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House Bill 228 amending Ohio’s gun laws deserves a veto - but not for one of the reasons we earlier cited: editorial

Editorial BoardDecember 14, 2018

House Bill 228 amending Ohio’s gun laws deserves a veto - but not for one of the reasons we earlier cited: editorial

Gov. John Kasich should still veto Amended Substitute House Bill 228, the gun law awaiting his action, because of the way it broadens the state’s ability to pre-empt local gun regulations and further erodes Ohio communities’ home rule rights.

The law adds a prohibition against “any ordinance, rule, regulation, resolution, practice, or other action or any threat of citation, prosecution, or other legal process” to the list of ways in which localities could be found in violation of state law in trying to regulate gun ownership, sales, storage or transport. It also opens the door far wider to expensive civil claims against any municipality that adopts such rules or practices. 

But one of the reasons we cited for opposing the bill in an editorial this week was erroneous: While HB 228 if enacted would shift the burden of proof in Ohio to prosecutors when self-defense is claimed, that would not make Ohio an outlier among the 50 states. Quite the reverse: Ohio appears to be the only state that still hews to old common law standards by putting the burden on defendants who raise affirmative self-defense claims to show by a preponderance of the evidence that they were acting in self-defense.

The constitutionality of Ohio’s affirmative self-defense requirement was upheld in a 5-4 1987 U.S. Supreme Court decision that noted that prosecutors under Ohio law still must prove every element of the crime beyond a reasonable doubt. The Ohio Prosecuting Attorneys Association, in opposing HB 228, notes that the bill’s advocates don’t cite any cases where the current law has led to a miscarriage of justice, calling it a solution in search of a problem.

But dissenters in the U.S. Supreme Court case noted that having a secondary burden of proof for a defendant in a gun case could potentially muddy the waters for jurors regarding who has to prove what. And defense lawyers have long argued that Ohio should align its self-defense requirements with that of most if not all other states.

At a minimum, this portion of the bill is not as we characterized it, for which we are deeply sorry.

That mistake aside, HB 228 still deserves a veto, for the way it inappropriately widens the state’s ability to interfere with the ability of localities to engage in any practice that might be seen as impinging on gun rights -- and in how it seeks to use civil litigation as a cudgel against Ohio cities.

About our editorials: Editorials express the view of the editorial board of cleveland.com and The Plain Dealer -- the senior leadership and editorial-writing staff. As is traditional, editorials are unsigned and intended to be seen as the voice of the news organization. 

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