[Cite as State v. Rush, 2012-Ohio-5919.]




         IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                  :

        Plaintiff-Appellee                     :     C.A. CASE NO. 25179

vs.                                            :     T.C. CASE NO. 2011CR721

DEMETRIOUS H. RUSH                             :     (Criminal Appeal from the
                                                      Common Pleas Court)
        Defendant-Appellant                    :

                                           .........

                                           OPINION

                          Rendered on the 14th day of December, 2012.

                                           .........

Mathias H. Heck, Jr., Prosecuting Attorney, by Andrew T. French, Assistant
Prosecuting Attorney, Atty. Reg. No. 0069384, P.O. Box 972, 301 West Third Street,
Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

Herbert Creech, Atty. Reg. No. 0005198, 200 F Jamestown Circle, Dayton, Ohio 45458
      Attorney for Defendant-Appellant

                                           .........

GRADY, P.J.:

        {¶ 1} Defendant Demetrious Rush appeals his conviction and sentence for improper

handling of a firearm in a motor vehicle, R.C. 2923.16(B), a felony of the fourth degree.

        {¶ 2} In April 2011, Defendant was indicted on one count of carrying a concealed

weapon. He filed a motion to dismiss, challenging the constitutionality of the CCW statute,
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and a motion to suppress, both of which were overruled. After the suppression hearing

Defendant was re-indicted, adding a charge of improper handling of a firearm in a motor

vehicle. Defendant filed a motion to dismiss the second indictment, claiming that the R.C.

2923.16(B) is unconstitutional under the Second Amendment to the United States

Constitution. The trial court overruled Defendant’s motion.

        {¶ 3} Defendant pled no contest to the improper handling charge and the State

dismissed the carrying a concealed weapon charge. The trial court sentenced Defendant to

community control sanctions. Defendant appeals, raising one assignment of error.

        {¶ 4} Defendant’s assignment of error:

“THE STATUTE UPON WHICH APPELLANT’S CONVICTION IS BASED IS INVALID

IN   THAT      IT   IS   AN    UNCONSTITUTIONAL           INFRINGEMENT        UPON      THE

FUNDAMENTAL RIGHT TO KEEP AND BEAR ARMS PROTECTED BY THE SECOND

AMENDMENT           TO   THE     UNITED      STATES      CONSTITUTION         AND     THUS

NECESSITATES A REVERSAL OF HIS CONVICTION.”

        {¶ 5} Defendant was convicted of improper handling of a firearm in a motor vehicle,

in violation of R.C. 2923.16(B), which states: “No person shall knowingly transport or have a

loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the

operator or any passenger without leaving the vehicle.” He maintains that the statute is

unconstitutional because it infringes upon his Second Amendment right to keep and bear

arms.

        {¶ 6} “It is fundamental that a court must ‘presume the constitutionality of lawfully

enacted legislation.’” Klein v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779, 795 N.E.2d 633, ¶
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4, quoting Arnold v. Cleveland, 67 Ohio St.3d 35, 38, 616 N.E.2d 163 (1993). Therefore, the

challenged legislation will not be invalidated unless the challenger proves beyond a

reasonable doubt that the contested statute is unconstitutional. Id., citing Arnold at 39.

       {¶ 7} The Second Amendment to the United States Constitution provides: “A well

regulated Militia, being necessary to the security of a free State, the right of the people to keep

and bear Arms, shall not be infringed.” The United States Supreme Court has held that the

Second Amendment right to bear arms is a fundamental right. McDonald v. Chicago, 561

U.S. ___, 130 S.Ct. 3020, 3036-3037, 177 L.Ed.2d 894 (2010), citing Dist. of Columbia v.

Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.E.2d 637 (2008). Accord, Klein at ¶ 7, citing

Arnold (both interpreting the right to bear arms encompassed within Section 4, Article I of the

Ohio Constitution). However, an individual’s right to bear arms is not unlimited. State v.

King, 2d Dist. Montgomery 24141, 2011-Ohio-3417, ¶ 22, citing Heller at 626; Klein at ¶ 7-8.

       {¶ 8}    In King, we held that R.C. 2923.16(B) does not constitutionally infringe on an

individual’s right to bear arms. King at ¶ 25, citing Klein at ¶ 3, reasoned that the statute

does not prohibit all transportation of firearms in motor vehicles. Instead, it limits the

manner in which loaded firearms may be transported. Regulations regarding the manner in

which firearms may be carried are adopted in exercise of the State’s police power. Id. at ¶22,

citing Klein at ¶13, in turn citing Arnold at ¶ 47 and State v. Nieto, 101 Ohio St. 409, 413, 130

N.E. 663 (1920).       Such regulations “are constitutionally permissible if they impose

reasonable limitations upon an individual’s right to bear arms.” Id., citing Klein at ¶ 14;

Arnold at ¶ 47-48.
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       {¶ 9} We held in King that the limits upon an individual’s right to transport a loaded

gun within reach of the driver or a passenger that R.C. 2923.16(B) imposes “are both

appropriate and reasonable.” Id. at ¶ 23. The statutory limitation is “rationally related to a

legitimate government interest in safety – the safety of the person possessing the firearm, the

safety of other passengers in the vehicle, the safety of other cars on the roadway, and the

safety of police officers who encounter these individuals.” Id. at ¶ 28, citing State v. Brown,

168 Ohio App.3d 314, 2006-Ohio-4174, 859 N.E.2d 1017; State v. White, 3d Dist. Marion

No. 9-96-66, 1997 WL 180307 (March 28, 1997).

       {¶ 10} Defendant asks us to reconsider our holding in King. He contends that King

applied a rational basis test, while challenges brought pursuant to the Second Amendment,

because it confers a fundamental right, must be decided by applying the “strict scrutiny”

standard of review. Defendant relies on Dist. of Columbia v. Heller. However, Heller did

not expressly prescribe a strict scrutiny standard of review for Second Amendment challenges.

       {¶ 11} A threshold question is whether Defendant’s argument is that R.C. 2923.16(B)

is unconstitutional on its face or merely unconstitutional as applied to him. Defendant does

not contend that the statute unconstitutionally restricts the right to transport guns in a motor

vehicle absolutely. Instead, he argues that the statute infringes on his legitimate right of

self-defense protected by the Second Amendment. In that respect, Defendant’s contention is

that R.C. 2923.16(B) is unconstitutional as applied to him. However, on this record, that is

an issue we are unable to decide.

       {¶ 12} The indictment provides us with the only information contained in the record

regarding the factual basis for Defendant’s conviction for improper handling of a firearm in a
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motor vehicle. Defendant has provided us with no transcripts of any of the trial court

proceedings.    We therefore are unable to discern and weigh how Defendant’s right of

self-defense was allegedly infringed. Based on the record before us, we can only conclude

that, factually, Defendant’s conviction falls within the appropriate and reasonable limitations

that R.C. 2923.16(B) places on the manner in which loaded firearms may be transported in a

motor vehicle. King.

        {¶ 13} His having failed to prove beyond a reasonable doubt that the challenged

statute is unconstitutional, Defendant’s sole assignment of error is overruled. The judgment

of the trial court will be affirmed.



Froelich, J., and Hall, J., concur.




Copies mailed to:

Andrew T. French, Esq.
Herbert Creech, Esq.
Hon. Frances E. McGee
