Columnist Says Arrests, Not Convictions, Should Lead to Disarmed Defendants

In our criminal justice system (if not always the court of public opinion) the accused is innocent until proven guilty. Still, even with that ideology at the heart of our legal system, some defendants can be held without bond until trial if a judge believes there’s probable cause to show they’re a threat to the community, and even those who can bond out or are released on their own recognizance before trial often have to abide by conditions imposed on them by the courts. 

That often includes not being able to possess a firearm, and in the state of Ohio there’s no wiggle room or leeway whatsoever for those accused of committing a violent felony. A case winding its way up to the Ohio Supreme Court could upend that statute, however, and Cleveland Plain Dealer columnist Eric Foster is not happy about it.

As Foster explains:

Delvonte Philpotts was accused of committing a violent felony: rape. While still under indictment, he posted photographs of himself with a gun to his social media. He was then charged with another felony — having a weapon under disability (“WUD”) — for violating the Ohio law which prohibited him from possessing a gun while under indictment for a violent felony. (Life lesson: Stop posting everything, young people.) 

The state of Ohio dismissed the rape case, but not the WUD case. Delvonte filed a motion to dismiss the case, arguing that the WUD law violated his Second Amendment right to bear arms. The trial court denied his motion, after which Delvonte pleaded “no contest.” He appealed his conviction all the way to the Ohio Supreme Court. The high court sent Delvonte Philpotts’ case back to the trial court for reconsideration of his motion to dismiss in light of the U.S. Supreme Court’s recent decision in New York State Rifle & Pistol Association v. Bruen.

… 

The trial court did what was ordered. It reconsidered Delvonte Philpotts’ motion in light of Bruen. After doing so, it determined that Delvonte was right. Ohio’s WUD law violated the Second Amendment, as there was no historical tradition of firearm regulation in the same way. Therefore, the law was unconstitutional. Said simply, Ohio’s blanket prohibition of gun possession by those accused of committing violent felonies was itself prohibited by the Second Amendment of the U.S. Constitution. Last week, the 8th District in Cleveland affirmed the trial court’s decision.

Foster argues that Delvonte’s case should lead “ardent gun enthusiasts to think about just how deep their commitment to the Second Amendment goes.” 

To be clear, I’m not saying that Delvonte is a bad person. Under the law, he is innocent until proven guilty. Moreover, his case was ultimately dismissed. Nonetheless, I would ask those same enthusiasts whether the “good guy with a gun” in their fantasy scenario includes those accused of committing violent felony offenses. Well…does it?

I wouldn’t frame it as a “good guy with a gun”, but whether someone accused of a crime, even a violent felony, should automatically lose their right to possess a firearm. And my answer is “no”. 

As Foster points out, not only was Delvonte’s rape charge ultimately dismissed, he was disarmed before trial by the state’s blanket prohibition on gun possession for anyone charged with committing a violent felony. I personally believe that someone shouldn’t lose their right to keep and bear arms until after a conviction, but the Supreme Court has already made it clear in Rahimi that some individuals presumed to be dangerous by a judge can be barred from possessing a firearm before they’re convicted in court. 

That standard, however, still requires a particularized finding of dangerousness, which is absent in Ohio’s law. The Supreme Court has previously pointed to things like 18th and 19th century surety laws that required individuals believed to pose a particular threat to post a bond before they can carry, but hinted that blanket bans on an entire class of people are unconstitutional. Under the Supreme Court’s precedence, I think a law that allowed some defendants to be disarmed while awaiting trial would probably withstand legal muster, so long as there was a reasonable belief or probable cause to believe that the defendant posed a legitimate threat to the community or other individuals. That’s not what Ohio’s statute says, however, and for that reason, the state Supreme Court should strike down the “weapons under disability” law and require the legislature to use a scalpel and not a sledgehammer when looking at the rights of those accused, but not convicted of, committing violent crimes.