ANATOMY OF AN AMERICAN HERO
Winning a Gun Rights Battle
by Chuck Klein © 2000
(Published in Guns & Ammo Magazine 9-00)
PREFACE:
Moving back to the Buckeye State in 1994, and to the remembrance that Ohio has no CCW licensing provisions, was most sobering. It was clear to me that not only was Ohio Revised Code (ORC) 2923.12 (the concealed weapons statute) in violation of the Ohio Constitution, but it was also an infringement on the 2nd and the 9th Amendments to the U.S. Constitution (see G&A 8/99, 12/99, 5/00). .jpg)
The subject statute (2923.12 - a felony) is known as the Affirmative Defense (AD) law, i.e., if one has a reason that would justify a prudent person to go armed, one may be exempted from a violation of the law. Only problem is, one has to be arrested and take his chances in a court of law - after the fact - to learn if he was within the AD definition.
By 1998, I felt I knew enough about the law and the rule of law to speak to several local organizations such as Kiwanis, Fairfield Sportsman's Association, Libertarian party, et. al. At each meeting I ended with a request that if anyone with a clean criminal record is arrested for a violation of ORC 2923.12 to contact me for a possible unique defense and attack on the law. Not being a lawyer, I can disseminate to a defendant certain information and tactics that an attorney cannot (see G&A 2/98, 10/98).
CASE BACKGROUND:
Pat Feely, a 29 year old, law-abiding, member of the NRA and the Miami Rifle & Pistol Club, felt he needed a firearm to protect himself. Pat, delivered and picked-up food products, both retail and wholesale, for a local pizza/commissary operation. During the course of a typical day, he would deliver prepared food products to canteen trucks, pick up raw ingredients from suppliers and deliver pizzas retail. All transactions were on a cash basis and Pat would handle up to $2000.00 per day. All of the wholesale exchanges were in remote locations, on a set schedule and some were during non-daylight hours. Pat, also, and regardless of his employment dangers, had made up his mind a long time ago that he wasn't going to be a victim.
Mr. Feely, in his concern about whether carrying a loaded firearm was legal, consulted numerous sources, including the book, KLEIN'S CCW HANDBOOK, The Requisite for Those who Carry Concealed Weapons (accepted during trial as Defendant's exhibit 1). Pat came to his own conclusion that he might have an "Affirmative Defense" under 2923.12 to CCW, but he was confident he had the Ohio Constitutional right to carry a firearm in defense of his life and property as well as the right to self-defense, found in the 9th Amendment to the U.S. Constitution (see G&A 8/99, 12/99, 5/00).
In 1999, while on a early morning, wholesale delivery for his employer, Pat was stopped by a police officer for displaying expired license plates. The vehicle was owned by his employer who was a few days late in attaching the current sticker. Pat was wearing a T-shirt with the words, "God Created Man, Mr. Colt made them equal" and an issue of GUNS & AMMO magazine was on the seat next to him. The officer, being observant as all good officers should be, inquired if Pat was CCW. Mr. Feely, an honest person, admitted he was carrying a Walther PPK/S in a holster under his shirt. The officer asked Pat to step out of the delivery van where the weapon was seized and Pat was placed under arrest.
CCW HAND 
Within a few days, Pat called with the requisite worry and fear of his future. I told him if he would agree not to accept the inevitable plea bargain and wanted to fight the charge, I would spare no effort to help him. He thought about it for a few days and called back saying he wanted to fight this unfair and unconstitutional law - the makings of a true hero. This was not a light and easy decision. Pat knew, because of a clean criminal history and that he wasn't committing any other crime at the time of arrest, he would be offered a sweet plea bargain. He also knew, if he insisted on a jury trial, and lost, he would most certainly be sent to jail, suffer heavy fines, lose his citizenship and never be allowed to own guns again. Mr. Feely, a rugged man, had no fear of prison, figured he could pay any fine, over time, but the loss of his American citizenship, and with it a permanent restriction on gun ownership, was the deciding factor. It takes a very strong principled and ardent willed person to face the loss of one's most precious commodities. Rock solid and standing alone to face his oppressors, Patrick Feely was not unlike another hero named Patrick: Patrick Henry, as he spoke to the Virginia Convention in 1775; "Is life so dear or peace so sweet as to be purchased at the price of chains and slavery?"The hunt for an attorney who not only could understand our tactical plans, but would allow for them and assist us, was most difficult. The unique tactics included, "Jury Nullification," the 9th Amendment to the U.S. Constitution, Article 1, #1 and #4 of the Ohio Constitution (for detailed coverage of these rights, see below), introduction of certain copies of GUNS & AMMO magazines as evidence and one extreme stratagem that will have to remain undisclosed lest we tip our hand for a future case.
Interviews with a number of other attorneys finally led us to Tim Smith, a most astute, results oriented, non-egotistical lawyer. Mr. Smith's Don Quixote demeanor was attracted to the challenges we presented.
As predicted, the prosecutor, knowing he had a weak AD case, offered Pat, in exchange for a guilty plea, Misdemeanor 2, $100.00 fine, no jail time and no restrictions on future gun ownership. A very enticing offer, except if you're hero material as well as being innocent.
NO SUBSTITUTE FOR PREPARATION:
Background information gathered about the trial judge included a statement that he believed everyone should be allowed to keep a firearm in a motor vehicle. He was also very much opposed to the use of "Jury Nullification". We prepared counters to these concepts. First, it is far more a danger to society for one to leave a firearm in a vehicle than for it to be on the person. Second, we prepared a unique tactic to deal with jury nullification (part of our plan) if the Judge resisted.
Attorney Smith, who had had many cases before the Honorable Thomas Crush, believed a bench trial could be more advantageous if we could get our constitutional issues in the record. We didn't feel the Judge would rule in our favor on the constitutional matters if presented as a motion. If the judge ruled against the motions and Pat was found NG by the judge, for reasons of the AD, then our arguments for the constitutionality of ORC 2923.12 would be moot. If found guilty, we would have the expense, time and uncertainty of an appeal.
There have been a number of cases where a defendant had raised Article 1, #4 as a defense to CCW and all had lost when the courts ruled one does not have an unrestricted right to carry a concealed weapon. We were unable to find any reference to Article 1, #1 in relation to self-defense with a firearm. This was new ground. Additionally, we were unable to find any court rulings or evidence where the police will arrest anyone found, in public, with a loaded firearm (hunters excepted).
There was also very little court tests on using the 9th Amendment to the U.S. Constitution in relation to an inherent right to bear arms for self protection. We were convinced that the meaning and intent of the framers of the Ohio Constitution was clear: One has the inalienable - can not be taken away - right to defend one's life and property and may do so with a firearm.
In the event the prosecution relied on the argument that one can carry a gun in the open - not concealed - in order to enjoy his 9th Amendment and Article 1, #'s 1 & 4 rights, we prepared an answer. In the best interest of the public it is far more dangerous to carry a loaded weapon openly than concealed for the following reasons:
a) Firearms carried in the open can cause panic when other citizens see a gun being carried openly on the street or in a public place such as a restaurant or retail store.
b) A firearm carried in the open is subject to theft by any common snatch and grab thief - especially in a crowd where innocent persons could be injured in the scuffle.
c) A firearm carried in the open could be deemed an attractive nuisance inasmuch as it is a tempting target for thieves or others bent on mischief.
d) The tactical advantage of having a defensive firearm is lost if the criminal element is aware of the presence of an armed person.
TRIAL DAY, 22 May 2000:
On the day of our trial, we arrived in force, the defendant, a former employee who CCW while employed by the commissary and the employer, who had been robbed before and therefore condoned the carrying of concealed weapons by his employees. I was also a scheduled witness inasmuch as Mr. Smith would attempt to qualify me as an expert, thus allowing me to testify to the effect of the current law.
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We were still set on a jury trial while the Judge and prosecutor wanted the matter settled at the bench. Mr. Smith's skillful maneuvering, in chambers, and with our consent, arrived at a compromise. The trial would go before the bench: we would be allowed to present evidence and testimony as to the constitutionality of the law as well as the affirmative defense. The quid pro quo was the Judge would render a guilty or not guilty verdict without giving his reasons or opinions. This way, if Pat was found guilty, we could appeal on constitutional grounds claiming the decision was against the weight of the evidence. If Pat was found not guilty, we could tout to our legislators and the media that "as a result of a criminal trial where constitutional issued were raised" the defendant was found not-guilty.
It wasn't perfect, but we were almost assured of a not-guilty verdict and we wouldn't have the risk of a jury trial. Sometimes things don't work out exactly as planned. Prior to the trial, we had scripted the questions and possible answers for each witness. We wanted to be sure we got into the record the information and issues we felt were important to our cause. The arresting officer, during cross, admitted he:
a) Was sworn to uphold the Ohio and Federal Constitutions;
b) Had no clue as to what Ohio Article 1, Numbers 1 or 4 said;
c) Did not ask the defendant if he was CCW in accordance with the subject article;
d) Would have arrested the defendant if the gun had been in the open - not concealed - for inducing panic, disorderly conduct or pointing firearms or all of the above.
e) He would arrest anyone found CCW regardless of their excuse or defense. His understanding of the law was that the Affirmative Defense is an issue only the courts can decide.
Mr. Feely took the stand next. Very calmly he told of carrying large sums of money and how he believed in his constitutional rights to bear arms to protect himself and his property as accorded by the Ohio and the U.S. 
Constitutions.
After completion of Mr. Feely's testimony, but before any additional witnesses were called, Judge Crush stopped the trial and asked to see counsel in his chambers. Off the record, the Judge indicated he had heard enough and was not only prepared to render his decision, but was, with our permission, going to issue his reasons for his ruling! The Judge would find Pat Feely not-guilty because the law was unfair and should be changed inasmuch as there was no way a person could determine, without risking a conviction, what conduct is in violation of ORC 2923.12.
He gave us half an hour to accept his proposal. We all readily agree as this was the best of all worlds. Mr. Feely would be found innocent and we would not only have a Common Pleas Court ruling saying ORC 2923.12 is "unfair and should be changed" but because the finding was a result of evidence in a trial and not in a motion, the prosecutor could not appeal the decision.THE FALLOUT:
Immediately after conclusion of the trial, the defense team went to work contacting the news media and grass pro-gun organizations. By the next day it was all over the USA. Local radio, TV and newspapers all conducted interviews and ran articles on the case. To read more, click here
So far, at least six significant revelations have come of this attention to ORC 2923.12:
1) The Hamilton County Prosecutor was quoted by a local news team as saying (in response to questions of applying the Ohio CCW law), "Maybe this is something the legislature needs to look at."
2) The President of the Cincinnati FOP (Lodge #69) said in a televised interview, "There has never been a police officer killed by a person licensed to carry a gun." This public statement is significant because the state FOP is against civilians CCW.
3) The NRA has indicated they will assist if any additional funds are needed.
4) The Second Amendment Foundation has promised to help with the funding and filing of injunctions, restraining orders and declaratory judgements.
5) There are a lot of generous, concerned citizens who rallied for this case. We received donations from all over the USA (thanks to all who helped, CK).
6) Everyday there are many UNTRAINED persons carrying loaded firearms in Ohio. Men and women, from waitresses to musicians to truck drivers, who have no tactical or practical training in the use and consequences of lethal force. A CCW permit system would correct this situation by mandating training for those who wish to CCW.
FUTURE TACTICS:
We plan to send excerpted copies of the transcript and the decision along with an annotated depiction of Article I, Numbers I and 4, and the 9th Amendment to the U.S. Constitutions paper in the State, every state elected official, the State FOP, Ohio Highway Patrol and the Ohio Association of Chiefs of Police. To read more, click here
We will promote the policy, supported by threats of civil suits, that if a Law Enforcement Officer attempts to enforce ORC 2923.12 he would be violating that person's Ohio Article 1, #s 1 & 4 rights and his 9th Amendment U.S. Constitutional rights UNLESS the officer is able to prove that the person being arrested was not CCW because he was exercising his Art 1, #s 1 & 4 and 9th Amendment rights. In other words, it seems clear that the state has the burden of proof to show that one who is CCW is NOT exercising his Ohio Constitutional rights under Art 1, #s 1&4.
With the recently offered help of the Second Amendment Foundation, we intend to file an injunction precluding the State from enforcing ORC 2923.12. This should have the effect of forcing the legislature to enact a permit system for those who wish to CCW.
SUMMARY:
If you conduct extensive research, anticipate moves and counter moves, and most of all have what it takes to be a hero, as Mr. Feely did, you can win - the rule of law on our side. This significant case, connecting gun rights to inalienable rights, might be the start of the pendulum swinging back from political correctness to constitutional correctness. Copy it - send it to those who need enlightening.
POST SCRIPT:
As a result of the Feely case, Feely, the author and James Cohen brought a civil suit, Klein vs. Leis, to challenge the Ohio CCW laws. This new case reached the Ohio Supreme Court which ruled Ohioans only had the constitutional right to bear UNconcealed arms. In addition, it was obvious that the court let the state legislature know that if they didn't pass a concealed carry permit system the court was going to rule that we did have the right to CCW. Within months of the court's ruling, the Ohio legislature passed a CCW permit law.
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Jury Nullification
It is well within the prerogatives of a jury to compare a statute to constitutional meaning and intent. The legal term for this exercise of a jury's right and power is Jury Nullification. In other words the jury, even if it means disregarding the instructions of the sitting judge, may rule on the constitutionality of the subject law - they may nullify the law that breaches a state or the Federal Constitution.
In 1972, a federal court was asked to include Jury Nullification in its instructions to the jury [U.S. vs DOUGHERTY 473 F.2d 1113-1137]. On page 1137, the court spelled out its reason for not advising a jury of its rights & powers of Jury Nullification, "An explicit instruction to a jury conveys an implied approval that runs the risk of degrading the legal structure...."
DOUGHERTY only rules out instructions for Jury Nullification by judges. A judge's instruction to the jury almost always includes words to the effect that the jury's duty is to determine the facts in the case and apply these facts to the law, as defined by the judge. Ergo, just have your attorney tell the jury about Jury Nullification. Wrong! Attorneys, being officers of the court, may not encourage a jury to contradict a judge's instruction to the jury. This precedent has been well entrenched since the 1895 case of SPARF and HANSEN v. U.S. [156 U.S. 102,], Here the U.S. Supreme court ruled: "But upon principle, where the matter is not controlled by express constitutional or statutory provisions, it CANNOT be regarded as the RIGHT OF COUNSEL to dispute before the jury the law as declared by the court" [emphasis added].
However, these controls on attorneys are not applicable to statements made pro se [acting as one's own attorney] as acknowledged by DOUGHERTY [pg 1137]: "Thus, a defendant's ability to present his demeanor and often even a kind of testimony, without exposure to impeachment or cross-examination, may be a tactical consequence of pro-se representation, and even a moving cause of its invocation...."
Jury Nullification is not as license for jurors to judge the law to their own personal standard as noted in DOUGHERTY [pg 1134] "To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos."
For a jury to nullify a certain law because they don't like the law or feel the law is morally wrong is a violation of a juror's duty. NEVERTHELESS, JURORS ARE OBLIGATED, WHEN ADDRESSED DURING SUMMATION, TO DECLARE A LAW NULLIFIED IF IN FACT THEY, THE JURORS, FIND THE LAW VIOLATES, OR IS NOT IN ACCORDANCE WITH, THE CONSTITUTION - THE ONLY STANDARD TO WHICH THEY ARE PERMITTED TO JUDGE THE LAW IN QUESTION.
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ORC 2923.12:
As a result of Judge Thomas Crush's decision in Ohio v. Feely (Hamilton County Common Pleas court, Case #B9907498, decided 22 May 00) it should be very difficult for the state to enforce any gun controls including, but not limited to, carrying concealed weapons. The Court has taken notice, albeit 26 years after passage of ORC 2923.12, that the Ohio Constitution, Article I, Number I, when read in relation to Article I, Number 4, precludes statutory restrictions on the use of firearms for defense of one's self and property.
In an elaboration of the Declaration of Independence, Ohio's Bill of Rights, Article I, Number I, goes much further in defining INALIENABLE RIGHTS: "All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety."
When read in relation to Article I, Number 4 ("The people have the right to bear arms for their defense and security;") it is clear that not only do the good citizens of Ohio have a right to defend life, liberty and property, but they have the right to use a firearm in doing so.
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9th Amendment
The 9th Amendment to the U. S. Constitution is seldom quoted or referenced because at first glance it seems "vague" confusing or obscure. However, upon careful dissection it is clear it was written as a reminder that no person, corporation or government - no one - is permitted to negate or even reduce in meaning any of the "people's" rights. The amendment, says: THE ENUMERATION IN THE CONSTITUTION OF CERTAIN RIGHTS SHALL NOT BE CONSTRUED TO DENY OR DISPARAGE OTHERS RETAINED BY THE PEOPLE. (see: 9th Amendment by Klein for the complete details of the unique and, as yet, untested agrument). In other words:
THE NUMBER OF RIGHTS LISTED IN THE CONSTITUTION ARE NOT THE ONLY RIGHTS RETAINED BY THE PEOPLE. AND THAT THESE OTHER RIGHTS SHALL NOT BE DEGRADED, OR DEPRECIATED OR NEGATED BY REFUSAL TO ACCEPT THE TRUTH OR EXISTENCE THEREOF OR BY REFUSING THE PEOPLE, INDIVIDUALLY, THE MEANS TO SECURE THESE RIGHTS.
The unique and exclusive American rights of LIFE, LIBERTY, THE PURSUIT OF HAPPINESS, THE RIGHT TO PROTECT ONESELF, THE RIGHT TO BE LEFT ALONE, etc., etc., are in fact guarantees. Therefore, any attempt to DENY, or DISPARAGE any of them is in violation of the 9th Amendment. None of these rights are guaranteed by any government. These are God given, American recognized, rights. Conversely these rights do not require government action, but compel the benefactor to act out these rights on one's own. The person seeking to secure the right to protect his family, or any other rights, is obligated to commit some action, such as keeping and bearing arms. It is one's duty, individually - not the government's - to secure one's personal rights and guarantees. Protecting individual life and liberty is NOT a function of any government.
There is no Constitutional requirement for the Central Government to protect individuals or guarantee their Life, Liberty or any other right. In support of this non-guarantee are a number of court cases (Riss v. City of New York, 22 N.Y. 2d 579, 293 N.Y.S. 2d 897, 240 N.E. 2d 860 {1968} and others). Government's well established civilian defense role is that of protection against foreign invasion, keeping order and seeing that the people's constitutional rights are not violated by its agents, employees and officials (U.S. Constitution, Article I, Section 8; Article IV, Section 4; Article VI). Therefore, if any government is not obligated to protect one's Life individually, then the individual is responsible for his own protection. And to secure this protection he must not be disallowed the necessary tools. To deny the tools necessary to secure a right, disparages that right.
All Ohioans, acting individually, have the intrinsic right to use what means available to secure their LISTED as well as their UNLISTED rights. In other words, if a government DENIES the use of a tool of last resort to protect one's property or save one's LIFE, this government is disparaging an unenumerated right and thus is in violation of the Constitution's Ninth Amendment.
Today, the INALIENABLE ARMS of choice include rifles, shotguns, and handguns, but not necessarily machine guns or weapons of mass destruction. "Not necessarily," because in defense of large congregations such as a religious or ethnic organization, the need for greater fire power might be required for success. Bazookas, torpedoes, etc., might be needed, under the 2nd Amendment, to protect the people against a tyrannical state or national government, but small arms are most assuredly needed, permitted and required for individual protection against everyday Life and Liberty threats (see G&A May 2000).
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