After Three Years, Columbus obtains Injunction against Ohio Preemption Law

The City of Columbus, Ohio, sued a Franklin County court of Common Pleas judge in Columbus, in the Supreme Court of Ohio, to obtain an injunction against Ohio preemption law, claiming the law violates the Ohio Constitution.

The preemption law was passed in December of 2018, overriding a veto by the Ohio Governor Kasich. 

Here is a link to the law in question, Ohio R.C. 9.68(A).  Here is the part of the law dealing with commercial purposes:

(D) This section does not apply to either of the following:

(1) A zoning ordinance that regulates or prohibits the commercial sale of knives, firearms, firearm components, or ammunition for firearms in areas zoned for residential or agricultural uses;

(2) A zoning ordinance that specifies the hours of operation or the geographic areas where the commercial sale of knives, firearms, firearm components, or ammunition for firearms may occur, provided that the zoning ordinance is consistent with zoning ordinances for other retail establishments in the same geographic area and does not result in a de facto prohibition of the commercial sale of knives, firearms, firearm components, or ammunition for firearms in areas zoned for commercial, retail, or industrial uses.

The City of Columbus filed a lawsuit challenging the law in 2019. 

Both parties asked to vacate the case schedule on December 2, 2019. 

On October 24, 2022, the City of Columbus fired a lawsuit to force Judge McIntosh to rule on a motion for a preliminary injunction, claiming the judge had failed to follow proper procedure.

Under pressure of lawsuit, Judge Stephen L. McIntosh granted the injunction on November 2, 2022.

The argument is the statute prevents the city from regulating the commercial manufacture of firearms. From the injunction

In its Motion for Preliminary Injunction, the City argues that Am. Sub. H.B. 228 and R.C. 9.68 are unconstitutional because they infringe on the City’s right to exercise its zoning powers, under C.C.C. 3332.02, to prohibit a firearms manufacturing plant from locating in a residential neighborhood. The City asserts that the General Assembly has expressly prohibited the City from passing any zoning regulations related to firearms, including where a firearms manufacturer might locate.

The state contends zoning laws which apply to all manufacturing plants are not prohibited, only laws which specifically apply to firearms. 

The city contends they are prohibited from zoning firearms manufacturers. 

No commercial firearms manufacturers exist in Columbus, it appears. None are mentioned in the injunction. 

 From the injunction: 

The City argues that the public interest would be served by the prevention of firearm manufacturers from setting up a plant in the middle of a residential neighborhood. Because the statute does not expressly prohibit such action. Paragraph (D) prohibits the commercial sale of firearms in certain zoned areas but does not speak to manufacturing plants.

The City argues they would be harmed if a person started to commercially manufacture firearms in their jurisdiction, and they would be required to sue to prevent such an occurrence.

Several previous lawsuits by cities in Ohio against firearms pre-emption laws have lost at the Supreme Court level. 

It appears to be an ingenious bit of lawfare. The only part of the pre-emption law which is being challenged is the potentially ambiguous exemption of zoning of manufacturing plants for firearms. 

On this thread, Columbus hopes to strike down the entire law. 

Buckeye Firearms Association believes the injunction properly only applies to the commercial manufacture of firearms in residential areas. From buckeyefireams.org: 

“The Ohio Supreme Court has ruled specifically that Ohio’s preemption statute is valid law and a lower court judge cannot simply sweep that away. There may be a case concerning the narrow issue of whether cities can zone to prevent firearm manufacturers from locating in residential neighborhoods, but that is all.”

Buckeye Firearms Association urges Columbus to stop playing politics with settled law and stop misleading the public about their authority on gun regulation.

Columbus and other cities must continue to abide by state law.

“Any city that attempts to ignore Ohio’s preemption law will be challenged in court,” warned Rieck. “We will not sit by idly and watch Ohio devolve into a patchwork of conflicting gun laws as we had two decades ago.

Opinion:

It seems the city lacks standing here, because the harm is entirely speculative. Cities do not have rights. They have powers. This is a general law, applying to the entire state, not any city in particular. 

There is no actual harm at this time. 

The injunction is near certain to be appealed.  One contention is if the injunction applies to the entire law and to the entire state of Ohio.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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