                   OH SC Upholds Cleveland AW ban
                       -- text of opinion --
               OPINIONS OF THE SUPREME COURT OF OHIO

     The full texts of the opinions of the Supreme Court of Ohio are
being transmitted electronically beginning May 27, 1992, pursuant to
a pilot project implemented by Chief Justice Thomas J. Moyer.

     Please call any errors to the attention of the Reporter's
Office of the Supreme Court of Ohio. Attention:  Walter S. Kobalka,
Reporter, or Deborah J. Barrett, Administrative Assistant.  Tel.:
(614) 466-4961; in Ohio 1-800-826-9010.  Your comments on this pilot
project are also welcome.

     NOTE:  Corrections may be made by the Supreme Court to the full
texts of the opinions after they have been released electronically
to the public.  The reader is therefore advised to check the bound
volumes of Ohio St.3d published by West Publishing Company for the
final versions of these opinions.  The advance sheets to Ohio St.3d
will also contain the volume and page numbers where the opinions
will be found in the bound volumes of the Ohio Official Reports.



Arnold et al., Appellants, v. City of Cleveland, Appellee.

[Cite as Arnold v. Cleveland (1993),    Ohio St.3d    .]

Constitutional law -- In areas of individual rights and civil
liberties, the United States Constitution provides a floor below
which state court decisions may not fall -- Right to bear arms under
Section 4, Article I of the Ohio Constitution is not absolute --
Former Cleveland ordinance prohibiting possession and sale of
"assault weapons" in the city is a proper exercise of police power
granted by Ohio Constitution and does not violate Supremacy Clause
of the United States Constitution -- Sections 4307 through 4313,
Title 10, U.S. Code, and Parts 543 and 544, Title 32, C.F.R.,
construed and applied.

                            ---

1.   The Ohio Constitution is a document of independent
     force.  In the areas of individual rights and civil
     liberties, the United States Constitution, where
     applicable to the states, provides a floor below which
     state court decisions may not fall.  As long as state
     courts provide at least as much protection as the
     United States Supreme Court has provided in its
     interpretation of the federal Bill of Rights, state
     courts are unrestricted in according greater civil
     liberties and protections to individuals and groups.

2.   Section 4, Article I of the Ohio Constitution confers
     upon the people of Ohio the fundamental right to bear
     arms.  However, this right is not absolute.

3.   Former Cleveland Ordinance No. 415-89, prohibiting the
     possession and sale of "assault weapons" in the city
     of Cleveland, is a proper exercise of the police power
     under Section 3, Article XVIII of the Ohio
     Constitution and does not violate Section 4, Article I.

4.   Former Cleveland Ordinance No. 415-89 does not violate
     the Supremacy Clause of the United States
     Constitution.  (Sections 4307 through 4313, Title 10,
     U.S. Code, and Parts 543 and 544, Title 32, C.F.R.,
     construed and applied.)

                            ---

     (No. 92-105 -- Submitted April 7, 1993 -- Decided
August 11, 1993.)

     Appeal from the Court of Appeals for Cuyahoga County,
No. 59260.

     On February 17, 1989, the Cleveland City Council
enacted Ordinance No. 415-89 ("the ordinance").  The
ordinance banned the possession and sale of "assault
weapons" in the city of Cleveland.1  The ordinance provided
that it was unlawful for any person to "sell, offer or
display for sale, give, lend or transfer ownership of,
acquire or possess any assault weapon."  The ordinance
specified limited exceptions for certain individuals, such
as members of the armed forces and police officers.  The
ordinance further declared that any assault weapon was
contraband and was to be seized and disposed of in
accordance with R.C. 2933.43.  Violation of the ordinance
was classified as a misdemeanor of the first degree,
mandating a $1,000 fine and six months' incarceration.

     On May 12, 1989, appellants, Harry W. Arnold, Jr., and
others, filed their initial complaint in the Court of
Common Pleas of Cuyahoga County against appellee, city of
Cleveland.  Thereafter, appellants filed an amended
complaint and, eventually, sought leave to file a second
amended complaint.  In their second amended complaint,
appellants requested to have the ordinance declared
unconstitutional and, further, sought to enjoin appellee
from enforcing the ordinance.  Appellants' second amended
complaint contained twelve counts.

     Subsequently, appellee filed a motion to dismiss count
one for failure to state a claim upon which relief can be
granted and, in the alternative, requested that the trial
court grant it summary judgment as to that count.  In
support of that motion, appellee attached the affidavits of
council members denying that they had ever attended a
private meeting concerning the ordinance at issue.  In a
separate motion, appellee also requested that the court
dismiss counts two through twelve.  With respect to this
motion, no matters were presented outside the pleading.

     The trial court merged the two motions filed by
appellee, treating them as a single motion for summary
judgment.  The trial court granted appellee summary
judgment on all counts and, in part, concluded that the
ordinance was constitutional in all respects.

     On appeal, the court of appeals concluded, inter alia,
that the ordinance was a valid exercise of appellee's
police power pursuant to Section 3, Article XVIII of the
Ohio Constitution and that the ordinance was not violative
of Sections 1 or 4, Article I of the Ohio Constitution.
The court further concluded that the ordinance did not
conflict with Sections 4307 through 4313, Title 10, U.S.
Code or Parts 543 and 544, Title 32, C.F.R.  However, the
court determined that the ordinance, in prohibiting the
transportation of certain weapons through the city by
virtue of prohibiting possession of those weapons,
conflicted with Section 926A, Title 18, U.S. Code and,
therefore, violated the Supremacy Clause.2  The court of
appeals also reversed the trial court and remanded the
cause with respect to count one of appellants' complaint.3
Accordingly, the court of appeals affirmed the judgment of
the trial court in part and reversed it in part.

     The cause is now before this court pursuant to the
allowance of a motion to certify the record.


     Porter, Wright, Morris & Arthur, Richard M. Markus,
Daniel F. Gourash and David C. Tryon, for appellants.

     Danny R. Williams, Director of Law, and Kathleen A.
Martin, Chief Assistant Director of Law, for appellee.

     Scott R. Mote, urging reversal for amici curiae,
League of Ohio Sportsmen, Law Enforcement Alliance of
America, American Federation of Police, Ohio Gun Collectors
Association, Jews for the Preservation of the Second
Amendment, Heartland Institute, Ohio Women, and Ohio Rifle
and Pistol Association.

     Keating, Muething & Klekamp and Richard L. Creighton,
Jr., urging reversal for amicus curiae, Congress of Racial
Equality, Inc.

     Stefan B. Tahmassebi; Porter, Wright, Morris & Arthur,
Richard M. Markus, Daniel F. Gourash, David C. Tryon and K.
Bradley Mellor, urging reversal for amicus curiae, National
Rifle Association of America.

     Warhola, O'Toole, Loughman, Alderman & Stumphauzer and
Sally Drews Brodbeck, urging reversal for amicus curiae,
Ohio Constitution Defense Council.

     Dan L. Ferguson, urging reversal for amici curiae,
Larry G. Beaver et al.

     Jones, Day, Reavis & Pogue, Erwin N. Griswold and
Edwin L. Fountain, urging affirmance for amici curiae,
Fraternal Order of Police of Ohio, Inc., Fraternal Order of
Police Cleveland Lodge, Ohio Association of Chiefs of
Police and Center to Prevent Handgun Violence Legal Action
Project.

     Dennis A. Henigan and Judith Bonderman, urging
affirmance for amicus curiae, Center to Prevent Handgun
Violence Legal Action Project.

     Ulmer & Berne, Michael N. Ungar, Marsha I. Paley and
Kimberly Brown Schroeder, urging affirmance for amici
curiae, Handgun Control Federation of Ohio, Inc. and Ohio
Chapter of the American Academy of Pediatrics.

     Lee I. Fisher, Attorney General, Theresa Rittinger
Schaefer, Andrew S. Bergman and Robert A. Zimmerman,
Assistant Attorneys General, urging affirmance for amicus
curiae, Ohio Attorney General.


     Douglas, J.     The underlying issue in this appeal
concerns the constitutionality of an ordinance which bans
the possession and sale of "assault weapons" in the city of
Cleveland.  Appellants challenge this legislation on
essentially two grounds.  First, appellants contend that
the ordinance is an overbroad restriction on their
constitutional right to bear arms and defend themselves
and, thus, is in violation of Sections 1 and 4, Article I
of the Ohio Constitution.  Second, appellants maintain that
the ordinance violates the Supremacy Clause of the federal
Constitution.

                             I

                             A

              Presumption of Constitutionality

     In determining the constitutionality of an ordinance,
we are mindful of the fundamental principle requiring
courts to presume the constitutionality of lawfully enacted
legislation.  Univ. Hts. v. O'Leary (1981), 68 Ohio St.2d
130, 135, 22 O.O.3d 372, 375, 429 N.E.2d 148, 152; and
Hilton v. Toledo (1980), 62 Ohio St.2d 394, 396, 16 O.O.3d
430, 431, 405 N.E.2d 1047, 1049.  Further, the legislation
being challenged will not be invalidated unless the
challenger establishes that it is unconstitutional beyond a
reasonable doubt.  Id.  See, also, Hale v. Columbus (1990),
63 Ohio App.3d 368, 372, 578 N.E.2d 881, 883.

                             B

              State and Federal Constitutions

     Section 4, Article I of the Ohio Constitution provides
that:

     "The people have the right to bear arms for their
defense and security; but standing armies, in time of
peace, are dangerous to liberty, and shall not be kept up;
and the military shall be in strict subordination to the
civil power."

     Appellants maintain that the ordinance violates
Section 4, Article I of the Ohio Constitution.4
Specifically, appellants urge that the ordinance acts to
deny them the fundamental "individual" right to bear arms
and defend themselves.  Appellants' argument places at
issue the scope of Section 4, Article I, which has not been
previously considered by this court.

     The question as to whether individuals have a
fundamental right to bear arms has, seemingly, been decided
in the negative under the Second Amendment to the United
States Constitution.5  See, generally, United States v.
Cruikshank (1876), 92 U.S. 542, 553, 23 L.Ed. 588, 591-592;
Presser v. Illinois (1886), 116 U.S. 252, 264-265, 6 S.Ct.
580, 584, 29 L.Ed. 615, 618-619; and United States v.
Miller (1939), 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206.
See, also, Quilici v. Village of Morton Grove (C.A.7,
1982), 695 F.2d 261, 269, certiorari denied (1983), 464
U.S. 863, 104 S.Ct. 194, 78 L.Ed.2d 170; Rabbitt v. Leonard
(1979), 36 Conn. Supp. 108, 110, 413 A.2d 489, 490;
Commonwealth v. Davis (1976), 369 Mass. 886, 890, 343
N.E.2d 847, 850; and E. Cleveland v. Scales (1983), 10 Ohio
App.3d 25, 28-29, 10 OBR 32, 35-36, 460 N.E.2d 1126,
1130-1131.

     In Presser, supra, the United States Supreme Court
considered a claim that an Illinois statute, which forbade
men to associate together as military organizations or to
drill or parade with arms in public without authorization,
violated the Second Amendment.  Relying on Cruikshank,
supra, the court rejected that claim and reasoned that:

     "We think it clear that the sections under
consideration * * * do not infringe the right of the people
to keep and bear arms.  But a conclusive answer to the
contention that this amendment prohibits the legislation in
question lies in the fact that the amendment is a
limitation only upon the power of Congress and the National
government, and not upon that of the States.  It was so
held by this court in the case of United States v.
Cruikshank, 92 U.S. 542, 553, * * * that the right of the
people to keep and bear arms 'is not a right granted by the
Constitution.  Neither is it in any manner dependent upon
that instrument for its existence.  The Second Amendment
declares that it shall not be infringed, but this, as has
been seen, means no more than it shall not be infringed by
Congress.  This is one of the amendments that has no other
effect than to restrict the powers of the National
government, leaving the people to look for their protection
against any violation by their fellow-citizens of the
rights it recognizes to what is called in The City of New
York v. Miln, 11 Pet. [102] 139, "the powers which relate
to merely municipal legislation, or what was perhaps more
properly called internal police," "not surrendered or
restrained" by the Constitution of the United States.'"
(Emphasis added.)  Presser, supra, at 264-265, 6 S.Ct. at
584, 29 L.Ed. at 618-619.

     Subsequently, in Miller, supra, the court considered
the scope of the Second Amendment.  Miller involved a
federal Act which prohibited the transportation in
interstate commerce of unregistered shotguns having barrels
less than eighteen inches in length.  The court disagreed
with the defendants' argument that the federal restriction
violated the Second Amendment.  The court determined that
the defendants failed to prove at trial that an
eighteen-inch barrel shotgun had any "reasonable
relationship to the preservation or efficiency of a well
regulated militia * * *."  Id., 307 U.S. at 178, 59 S.Ct.
at 818, 83 L.Ed. at 1209.

     The court, in reaching that determination, put the
Second Amendment into perspective and observed that:

     "The Constitution as originally adopted granted to the
Congress power -- 'To provide for calling forth the Militia
to execute the Laws of the Union, suppress Insurrections
and repel Invasions; To provide for organizing, arming, and
disciplining, the Militia, and for governing such Part of
them as may be employed in the Service of the United
States, reserving to the States respectively, the
Appointment of the Officers, and the Authority of training
the Militia according to the discipline prescribed by
Congress.'  With obvious purpose to assure the continuation
and render possible the effectiveness of such forces the
declaration and guarantee of the Second Amendment were
made.  It must be interpreted and applied with that end in
view."  (Emphasis added.)  Id., 307 U.S. at 178, 59 S.Ct.
at 818, 83 L.Ed. at 1209.

     The vast majority of decisions which have considered
the Second Amendment convey that this amendment is
applicable to the federal government.  These decisions
signify, and history supports the position, that the
amendment was drafted not with the primary purpose of
guaranteeing the rights of individuals to keep and bear
arms but, rather, to allow Americans to possess arms to
ensure the preservation of a militia.6  This view has been
stated by some courts and legal scholars to be a
"collective" right as opposed to an "individual" concept.7

     We note that the Second Amendment has not yet been
held to be applicable to the states.  The amendment has not
been absorbed either directly or through selective
incorporation in the Fourteenth Amendment.  See Malloy v.
Hogan (1964), 378 U.S. 1, 4, 84 S.Ct. 1489, 1491, 12
L.Ed.2d 653, 656-657, fn. 2.  See, also, State v. Kessler
(1980), 289 Ore. 359, 362, 614 P.2d 94, 95, fn. 4; Kellogg
v. Gary (Ind. 1990), 562 N.E.2d 685, 692; and Ashman,
Handgun Control by Local Government (1982), 10 N. Ky.
L.Rev. 97, 100-101.

                             C

           State Constitutionalism/New Federalism

     The United States Supreme Court has repeatedly
reminded state courts that they are free to construe their
state constitutions as providing different or even broader
individual liberties than those provided under the federal
Constitution.  See, e.g., City of Mesquite v. Aladdin's
Castle, Inc. (1982), 455 U.S. 283, 293, 102 S.Ct. 1070,
1077, 71 L.Ed.2d 152, 162 ("* * * [A] state court is
entirely free to read its own State's constitution more
broadly than this Court reads the Federal Constitution, or
to reject the mode of analysis used by this Court in favor
of a different analysis of its corresponding constitutional
guarantee."); and California v. Greenwood (1988), 486 U.S.
35, 43, 108 S.Ct. 1625, 1630, 100 L.Ed.2d 30, 39

("Individual States may surely construe their own
constitutions as imposing more stringent constraints on
police conduct than does the Federal Constitution.").  See,
also, Pruneyard Shopping Ctr. v. Robins (1980), 447 U.S.
74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741, 752.
Further, in Michigan v. Long (1983), 463 U.S. 1032, 1041,
103 S.Ct. 3469, 3476-3477, 77 L.Ed.2d 1201, 1214-1215, the
Supreme Court reinforced its comments in this area by
declaring that the state courts' interpretations of state
constitutions are to be accepted as final, as long as the
state court plainly states that its decision is based on
independent and adequate state grounds.

     A noticeable trend has recently emerged among state
courts.8  It appears that more state courts are
increasingly relying on their constitutions when examining
personal rights and liberties.  See Davenport v. Garcia
(Tex. 1992), 834 S.W.2d 4, 12, fn. 21.  See, also, State v.
Johnson (1975), 68 N.J. 349, 353, 346 A.2d 66, 67.  A
common thread found in the state court decisions which have
relied exclusively on the state's constitution is that
states may not deny individuals or groups the minimum level
of protections mandated by the federal Constitution.
However, there is no prohibition against granting
individuals or groups greater or broader protections.

     The recent movement by state courts to rely on their
constitutions, rather than on the federal Constitution, has
been labeled "state constitutionalism" or "new
federalism."  This movement has met with considerable
approval.  Davenport, supra, 834 S.W.2d at 12, fn. 22.
See, also, Brennan, State Constitutions and the Protection
of Individual Rights (1977), 90 Harv. L.Rev. 489, and
Comment, Interpretation and Authority in State
Constitutionalism (1993), 106 Harv. L.Rev. 1147.  One court
has pointedly stated that "[w]hen a state court interprets
the constitution of its state merely as a restatement of
the Federal Constitution, it both insults the dignity of
the state charter and denies citizens the fullest
protection of their rights."  Davenport, supra, 834 S.W.2d
at 12.

     In joining the growing trend in other states, we
believe that the Ohio Constitution is a document of
independent force. In the areas of individual rights and
civil liberties, the United States Constitution, where
applicable to the states, provides a floor below which
state court decisions may not fall.  As long as state
courts provide at least as much protection as the United
States Supreme Court has provided in its interpretation of
the federal Bill of Rights, state courts are unrestricted
in according greater civil liberties and protections to
individuals and groups.

                             D

                 Right to Bear Arms in Ohio

     We are cognizant of the current controversy that
exists in Ohio and across our nation over the right of an
individual to possess firearms.  If debated today as a new
issue, such a provision in a state constitution like ours
might be completely different.  However, it is our charge
to determine and not to disturb the clear protections
provided by the drafters of our Constitution.

     The language of Section 4, Article I of the Ohio
Constitution is clear.  This provision is divided by two
semicolons, coordinating three independent clauses.  Rather
than focusing merely on the preservation of a militia, as
provided by the Second Amendment, the people of Ohio chose
to go even further.  Section 4, Article I not only suggests
a preference for a militia over a standing army, and the
deterrence of governmental oppression, it adds a third
protection and secures to every person a fundamental
individual right to bear arms for "their defense and
security * * *."  (Emphasis added.)  This clause was
obviously implemented to allow a person to possess certain
firearms for defense of self and property.  Accord State v.
Hogan (1900), 63 Ohio St. 202, 218-219, 58 N.E. 572, 575.

     The original Ohio Constitution was adopted in 1802.
The Constitution was revised in 1851 and the 1802 version
of the right-to-bear-arms clause was changed.9  There is no
reported debate over the right-to-bear-arms language as
used in either the 1802 or 1851 versions.  We can only
surmise that no debate ensued over these provisions because
the right to possess and use certain arms under certain
circumstances was widely recognized and uncontroversial.

     The right to defend oneself has always been permitted
in this nation.  Further, this privilege has been
recognized in both a civil and criminal context since about
1400 in England.  Prosser & Keeton, The Law of Torts (5 Ed.
1984) 124, Section 19.  "The privilege extends to the use
of all reasonable force to prevent any threatened harmful
or offensive bodily contact, or any confinement * * *."
(Emphasis added.)  Id. at 124.  This privilege also
includes the right, under appropriate circumstances, to
defend one's family and property.10

     The right of defense of self, property and family is a
fundamental part of our concept of ordered liberty.  To
deprive our citizens of the right to possess any firearm
would thwart the right that was so thoughtfully granted by
our forefathers and the drafters of our Constitution.  For
many, the mere possession of a firearm in the home offers a
source of security.  Furthermore, given the history of our
nation and this state, the right of a person to possess
certain firearms has indeed been a symbol of freedom.

     Sir William Blackstone, an often-cited and
well-recognized commentator in the area of personal rights,
recognized the fundamental concept to have and use arms for
self-preservation and defense.  Pronouncing this concept a
personal liberty, he said:

     "And we have seen that these rights consist,
primarily, in the free enjoyment of personal security, of
personal liberty, and of private property.  So long as
these remain inviolate, the subject is perfectly free; for
every species of compulsive tyranny and oppression must act
in opposition to one or other of these rights, having no
other object upon which it can possibly be employed.  To
preserve these from violation, it is necessary that the
constitution * * * be supported in its full vigor * * *.

And all these rights and liberties it is our birthright to
enjoy entire; unless where the laws of our country have
laid them under necessary restraints.  Restraints in
themselves so gentle and moderate, as will appear upon
farther inquiry, that no man of sense or probity would wish
to see them slackened.  * * *"  1Blackstone's Commentaries,
Of the Absolute Right of Individuals (1765) 144.

     Fundamental rights (personal liberties) are those
rights which are explicitly or implicitly embraced by our
Constitution and the federal Constitution.11  Our goal
should be to preserve the existence of these sacred
rights.  However, to achieve this objective, the people of
our nation, and this state, cannot have unfettered
discretion to do as we please at all times.  Neither the
federal Bill of Rights nor this state's Bill of Rights,
implicitly or explicitly, guarantees unlimited rights.

     For instance, the protections of assembly, speech and
press found in the First Amendment and Sections 3 and 11,
Article I of the Ohio Constitution, while fundamental in
our free society, cannot, in order to preserve these
rights, be unlimited.  For good reason, one does not have
the right to yell "fire" in a crowded theater, nor are
persons with opinions or beliefs always entitled to express
them on an unlimited basis to a group in any public place
at any time.  Planned Parenthood Assn. of Cincinnati, Inc.
v. Project Jericho (1990), 52 Ohio St.3d 56, 59, 556 N.E.2d
157, 161.  Likewise, the freedom granted to the press is
not unlimited.  Defamation laws limit, albeit slightly, the
absoluteness of the right.  A clear limit is also found in
Section 11, Article I of the Ohio Constitution which
states, in part, that "[e]very citizen may freely * * *
publish his sentiments on all subjects, being responsible
for the abuse of the right * * *."  (Emphasis added.)

     Pursuant to the Fourth Amendment and Section 14,
Article I of the Ohio Constitution, "the people [are] to be
secure in their persons, [and] houses, * * * against
unreasonable searches and seizures * * *."  As a general
rule, searches conducted without a warrant are deemed
unreasonable.  However, distinct exceptions to the search
warrant requirement have been recognized, permitting police
officers, under certain circumstances, to obtain
incriminating evidence without a warrant.

     Further, the right to counsel found in the Sixth
Amendment and Section 10, Article I of the Ohio
Constitution is not an absolute right.  Counsel may have to
be appointed for an indigent, as an example, but the
appointment need not be a specific person in accordance
with a defendant's choice.

     Yet another example can be found in the Seventh
Amendment and Section 5, Article I of the Ohio
Constitution, pertaining to the right to trial by jury.
The right to trial by jury is obviously a fundamental right
but even given the breadth of the language "* * * the right
of trial by jury shall be preserved * * *" (Seventh
Amendment) and "[t]he right of trial by jury shall be
inviolate * * *" (Section 5, Article I), we know that the
right is not absolute but has been subject to reasonable
restrictions, such as those found in Civ.R. 38, 47 and 48.

     "'Liberty implies the absence of arbitrary restraint,
not immunity from reasonable regulations and prohibitions
imposed in the interest of the community.'"  Kraus v.
Cleveland (1955), 163 Ohio St. 559, 561, 57 O.O. 1, 2, 127
N.E.2d 609, 610.  In Kraus, quoting Jacobson v.
Massachusetts (1905), 197 U.S. 11, 26, 25 S.Ct. 358, 361,
49 L.Ed. 643, 649-650, this court further observed that:

     "'* * * [T]he liberty secured by the Constitution of
the United States to every person within its jurisdiction
does not import an absolute right in each person to be, at
all times and in all circumstances, wholly freed from
restraint.  There are manifold restraints to which every
person is necessarily subject for the common good.  On any
other basis organized society could not exist with safety
to its members.  Society based on the rule that each one is
a law unto himself would soon be confronted with disorder
and anarchy.  Real liberty for all could not exist under
the operation of a principle which recognizes the right of
each individual person to use his own, whether in respect
of his person or his property, regardless of the injury
that may be done to others.'"  Kraus v. Cleveland, supra,
at 561-562, 57 O.O. at 2, 127 N.E.2d at 610-611.

     There is no question that the drafters of both the
federal and state Bill of Rights intended to grant to the
people broad protections in many areas.  These protections
are imperative to the existence and continuance of our
democratic society.  Nevertheless, we must be cognizant
that these freedoms, if made absolute, might result in the
creation of public safety problems.  Hence, we must be able
to draw a line when certain rights have foreseeable
consequences of causing harm to others.

     Therefore, based on the foregoing, we find that
Section 4, Article I of the Ohio Constitution confers upon
the people of Ohio the fundamental right to bear arms.
However, this right is not absolute.

                             E

                        Police Power

     The authority to regulate or limit constitutional
guarantees has been commonly referred to as the police
power.  In Ohio, the grant of police power to a
municipality is set forth in Section 3, Article XVIII of
the Ohio Constitution, which provides that:

     "Municipalities shall have authority to exercise all
powers of local self-government and to adopt and enforce
within their limits such local police, sanitary and other
similar regulations, as are not in conflict with general
laws."

     This court has, on numerous occasions, stated the
standards a court must follow in review of an enactment
under the police power.  See Cincinnati v. Correll (1943),
141 Ohio St. 535, 26 O.O. 116, 49 N.E.2d 412.  See, also,
Kraus, supra, and Benjamin v. Columbus (1957), 167 Ohio St.
103, 4 O.O.2d 113, 146 N.E.2d 854.  In Correll, supra, at
539, 26 O.O. at 118, 49 N.E.2d at 414, this court stated
that:

     "Laws or ordinances passed by virtue of the police
power which limit or abrogate constitutionally guaranteed
rights must not be arbitrary, discriminatory, capricious or
unreasonable and must bear a real and substantial relation
to the object sought to be obtained, namely, the health,
safety, morals or general welfare of the public."

     The ordinance in question was passed by virtue of the
police power of the city of Cleveland.  Section 628.01 of
the ordinance, entitled "Findings," clarified, among other
things, that the purpose sought to be obtained was the
safety and welfare of the people of Cleveland.  Section
628.01 provided that:

     "The Council finds and declares that the proliferation
and use of assault weapons [are] resulting in an
ever-increasing wave of violence in the form of
uncontrolled shootings in the City, especially because of
an increase in drug trafficking and drug-related crimes,
and pos[e] a serious threat to the health, safety, welfare
and security of the citizens of Cleveland.  The Council
finds that the primary purpose of assault weapons is
antipersonnel and any civilian application or use of such
weapons is merely incidental to such primary antipersonnel
purpose.  The Council further finds that the function of
this type of weapon is such that any use as a recreational
weapon is far outweighed by the threat that the weapon will
cause injury and death to human beings.  Therefore, it is
necessary to establish regulations to restrict the
possession or sale of these weapons.  It is not the intent
of the Council to place restrictions on the use of weapons
which are primarily designed and intended for hunting,
target practice, or other legitimate sports or recreational
activities."

     Legislative concern for public safety is not only a
proper police power objective -- it is a mandate.  This
court has established that firearm controls are within the
ambit of the police power.  See State v. Nieto (1920), 101
Ohio St. 409, 413-415, 130 N.E. 663, 664, and Mosher v.
Dayton (1976), 48 Ohio St.2d 243, 247-248, 2 O.O.3d 412,
414, 358 N.E.2d 540, 542-543.  Accord Hale, supra, 63 Ohio
App.3d at 376, 578 N.E.2d at 886.

     In Mosher, supra, at 247-248, 2 O.O.3d at 414, 358
N.E.2d at 542-543, this court concluded that an ordinance,
which required individuals having or acquiring handguns to
possess an identification card issued by the city of
Dayton, was not violative of either Section 4, Article I or
the Second Amendment.  The court reasoned that neither the
federal nor the state constitution states that the right to
bear arms is supreme over the authority of a municipality
under the police power.  Id. at 248, 2 O.O.3d at 414, 358
N.E.2d at 543.  The court further observed that the public
purpose of the ordinance was to safeguard the public from
the dangers of illegal weapons and, therefore, such weapons
were a proper subject for reasonable regulation.  Id. at
248, 2 O.O.3d at 414-415, 358 N.E.2d at 543.

     That the right to bear arms is not an unlimited right
and is subject to reasonable regulation is an accepted
principle among other jurisdictions.  See, generally,
Quilici, supra, 695 F.2d at 268-269; State v. Fennell
(1989), 95 N.C. App. 140, 143, 382 S.E.2d 231, 233; and
State v. LaChapelle (1990), 234 Neb. 458, 460, 451 N.W.2d
689, 690.  The majority of the cases which have decided
this issue have taken the position that legislation which
regulates or prohibits the possession or use of certain
arms must be reasonable to be a valid exercise of the
police power.

     To meet the divergent needs and evolving conditions of
society, legislation pursuant to the police power needs to
be enacted.  Almost every exercise of this authority will,
in most if not all instances, interfere with a personal or
collective liberty.  Therefore, the test is one of
reasonableness.12  Here, the question is whether the
legislation is a reasonable regulation, promoting the
welfare and safety of the people of Cleveland.

     In reviewing the reasonableness of an ordinance, we
are guided by certain principles.  It is not a court's
function to pass judgment on the wisdom of the legislation,
for that is the task of the legislative body which enacted
the legislation.  Olin Mathieson Chem. Corp. v. Ontario
Store (1967), 9 Ohio St.2d 67, 70, 38 O.O.2d 163, 165, 223
N.E.2d 592, 594.  Further, "'[u]nless there is a clear and
palpable abuse of power, a court will not substitute its
judgment for legislative discretion.  Local authorities are
presumed to be familiar with local conditions and to know
the needs of the community.'"  Porter v. Oberlin (1965), 1
Ohio St.2d 143, 149, 30 O.O.2d 491, 494, 205 N.E.2d 363,
368, quoting Allion v. Toledo (1919), 99 Ohio St. 416, 124
N.E. 237, syllabus.

     Keeping the foregoing principles in mind, we believe
that the ordinance, while admittedly broad in its scope, is
a reasonable exercise of the municipality's police power.
The ultimate objective of the legislation appears to be
public safety.  To reach this end, the municipality is
attempting to limit the accessibility of certain generally
recognized dangerous firearms.

     Appellants and various amici curiae have presented
numerous materials and statistical data, urging that the
instant gun control legislation is not needed.  However,
even if the statistics presented are accurate, this does
not diminish the public safety threat of assault weapons,
or demonstrate that the ordinance is unreasonable or
arbitrary.  The prohibition of a harmful act need not be
postponed until it occurs.  Benjamin, supra, 167 Ohio St.
at 112, 4 O.O.2d at 118, 146 N.E.2d at 861.

     Any form of gun control legislation is destined to
attract much attention.  That does not change the fact that
there must be some limitation on the right to bear arms to
maintain an orderly and safe society while, at the same
time, moderating restrictions on the right so as to allow
for the practical availability of certain firearms for
purposes of hunting, recreational use and protection.  In
our opinion, appellee has, under the present legislation,
properly balanced these competing interests.

     Appellants concede that appellee may regulate, within
reason, the manner in which firearms are purchased or
used.  Appellants insist, however, that the ordinance under
review goes beyond regulating the manner of acquisition and
use and, instead, acts as a prohibition on the right to
possess firearms, which is beyond the scope of the police
power.

     Appellants' contention lacks merit.  This court has
commented that the police power includes the power to
prohibit.  See Porter, supra, 1 Ohio St.2d at 149, 30
O.O.2d at 495, 205 N.E.2d at 368; and Benjamin, supra, 167
Ohio St. at 109, 4 O.O.2d at 116, 146 N.E.2d at 859.  See,
also, Fennell, supra, at 143-144, 382 S.E.2d at 233.

     The ordinance at issue affects a class of firearms.
Clearly, the city would have exceeded its authority under
Section 3, Article XVIII, and would have violated Section
4, Article I if it had banned all firearms.  For this
reason, we are not persuaded by appellants' argument that
by banning certain firearms "there is no stopping point"
and legislative bodies will have "the green light to
completely ignore and abrogate an Ohioan's right to bear
arms."

     Accordingly, we believe that appellants can prove no
set of facts entitling them to relief.13  Therefore, we
find that former Cleveland Ordinance No. 415-89,
prohibiting the possession and sale of "assault weapons" in
the city of Cleveland, was a proper exercise of the police
power under Section 3, Article XVIII of the Ohio
Constitution and does not violate Section 4, Article I.

                             II

                     Supremacy Argument

     Appellant's contend that the ordinance violates Clause
2, Article VI of the United States Constitution.
Specifically, appellants allege that the ordinance is at
variance with Sections 4307 through 4313, Title 10, U.S.
Code and Parts 543 and 544, Title 32, C.F.R.

     Sections 4307 through 4313, Title 10, U.S.Code
establish a Civilian Marksmanship Program ("CMP").  See
Section 544.4(a), Title 32, C.F.R.  Section 4307, Title 10,
U.S. Code sets forth that the President may detail a
commissioned officer of the Army or Marine Corps as
director of civilian marksmanship ("DCM").  The DCM is to
serve under the Secretary of the Army ("SA").  The SA is
authorized, among other things, to provide for the
operation and maintenance of rifle ranges, the instruction
of citizens in marksmanship, and the promotion of practice
in the use of rifled arms.  Sections 4308(a)(1), (2) and
(3).

     Part 543, Title 32, C.F.R. is entitled "Promotion of
Rifle Practice."  The purpose of this regulation is to
govern the SA's "program for promoting marksmanship
training with rifled arms among citizens of the United
States."  Section 543.1.  This includes classes of
instruction and the issue of arms, ammunition and other
necessary supplies.  Table 1 to Subpart A of Part 543.
Subpart B of Part 543 provides for the organization and
enrollment of shooting clubs.  The DCM has management
control of the program, providing support and assistance to
the shooting clubs who participate in the program.  Section
543.5.  Section 543.10 addresses the issuance of
government-owned materials.  Clubs that comply with Part
543 may be issued marksmanship training materials.  Section
543.10(a).  However, all government property is dispersed
to affiliated clubs and not to individuals.  Id.  Such
property is to be used solely for supporting the club's
program.  Id.  Section 543.17 details the care and
safekeeping of arms, ammunition and equipment.  This
section specifies that the club officer and designated
leader of affiliated clubs are responsible for the care and
safekeeping of government property issued, which includes
maintaining the property and preventing the property's
misuse or use by unauthorized persons.  Section
543.17(a)(1) and (2).  Further, paragraph (g)(5)(v) of
Section 543.17 provides, in part, that storage will
"conform to local ordinances and regulations * * *," and
Paragraph (g)(5)(vi) provides that "[s]torage at a military
or law enforcement facility is encouraged when deemed
feasible by the club."  Section 543.23 directs that
civilian organizations are responsible for furnishing their
own arms and ammunition.

     Part 544, Title 32, C.F.R. is entitled "Civilian
Marksmanship."  The purpose of this regulation is to
prescribe the "policies, procedures, and responsibilities
for the National Matches and other
excellence-in-competition * * * matches."  Section 544.1.
National matches are conducted as part of the CMP.  Section
544.4(a).  Further, as part of the CMP, "these matches are
intended to promote the national defense.  The CMP provides
and encourages voluntary marksmanship training [sic] for
persons who are not reached by training programs of the
Armed Forces and who might be called into service in an
emergency."  Section 544.4(b).  Section 544.9 states that
matches will be held at Camp Perry (Port Clinton, Ohio), or
at other places recommended by the DCM and approved by the
SA.  The types of firearms to be used are described in
Section 544.52.  Rifles that may be used are the caliber
.30 M1 series, the caliber 7.62mm M14 series, and the
caliber 5.56mm M16 series.  Competitors may use these
rifles as issued by the U.S. Army or commercial
equivalents.  Sections 544.52(a), (b) and (c).  Those
competitors who use the 7.62mm M14 series or 5.56mm M16
series or the commercial equivalents are required to use
the standard twenty- or thirty-box magazine when firing
during a match.  Section 544.52(c)(5).  Pistols that may be
used are the caliber .45M1911 or M1911A1.  Section
544.52(d).  Competitors may use these pistols as issued by
the U.S. Armed Forces or, as with rifles, a commercial
equivalent.  Id.  All ammunition used by the competitors is
to be issued by the government.  Section 544.57.

     When considering the constitutionality of a local
ordinance under the Supremacy Clause, we start with the
fundamental principles that the ordinance in question is to
be analyzed as if it were a law with statewide application,
Hillsborough Cty. v. Automated Med. Laboratories, Inc.
(1985), 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d
714, 721, and that the local police powers are not to be
assumed to be displaced by federal law absent a clear and
manifest purpose of Congress, Rice v. Santa Fe Elevator
Corp. (1947), 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91
L.Ed. 1447, 1459.

     Congressional intent to preempt state or local
authority can be drawn from the explicit terms of the
federal law.  Wisconsin Pub. Intervenor v. Mortier (1991),
501 U.S.    , 111 S.Ct. 2476, 2481, 115 L.Ed.2d 532, 542.
Further, intent can be derived implicitly "if a scheme of
federal regulation is 'so pervasive as to make reasonable
the inference that Congress left no room for the States to
supplement it,' if 'the Act of Congress * * * touch[es] a
field in which the federal interest is so dominant that the
federal system will be assumed to preclude enforcement of
state laws on the same subject,' or if the goals 'sought to
be obtained' and the 'obligations imposed' reveal a purpose
to preclude state authority."  Id. at    , 111 S.Ct. at
542-543, 115 L.Ed.2d at 2481-2482, citing Rice, supra, at
230, 67 S.Ct. at 1152, 91 L.Ed. at 1459.

     In addition, we are aware that "[e]ven when Congress
has not chosen to occupy a particular field, pre-emption
may occur to the extent that state and federal law actually
conflict.  Such a conflict arises when 'compliance with
both federal and state regulations is a physical
impossibility,' Florida Lime & Avocado Growers, Inc. v.
Paul, 373 U.S. 132, 142-143[ 83 S.Ct. 1210, 1217, 10
L.Ed.2d 248] (1963), or when a state law 'stands as an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress,' Hines v. Davidowitz,
312 U.S. 52[ 61 S.Ct. 399, 85 L.Ed. 581] (1941)."
Wisconsin Public Intervenor, supra, 501 U.S. at    , 111
S.Ct. at 543, 115 L.Ed.2d at 2482.

     Appellants' Supremacy Clause argument is not premised
on the proposition that Sections 4307 through 4313, Title
10, U.S. Code and the federal regulations associated with
the federal law, either explicitly or implicitly, preempt
the ordinance.  Instead, appellants urge that the ordinance
stands as an obstacle to the achievement of the CMP's
purposes and objectives.  We disagree.

     In essence, the federal law was enacted to promote
marksmanship training among citizens of the United States
and to promote the national defense through competition.
It is clear to us that the federal law and regulations
anticipated an alliance between federal and local
governments.

     In particular, with respect to promoting marksmanship
training with rifled arms among United States citizens,
Congress explicitly provided that firearms issued to
affiliated clubs participating in the CMP must be stored in
compliance with local ordinances, Section 543.17(g)(5)(v),
that supervisory personnel must enforce "compliance with
local safety and other regulations," Section
543.22(a)(l)(ii), and that violations of local firearm
regulations are grounds for denying the affiliation of a
shooting club with the CMP, Section 543.9(d)(1)(iii)(D).
Further, federal law supports the use of rifles for target
practice.  As the ordinance made plain, it was not the
intent of the council members to preclude the use of all
firearms for target practice.

     The court of appeals concluded, and we agree, that the
ordinance did not impede marksmanship training in the city
of Cleveland since the people of Cleveland could practice
marksmanship without those firearms that have been
classified as "assault weapons."  Additionally, we also
agree with the court of appeals that the ordinance does not
stand in the way of competitions which were intended to
promote the national defense.  The people of Cleveland, by
virtue of the ordinance, were not prohibited from competing
in national matches.  This is evident by the fact that
certain firearms could have been loaned by authorities to
participants.  Section 544.53.

     Thus, we hold that former Cleveland Ordinance No.
415-89 does not violate the Supremacy Clause to the United
States Constitution.

                            III

                         Conclusion

     Therefore, based on the foregoing, it is ordered that
final judgment be entered for appellee.

                                    Judgment accordingly.

     Moyer, C.J., A.W. Sweeney, Wright and Resnick, JJ.,
concur.

     Hoffman and Pfeifer, JJ., concur in part and dissent
in part.

     William B. Hoffman, J., of the Fifth Appellate
District, sitting for F.E. Sweeney, J.



FOOTNOTES:

1    Section 628.02 of Cleveland Ordinance No. 415-89
defined what was and what was not an "assault weapon."

This section provided, in part, that:

     "(a)  'Assault weapon' means:

     "(1)  any semiautomatic action, center fire rifle or
carbine that accepts a detachable magazine with a capacity
of 20 rounds or more;

     "(2)  any semiautomatic shotgun with a magazine
capacity of more than six rounds;

     "(3)  any semiautomatic handgun that is:

     "A.  a modification of a rifle described in division
(a)(1), or a modification of an automatic firearm; or

     "B.  originally designed to accept a detachable
magazine with a capacity of more than 20 rounds.

     "(4)  any firearm which may be restored to an operable
assault weapon as defined in divisions (a)(1), (a)(2) or
(a)(3).

     "(5)  any part, or combination of parts, designed or
intended to convert a firearm into an assault weapon as
defined in divisions (a)(1), (a)(2) or (a)(3), or any
combination of parts from which an assault weapon as
defined in divisions (a)(1), (a)(2) or (a)(3), may be
readily assembled if those parts are in the possession or
under the control of the same person.

     "(b)  Assault weapon does not include any of the
following:

     "(1)  any firearm that uses .22 caliber rimfire
ammunition with a detachable magazine with a capacity of 30
rounds or less.

     "(2)  any assault weapon which has been modified to
either render it permanently inoperable or to permanently
make it a device no longer defined as an assault weapon."

2    In an apparent response to the court of appeals'
decision regarding the conflict with Section 926A, Title
18, U.S. Code, it appears that the city of Cleveland
amended or replaced Ordinance No. 415-89.  The parties
agree that the new version is virtually identical to the
former ordinance except that it now purports to comply with
Section 926A, Title 18.  We believe that any conflict that
may have existed with respect to Section 926A, Title 18 has
apparently been corrected.  Therefore, whether the former
version conflicts with Section 926A, Title 18 will not be
discussed by this court.

3    Count one now appears to be moot.  Appellee did not
cross-appeal the finding of the appellate court reversing
and remanding the trial court's decision on count one.
Appellants make no argument regarding count one and do not
dispute appellee's contention that the issue has been
abandoned.  Further, since Ordinance No. 415-89 (the matter
at issue) has been repealed and replaced, the issue raised
in count one seems to have no further efficacy.  Thus, we
find that portion of the court of appeals' opinion dealing
with count one to have no effect.

4    Appellants also contend that the ordinance violates
Section 1, Article I of the Ohio Constitution.  This
section provides that:

     "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."

5    The Second Amendment to the United States Constitution
provides that:

     "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."

6    There has been an abundance of articles written by
legal scholars, historians and students on the history of
the Second Amendment.  A common understanding among these
writers on the subject is that the Second Amendment was
drafted at a time when standing armies were not strongly
favored and generally regarded as a threat to a free
government.

7    There seem to be two separate views, on the
"collective" versus "individual" concept, among state
courts which have interpreted their constitutional
provisions regarding the right to bear arms.  Some courts
have found that the safeguard is a collective right.  These
courts have taken a stance advocating more restrictive gun
control legislation.  Other courts have emphasized that the
right to bear arms extends to individuals.  These courts
disdain overly restrictive gun control legislation.  See,
generally, Annotation, Validity of State Gun Control
Legislation Under State Constitutional Provisions Securing
the Right to Bear Arms (1991), 86 A.L.R. 4th 931, 943-946.

8    It appears that the Ohio Supreme Court has been
reluctant to use the Ohio Constitution to extend greater
protection to the rights and civil liberties of Ohio
citizens.  When presented with opportunities to do so, this
court has not, on most occasions, used the Ohio
Constitution as an independent source of constitutional
rights.  See Porter & Tarr, The New Judicial Federalism and
the Ohio Supreme Court:  Anatomy of a Failure (1984), 45
Ohio St.L.J. 143.

9    Section 20, Article VIII of the 1802 Ohio Constitution
provided:

     "That the people have a right to bear arms for the
defence of themselves and the state; and as standing armies
in time of peace, are dangerous to liberty, they shall not
be kept up; and that the military shall be kept under
strict subordination to the civil power."

10   See, also, Prosser & Keeton, The Law of Torts (5 Ed.
1984) 129-131, Sections 20 and 21.

11   Black's Law Dictionary (6 Ed. 1990) 674, defines
"fundamental right" as "[t]hose rights which have their
source, and are explicitly or implicitly guaranteed, in the
federal Constitution * * * and state constitutions * * *[.]"

12   We recognize that the term "reasonable" will be
attacked as subjective, malleable and lacking in
definitiveness.  The word is, however, time-honored and
well accepted in the law and is often used.  Examples
include the "reasonable man (person) standard," "reasonable
speed," "reasonable control" and "reasonable force."  Thus,
we believe that reasonable gun control legislation is that
which is fair, proper, moderate, suitable under the
circumstances and not excessive.  See, generally, Black's
Law Dictionary (6 Ed. 1990) 1265.

13   In the case at bar, the record does not indicate that
the trial court provided appellants with actual notice of
its intent to convert appellee's motion to dismiss counts
two through twelve of appellants' complaint to one for
summary judgment.  Further, it appears that the trial court
granted appellee summary judgment with respect to counts
two through twelve without any supporting or opposing
evidence provided by appellee.  Nevertheless, we believe
that under the circumstances of this case, the failure to
provide notice and the granting of summary judgment were
not prejudicial where the motions to dismiss should have
been granted in the first instance.

     William B. Hoffman, J., concurring in part and
dissenting in part.  Though I concur with the first,
second and fourth syllabus paragraphs of the majority
opinion, I must respectfully dissent from the majority's
conclusion that former Cleveland Ordinance No. 415-89 is
constitutional.  I believe such decision is premature and
analyzed under the wrong standard by the majority.

     The majority correctly recognizes that Sections 1 and
4, Article I of the Ohio Constitution confer upon the
citizens of Ohio the fundamental right to bear arms and
that such right is an individual one.  Conceded to the
majority is the fact that, although fundamental, such right
is not absolute.

     It is undisputed that legislative concern for public
health and safety is a proper police power objective.  This
court has recognized as constitutional gun control
legislation which has regulated the manner in which a
weapon may be borne.  State v. Nieto (1920), 101 Ohio St.
409, 130 N.E. 663; Mosher v. Dayton (1976), 48 Ohio St.2d
243, 2 O.O.3d 412, 358 N.E.2d 540.  However, the Cleveland
ordinance goes beyond mere regulation.  It is a total
prohibition of possession of certain types of arms.

     The majority adopts the position that as long as the
legislation is enacted to promote public health and safety
it need only be reasonable to pass constitutional muster,
even though it interferes with a personal or collective
liberty.  Such standard is appropriate when analyzing
legislative restrictions on nonfundamental rights.
However, I believe a stricter standard must be utilized
when the legislation places restrictions upon fundamental
rights, particularly where the legislation prescribes an
outright prohibition of possession as opposed to mere
regulation of possession.  A "strict scrutiny" test, i.e.,
whether the restriction is necessary to promote a
compelling governmental interest, as opposed to the less
demanding "reasonable" or "rational relationship" test,
ought to be applied.  Dunn v. Blumstein (1972), 405 U.S.
330, 92 S.Ct. 995, 31 L.Ed.2d 274.  Under the strict
scrutiny analysis, a law which impinges upon a fundamental
right is presumptively unconstitutional unless a compelling
governmental interest justifies it.  Skinner v. Oklahoma ex
rel. Williamson (1942), 316 U.S. 535, 62 S.Ct. 1110, 86
L.Ed. 1655; Shapiro v. Thompson (1969), 394 U.S. 618, 89
S.Ct. 1322, 22 L.Ed.2d 600; San Antonio Indep. School Dist.
v. Rodriguez (1973), 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d

16.  Furthermore, any such infringement must be drawn with
"precision."  N.A.A.C.P. v. Button (1963), 371 U.S. 415,
438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405, 421.  "And if there
are other, reasonable ways to achieve those goals with a
lesser burden on a constitutionally protected activity, a
State may not choose the way of greater interference.  If
it acts at all, it must choose 'less drastic means.'"
Dunn, supra, at 343, 92 S.Ct. at 1003, 31 L.Ed.2d at 285,
citing Shelton v. Tucker (1960), 364 U.S. 479, 488, 81
S.Ct. 247, 252, 5 L.Ed.2d 231, 237.  Exercise of the police
power may not be achieved by a means which sweeps
unnecessarily broadly.  Lakewood v. Pillow (1972), 180
Colo. 20, 501 P.2d 744.  The majority candidly recognizes
that the Cleveland ordinance is broad in its scope.

     Whether the city of Cleveland's objective in enacting
the subject ordinance is necessary to promote a compelling
governmental interest and whether the legislation enacted
to accomplish that objective sweeps unnecessarily broadly
are questions which are not yet ripe for review by this
court in light of the procedural posture of this case.  As
noted in the majority opinion, the trial court converted
appellee's motion to dismiss appellants' counts two through
twelve of the complaint into a motion for summary
judgment.  Civ.R. 12(B) provides in pertinent part:

     "When a motion to dismiss for failure to state a claim
upon which relief can be granted presents matters outside
the pleadings and such matters are not excluded by the
court, the motion shall be treated as a motion for summary
judgment and disposed of as provided in Rule 56.  * * *
All parties shall be given reasonable opportunity to
present all materials made pertinent to such a motion by
Rule 56."

     In order to prevail on a Civ.R. 12(B)(6) motion, it
must appear beyond doubt from the complaint that the
plaintiff could prove no set of facts entitling him to
recover.  Petrey v. Simon (1983), 4 Ohio St.3d 154, 4 OBR
396, 447 N.E.2d 1285.  I believe appellants' second amended
complaint adequately challenged the constitutionality of
the ordinance and was sufficient to withstand appellee's
motion to dismiss.  Though the trial court could properly
treat appellee's motion for dismissal as a summary judgment
motion, when doing so it denied both parties the
opportunity to present materials pertinent thereto.14  The
briefs of the parties and respective amici filed herein are
replete with statistics and reports collected throughout
the country regarding the impact of guns and their
relationship to criminal behavior.  The majority makes
reference to these materials but concludes that even if
accurate, they would not diminish the public safety threat
of "assault weapons" or demonstrate that the ordinance is
unreasonable or arbitrary.  Though the majority's position
may ultimately be proven correct, the parties have been
precluded from establishing their record in the courts
below.

     Few would question the wisdom of banning "assault
weapons."  However, use of the term "assault weapons"
generates emotional responses and inherent bias.  Whether
the weapons banned by the Cleveland ordinance are primarily
antipersonnel or whether they are equally suitable for
defensive or sporting purposes has yet to be demonstrated.
All weapons are antipersonnel and assaultive by nature.
The mere declaration by Cleveland Council that it finds the
primary purpose of assault weapons to be antipersonnel and
any civilian application or use of those weapons is merely
incidental to such primary antipersonnel purpose, coupled
with its declaration that the proliferation and use of said
assault weapons pose a serious threat to the health,
safety, welfare and security of the citizens of Cleveland
is, standing alone, insufficient to satisfy the
government's burden when such legislation infringes upon a
fundamental right.  When challenged, the government must be
allowed to demonstrate this claim and the challenger must
be afforded an opportunity to demonstrate otherwise.  Both
sides have been precluded from doing so in this case.

     I would reverse the decision of the appellate court,
and remand the matter to the trial court for further
proceedings in accordance with this opinion and the law.

     Pfeifer, J., concurs in the foregoing opinion.



Footnote:

14.  The majority and the appellate court overruled this
procedural argument as not prejudicial because the motion
to dismiss ought to have been granted.


