
    The State of Ohio v. Schutzler.
    (No. 28972
    Decided July 22, 1969.)
    Common Pleas Court of Montgomery County.
    
      Mr. Lee C. Falke, prosecuting attorney, and Mr. James A. Brogan, for plaintiff.
    
      Mr. W. Gale Everman, for defendant.
   I

Brenton, J.

The provisions of Section 2923.04, Revised Code (permit for possessing firearms; requirements),

likely make one susceptible to numerous prosecutions under 26 U. S. Code, Sections 5851 and 5861. (See division IY of the opinion.)

It is important to recognize that the Supreme Court does not say one would increase the likelihood of prosecution under Section 5841, the requirement to register. Moreover the court outlines throughout its opinion the several violations that can be incurred while possessing the firearm. Again, if “at any time” the weapon has not been within the federal statutes, the possessor is punishable.

Finally the significant distinguishable feature is that Section 5851 specifically defines possession of an unregistered firearm as an unlawful act, with no provision that the failure to register must have preceded the acquisition of possession. The court also commented that it was useful to note that the legislative committees did not suggest the inclusion of such provision. Haynes v. U. S., 390 U. S. 85, 94.

V

Schutzler’s confrontation with Ohio’s firearm statute is not the same or similar to that experienced in the federal cases.

In Ohio the procurement of a permit prior to possession satisfies the obligations imposed by the statute. In so doing there is no increased likelihood of prosecution by the state. The Ohio statute does not require that anyone who is illegally possessing a machine gun will be subject to a separate penalty for failure to turn himself in. The law requires only that he register the firearm before he obtains possession.

The antecedent requirement of the statute is the salient distinction between this case and the federal cases upon which Schutzler has relied for aid and comfort. The Ohio statute does not require an admission of guilt.

Directing the question of both the federal and state statute, different conclusions are reached. What hazards of incrimination stem from the registration requirements?

Under the federal, it could be determined that only one who has violated the Act’s other requirements is obliged to register.

Under the state, the only unlawful act one can commit for merely owning, possessing, transporting, having custody of, or using a machine gun is the failure to procure a permit so to do.

Consequently, if the registration requirements exact real and appreciable hazards of incrimination they are unconstitutional. If they do not they are constitutional.

VI

One who assails a statute on the ground that it involves a classification denying the equal protection of the laws must clearly establish the invalidity of such statute.

Schutzler asserts that the bond of $5000.00 per weapon discriminates against the poor.

The use of machine guns is one of public interest, affecting all classes of people, and is therefore properly the subject of legislative regulation and control.

Equal protection of the law means the protection of equal laws. The constitutional proscription does not exclude class legislation, provided there is a reasonable basis for the classification.

Poor means destitute; helpless and in extreme want; Rhine v. Sheboygan, 82 Wis. 352, 52 N. W. 444; dependent upon charity or public support; so completely destitute of property as to require assistance from the public; State v. Osawkee Twp., 14 Kan. 421.

Schutzler, upon his own evidence, cannot be classified as poor. Furthermore, the bond requirement of the statute is not directed against any one classification of persons, business, professions or hobbies. The unlawful or negligent use of machine guns can be injurious to persons. Thus the bond for the permit is in effect compulsory insurance for the exercise of the right to use such gun.

Article I, Section 4 of the Ohio Constitution accords the right to bear arms. But this right does not prevent the Legislature from making such police regulations as may be necessary for the welfare of the public at large concerning the manner in which arms shall he borne and the nse thereof. State v. Nieto, 101 Ohio St. 409; Porello v. State, 121 Ohio St. 280. The right cannot be deprived bnt it enjoins a duty in execution of which that right is to be exercised.

The prohibition against the denial of equal protection of the laws does not require that the law shall have an equality of operation, in the sense of an indiscriminate op-peration on persons merely as such, but on persons according to their relation. It does not prevent the state from distinguishing, selecting and classifying objects of legislation within a wide range of discretion, provided only that the discretion must be based upon some reasonable ground. So long as the statute is applicable to all persons under like circumstances and does not subject individuals to an arbitrary exercise of power and operates alike upon all persons similarly situated it suffices the constitutional prohibition against the denial of equal protection of the laws. Senior v. Ratterman, 44 Ohio St. 661; City of Xenia v. Schmidt, 101 Ohio St. 437.

The effect of the prohibition is the prevention from deprivation of equal and impartial justice under the law. The claim that the statute favors the rich and discriminates against the poor is untenable. In law equality means likeness in possessing the same rights and being liable to the same duties. The word equal implies, not identity, but duality; the use of one thing as the measure of another.

vn

For the reasons herein delineated the motion to quash the indictment is not well taken on the constitutional grounds asserted by the defendant and it is therefore overruled.

This cause is continued for further proceedings in accordance with law.

Motion overruled.  