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.
*53The 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, 405 U.S. 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 *54legislation 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.
New 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 *55Cleveland 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.. The majority and the appellate court overruled this procedural argument as not prejudicial because the motion to dismiss ought to have been granted.