dissenting.
I am unable to concur with the majority’s conclusion that the University Heights ordinance at issue is a valid exercise of its police power.
The majority states that this fact situation does not comport with the standards enunciated in Lambert v. California (1957), 355 U. S. 225. I fail to discern any significant difference. That is, the appellee’s actions substantially meet the requirements of passive conduct. Appellee did not personally carry or use the firearms, he was merely within the city limits and was in compliance with the state regulations on transporting firearms. Secondly, as a non-resident, appellee had no notice of the ordinance and had no reason to inquire about registration requirements. This satisfies the second requirement in Lambert. It is also arguable that the ordinance is designed to obtain a list of gun owners for law enforcement purposes. Consequently, I can not agree with the majority view that none of the three factors is present in the instant case. The Lambert case also calls for an opportunity to comply and avoid the penalty upon becoming aware of the duty to register. According to the United States Supreme Court in Lambert, actual knowledge of the duty to register or proof of probability of such knowledge and subsequent failure to comply is required. The University Heights ordinance is void under Lambert.
This court stated in Froelich v. Cleveland, (1919), 99 Ohio St. 376, in paragraph three of the syllabus, that:
“The state and municipalities may make all reasonable, *137necessary and appropriate provisions to promote the health, morals, peace and welfare of the community. But neither the state nor a municipality may make any regulations which are unreasonable. The means adopted must be suitable to the end in view, must be impartial in operation and not unduly oppressive upon individuals, must have a real and substantial relation to their purpose, and must not interfere with private rights beyond the necessities of the situation.”
The means adopted in this ordinance are not substantially related to its purpose. The majority states that the goal of the ordinance is to protect citizens from violence arising from handguns by keeping them out of the hands of unfit persons. However, the registration required by the ordinance will unlikely have any effect upon unfit persons. Those persons deemed unfit, who want to possess guns, will find ways to obtain guns. Those who possess guns for criminal purposes will probably ignore the registration to avoid any possible tracing of violent crimes to persons registered.4 However, those who possess guns legally will be more likely to register them. Thus, the means adopted will not achieve the desired results.
Froelich also requires that the ordinance be necessary to promote the health, morals, peace and welfare of the community. The Court of Appeals stated that the record showed that appellee transported firearms in compliance with state law. There are several state statutes which regulate firearms. For example, R. C. 2923.13 prohibits persons deemed unfit from acquiring, having, carrying or using any firearm or dangerous ordnance. A violation of this section imposes a penalty of a fourth degree felony.
Thus, in view of the other state statutes regulating firearms, the ordinance is not necessary.
I reaffirm the reasons in my dissent in Mosher v. Dayton (1976), 48 Ohio St. 2d 243, 248, when we considered a similar ordinance. Because the ordinance restricts individual rights, I would require that all limitations not only be reasonable, but also necessary.
C. Brown, J., concurs in the foregoing dissenting opinion.28 Cleve. St. L. Rev. 1, 18.