castellini, 1st Dist.

Hamilton Nos. C-110445 and C-110446, 2012-Ohio-1603, ¶ 12.                 Legislative

enactments enjoy a strong presumption of constitutionality.       To overcome that

presumption, the challenging party must prove that the statute is unconstitutional

beyond a reasonable doubt. Klein v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779, 795

N.E.2d 633, ¶ 4; State v. Kraft, 1st Dist. Hamilton No. C-060238, 2007-Ohio-2247, ¶

30.

       {¶4}    A party can challenge a statue as being unconstitutional on its face or

as applied to a particular set of facts. Harrold v. Collier, 107 Ohio St.3d 44, 2005-

Ohio-5334, 836 N.E.2d 1165, ¶ 37. In a facial challenge, the party challenging the

statute must demonstrate that no set of facts exists under which the statute would be

valid. Id. at ¶ 37. It must be unconstitutional in all of its applications. Oliver v.




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Cleveland Indians Baseball Co. Ltd. Partnership v. Cleveland, 123 Ohio St.3d 278,

2009-Ohio-5030, 915 N.E.2d 1205, ¶ 13.

       {¶5}       Campbell relies upon two United States Supreme Court decisions. In

Dist. of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 627 (2008),

the court held that the Second Amendment to the United States Constitution confers

an individual right to keep and bear arms. Id. at 595. Therefore, the court found a

District of Columbia law prohibiting the ownership and possession of handguns

inside the home and used for self-defense to be unconstitutional. Id. at 635-636.

       {¶6}       In McDonald v. Chicago, ___ U.S. ___, 130 S.Ct. 3020, 177 L.Ed.2d

894 (2010), the court held that the right to bear arms enshrined in the Second

Amendment “is fully applicable to the states.” Id. at 3026 and 3050. Thus, the court

struck down similar laws in Chicago and Oak Park that banned the possession of

handguns in the home. Id.

       {¶7}       Nevertheless, in Heller, the Supreme Court pointed out that “[l]ike

most laws, the right secured by the Second Amendment is not unlimited.” Heller at

626. It stated:

        Although we do not undertake an exhaustive historical analysis today

       of the full scope of the Second Amendment, nothing in our opinion

       should be taken to cast doubt on longstanding prohibitions on the

       possession of firearms by felons and the mentally ill, or laws

       forbidding the carrying of firearms in sensitive places such as schools

       and government buildings, or laws imposing conditions and

       qualifications on the commercial sale of arms.




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Id. at 626-627.        The court continued, “We identify these presumptively lawful

regulatory measures only as examples; our list does not purport to be exhaustive.”

Id. at 637, fn. 26.

       {¶8}     Thus, Heller suggests that the right to bear arms is not absolute, and

certain settled longstanding restrictions may fall under the category of presumptively

lawful regulatory measures. Clementz-McBeth v. Craft, 3d Dist. Auglaize No. 2-11-

16, 2012-Ohio-985, ¶ 28. Even after Heller and McDonald, various Ohio courts have

upheld the constitutionality of laws regulating firearms. See State v. Rush, 2d Dist.

Montgomery No. 25179, 2012-Ohio-5919 (improper handling of a firearm in a motor

vehicle); State v. Isreal, 12th Dist. Warren No. CA2011-11-115, 2012-Ohio-4876

(firearm specification); State v. Beyer, 5th Dist. Licking No. 12-CA-27, 2012-Ohio-

4578 (using a weapon while intoxicated); State v. Henderson, 11th Dist. Portage No.

2010-P-0046, 2012-Ohio-1268 (plurality) (improper handling of a firearm in a

motor vehicle); Clementz-McBeth (civil protection order with a firearm restriction).

       {¶9}     The court in Heller did not announce the appropriate level of scrutiny

to be applied to restrictions to bear arms, noting that the complete ban on handguns

in that case would not have passed constitutional muster under any standard of

scrutiny. Heller, 554 U.S. at 628-629, 128 S.Ct. 2783, 171 L.Ed.2d 637. But it did

state that use of the rational-basis test would be inappropriate. Id. at 628, fn. 27.

       {¶10}          Many courts since that have addressed the issue have applied an

intermediate level of scrutiny. See, e.g., Henderson at ¶ 48; Kachalsky v. Cty. of

Westchester, 701 F.3d 81, 93-94 (2d Cir.2012); United States v. Reese, 627 F.3d 792,

801-802 (10th Cir.2010). To meet that standard, the legislation must be narrowly

tailored to serve a significant government interest and it must leave open alternative




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means of exercising that right. Perry Edn. Assn. v. Perry Local Educators’ Assn.,

460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Henderson at ¶ 52.

       {¶11}    Federal courts have applied a two-part test. First, the court must

consider whether the challenged law imposes a burden on conduct falling within the

scope of the Second Amendment guarantee. If it does, the court must evaluate the

law under “some form of means-end scrutiny.” Drake v. Filko, 724 F.3d 426, 429

(3d Cir.2013); United States v. Greeno, 679 F.3d 510, 518 (6th Cir.2012); Reese at

800-801; U.S. v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010).

       {¶12}   Prior to McDonald and Heller, the Ohio Supreme Court decided Klein

v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779, 795 N.E.2d 633. The court held that

R.C. 2923.12 “does not unconstitutionally infringe on the right to bear arms; there is

no constitutional right to bear concealed weapons.” Id. at paragraph one of the

syllabus. Its holding was based upon Ohio Constitution, Article I, Section 4, which

states: “The people have a right to bear arms for their defense and security[.]”

       {¶13}   The Klein court held that while the right to bear arms was

“fundamental” and “entrenched in the constitutional heritage of our state,” that right

is not absolute. Id. at ¶ 7. It noted that a statute prohibiting carrying a concealed

weapon “has been part of our legal heritage since 1859” and has been in effect

through numerous amendments and two different constitutional conventions. Id. at

¶ 12. It held that the carrying-a-concealed-weapon statute was “regulation of the

manner in which weapons can be carried” and was within the state’s police power.

Id. at ¶ 13. The court added that the statute was a reasonable method of achieving

the General Assembly’s goal of maintaining an orderly and safe society. Id. at ¶ 15.

       {¶14}   We think that the logic of Klein applies even under intermediate

scrutiny. While there is a fundamental right to bear arms, there is no fundamental



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right to carry a concealed weapon. Even if we were to hold that the prohibition

against carrying a concealed weapon does burden conduct within the scope of the

right to bear arms, it serves a significant public interest, promoting public safety. See

Henderson, 2012-Ohio-1268, at ¶ 52; Kachalsky, 701 F.3d at 97; Reese, 627 F.3d at

802. The prohibition is substantially related to that government interest and leaves

open alternate means of exercising the fundamental right to bear arms. Henderson

at ¶ 52; Kachalsky at 98-99.

       {¶15}   The right to bear arms is “not a right to keep and carry any weapon

whatsoever in any manner whatsoever and for whatever purpose.” Heller, 554 U.S.

at 626, 128 S.Ct. 2783, 171 L.Ed.2d 637. Campbell has failed to show that R.C.

2923.12 is unconstitutional in all of its applications. Therefore, he has failed to show

beyond a reasonable doubt that it is unconstitutional on its face.

       {¶16}   Campbell also argues that the statute is unconstitutional as applied to

him. The party contending that a statute is unconstitutional as applied bears the

burden to present clear and convincing evidence of a presently existing state of facts

that make the statute void when applied to those facts. Harrold, 107 Ohio St.3d 44,

2005-Ohio-5334, 836 N.E.2d 1165, at ¶ 38; Platt v. Bd. of Bldg. Appeals of

Cincinnati, 1st Dist. Hamilton No. C-100648, 2011-Ohio-2776, ¶ 14.

       {¶17}   The legislature has provided a means for individuals to obtain a

license to carry a concealed handgun. Under R.C. 2929.125, a person who is not

under certain restrictions may obtain a license to carry a concealed handgun. An

applicant for this license must pay a fee, and in some cases, the costs of a criminal

background check. R.C. 2923.125(B)(1). An applicant must also provide a certificate

showing that the applicant has completed a firearm safety and training course. R.C.

2923.125(B)(3).



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶18}    Campbell argues that had he been able to obtain a license, he would

not have been convicted of carrying a concealed weapon. He contends that the

statutory scheme violates his fundamental rights because he is indigent and cannot

afford the fee or the cost of the class. Further, the statute does not allow for a waiver

of the fee, except for retired law enforcement officers and a few others, or for the cost

of the class.

       {¶19}     But even though Campbell argued that he was indigent, the record is

devoid of any evidence showing that he could not pay the fee or the cost of a class to

obtain a concealed-carry license. He did not present an affidavit of indigency or any

testimony showing he was without funds to obtain a concealed-carry license.

Further, the record does not show that the trial court appointed counsel for him

because he was indigent or that the court waived court costs rather than imposing

them because he was indigent. Campbell bore the burden to show that the statutory

scheme is unconstitutional as applied to him and simply arguing that he is indigent is

insufficient to meet that burden.

       {¶20}    Under the circumstances, the trial court did not err in overruling

Campbell’s motion to dismiss the indictment. We overrule his assignment of error,

and we affirm his conviction.

                                                                    Judgment affirmed.



H ILDEBRANDT , P.J., and F ISCHER , J., concur.


Please note:
       The court has recorded its own entry this date.




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