{¶ 14} I cannot agree that a definition is a general law. The majority holds that R.C. 2923.11(E) is a general law because it addresses the conduct of the citizenry. But when did defining a term become "the conduct of the citizenry"? Definitions have nothing to do with conduct.
{¶ 15} The majority's opinion is fine until it gets to the end. It defines the issue, states the proper test, then falls into a ditch at the end, citing a case that is *Page 545 easily distinguishable — a statewide scheme to regulate predatory lending of course preempts a conflicting local ordinance on the same subject.19 This case sets terrible precedent and will leave lawyers across the state, especially those who represent municipalities, scratching their heads.
{¶ 16} The home-rule provision of the Ohio Constitution20 specifically grants municipalities like Cincinnati the "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." Because I do not believe that R.C. 2923.11 is a general law, I believe that it was within Cincinnati's authority to enact CMC 708-37.
{¶ 17} R.C. 2923.11(E) states the following:
{¶ 18} "`Automatic firearm' means any firearm designed or specially adapted to fire a succession of cartridges with a single function of the trigger. `Automatic firearm' also means any semi-automatic firearm designed or specially adapted to fire more than thirty-one cartridges without reloading, other than a firearm chambering only .22 caliber short, long, or long-rifle cartridges."
{¶ 19} Because this definition, when applied to the dangerous-ordnance statute, makes illegal the possession of a gun with a magazine that holds more than 31 bullets, does it also mean to specifically allow ones with fewer than 31 bullets? That would be the only way to hold the Cincinnati ordinance constitutional — that the state law evidences a specific regulatory scheme covering the universe of firearms, explosives, etc. But the majority does not say that. And I do not think that theory flies either — some firearms, explosives, and other ordnance might be more dangerous in a congested city than in rural parts of Ohio. So the legislature has shown no attempt to preempt the field. It may surely do so if it wishes, but it has not.
{¶ 20} And even if a definition were a general law, the provisions do not conflict. As the majority correctly asserts, the test is whether the municipal ordinance permits or licenses that which the state statute forbids and prohibits, and vice versa.21 The term "license" means just that — if the state law grants a license — usually a piece of paper — to engage in certain conduct, then a local law must not interfere.22 Obviously, R.C. 2923.11 does not specifically license anything. So does it "permit" something that the ordinance prohibits? *Page 546
{¶ 21} Again, R.C. 2923.11 does not forbid or permit anything. But for the sake of argument, let us assume that it says that no one can carry a semiautomatic firearm with more than 31 cartridges. The Cincinnati ordinance says that no one can carry a semiautomatic firearm with more than 10 cartridges.
{¶ 22} If a person had a semiautomatic firearm with 32 cartridges, it would be illegal under the both the ordinance and the state law. So there is no conflict there. And if that same person had a semiautomatic firearm with 15 cartridges in Cincinnati, he would be violating the ordinance but not the statute. Note that the statute does not say, "You can carry any semiautomatic weapon with fewer than 31 cartridges."
{¶ 23} Thus, the ordinance does not permit anything that the statute forbids. And vice versa. And just because the legislature is silent on a subject does not mean that municipalities cannot legislate. Were that so, we could have no municipal ordinances.
19 Dayton v. State, 157 Ohio App.3d 736, 2004-Ohio-3141,813 N.E.2d 707.
20 Section 3, Article XVIII, Ohio Constitution.
21 See Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005,766 N.E.2d 963.
22 See, e.g., Ohio Assn. of Private Detective Agencies, Inc. v. N.Olmsted, 65 Ohio St.3d 242, 1992-Ohio-65, 602 N.E.2d 1147.