Cite as University Heights v. O'Leary, 68 Ohio St. 2d 130 (1981). CITY OF UNIVERSITY HEIGHTS, APPELLANT, v. O'LEARY, APPELLEE. [Cite as University Heights v. O'Leary (1981), 68 Ohio St. 2d 130.] Municipal Corporations-Firearm registration law-Constitutionality. It is a reasonable exercise of the police power for a municipality to enact an ordinance which requires a non-resident, before bringing a firearm into the municipality, to possess a firearm owner's identification card, issued either by the non-resident's home municipality or the enacting municipality. (No. 80-1716--Decided December 16, 1981.) Appeal from the Court of Appeals for Cuyahoga County. Defendant-appellee, James W. O'Leary, is a private investigator. On the evening of June 14, 1979, appellee's assignment was to keep a subject's car under surveillance. At approximately 10:00 p.m. that evening appellee's car was parked in a May Company parking lot in the city of University Heights. Also in the parking lot was a van, upon which several police officers converged to arrest the occupants for the illegal sale of fireworks. After the arrest, officers of the University Heights Police Department came over to appellee's car in which appellee's co-worker, Gerald Wright, was sitting to investigate his presence in the parking lot after store hours. During the course of the police questioning of Wright, an empty gun holster was observed on the floor of the automobile. Wright was searched and a search was begun of the car. Some cartridges were found in the car's glove compartment. Appellee returned while the police were searching the interior of the car. Pursuant to police request, appellee opened the trunk of the car which contained several encased, unloaded weapons. As a result of the discovery of these weapons, appellee was charged with violating Sections 626.04(a) and 626.09(a) of the Codified Ordinances of the city of University Heights, which proscribe the possession and carrying of a firearm in a vehicle in the city of University Heights unless the person has a "Restricted Weapons Owner's Identification Card." Prior to trial appellee filed the following: (1) a motion to suppress the evidence seized during the search of the car and (2) a motion to dismiss the charges on the ground that Sections 626.04(a) and 626.09(a) were facially unconstitutional. An initial hearing on the charges was held on August 17, 1979, in the Shaker Heights Municipal Court. The case was continued because neither the appellee, the prosecutor, nor the court could obtain the correct copies of the applicable ordinance. A subsequent hearing was held on August 21, 1979. The court overruled appellee's first motion, finding the search and seizure constitutional. [footnote 1] The court, however, granted appellee's second motion, finding Sections 626.04(a) and 626.09(a) unconstitutional because they were overbroad, vague and unenforceable. The Court of Appeals affirmed, finding Sections 626.04(a) and 626.09(a) overbroad, vague, unenforceable and violative of due process because they penalized innocent conduct. The cause is now before this court pursuant to the allowance of a motion to certify the record. Mr. Alan M. Wolk, law director, for appellant. Mr. Richard D. Eisenberg, for appellee. KRUPANSKY, J. The sole issue presented in the instant cause is whether Sections 626.04(a) and 626.09(a) of the Codified Ordinances of University Heights are constitutional. For the reasons expressed below, we hold these sections constitutional and we reverse the Court of Appeals' holding to the contrary. Chapter 626 of the Codified Ordinances of the city of University Heights contains a comprehensive firearm registration law. [footnote 2] The two sections challenged in this cause provide: "626.04 IDENTIFICATION CARD REQUIRED "(a) No person shall purchase, own, possess, receive, have on or about his person or use any handgun, pellet gun or stun gun, unless such person has a Restricted Weapons Owner's Identification Card issued to him and applicable to such weapon by reason of a proof of registration form issued pursuant to Section 626.07 of these Codified Ordinances then in effect pursuant to this Chapter, or unless such person is exempt from the requirements of having such identification card pursuant to Section 626.05." "626.09 PROHIBITION AGAINST CARRYING A FIREARM IN A VEHICLE "(a) No person, unless exempted by any of the provisions of this chapter, shall transport in any vehicle in or upon the streets and public places of the City any restricted weapon without having in his possession a Restricted Weapons Owner's Identification Card required by the provisions of this chapter, or, if a nonresident, a Restricted Weapons Owner's Identification Card, permit or authorization issued by the proper authorities of his residence, and provided that such restricted weapon shall at all times be unloaded and encased." In finding these sections unconstitutional, the Court of Appeals relied primarily on Lambert v. California (1957), 355 U. S. 225, rehearing denied (1958), 355 U. S. 937, and United States v. Mancuso (C.A. 2, 1970), 420 F. 2d 556. In Lambert, the Supreme Court held unconstitutional a Los Angeles municipal ordinance which made it an offense for a person who had been convicted of a crime punishable in California as a felony to be present in the city for more than five days or on more than five occasions within a 30-day period without registering with the Chief of Police. In a 5-4 majority opinion written by Justice Douglas, the court reasoned: "Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking. At most the ordinance is but a law enforcement technique designed for the convenience of law enforcement agencies through which a list of the names and addresses of felons then residing in a given community is compiled. * * * Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community." Id. at 229-30. In Mancuso, a federal court of appeals, relying on Lambert, reversed the conviction of a defendant for failure to register with customs officials upon leaving and re-entering the country, which registration was required by Section 1407, Title 18, U. S. Code, because he had been convicted of a narcotics offense. See contra, United States v. Logan (C.A. 9, 1970), 434 F. 2d 131. The Court of Appeals' reliance on these cases is misplaced. The rule of law enunciated in Lambert has not been followed by courts dealing with the constitutionality of laws penalizing, under certain circumstances, the knowing possession of firearms. In United States v. Freed (1971), 401 U. S. 601, a decision also authored by Justice Douglas, the court distinguished Lambert and held that one may be convicted of possession of an unregistered firearm, in this case a hand grenade, absent the knowledge that such possession was unlawful. The court reasoned that "one would hardly be surprised to learn that possession of hand grenades is not an innocent act." Id. at 609. In Mclntosh v. Washington (C.A. D.C. 1978), 395 A. 2d 744, the federal appellate court upheld the constitutionality of a District of Columbia law which imposes criminal penalties on those who fail to register firearms regardless of their knowledge of the duty to register. In so holding, the court stated: "Appellant's reliance on Lambert v, California, 355 u. s. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957), and United States v. Mancuso, 420 F. 2d 556 (2d Cir. 1970), is misplaced. These two cases carve out very narrow exceptions to the general rule that ignorance of the law is no defense. Except under the unique circumstances of Lambert and Mancuso, decisions in which persons were required to register because of their status, knowledge of the law is not a requirement of due process. The Supreme Court has indicated that dangerous or deleterious devices or products are the proper subject of regulatory measures adopted in the exercise of a state's 'police power'--e.g., United States v. International Minerals & Chemicals Corp., 402 U. S. 558, 91 S. Ct. 1697, 29 L. Ed. 2d 178 (1971) (corrosive liquids); United States v. Freed, 401 U.S. 601, 91 S. Ct. 1112, 28 L. Ed. 2d 356 (1971) (grenades); United States v. Balint, supra [258 U. S. 250] (narcotics); and United States v. Dotterweich, 320 U. S. 277, 64 S. Ct. 134, 88 L. Ed. 48 (1943) (adulterated and misbranded drugs). These cases are premised on the theory that where dangerous or deleterious devices or products are involved, the probability of regulation is so great that anyone who is aware that he is either in possession of or dealing with such items must be presumed to be aware of the regulation. Shevlin-Carpenter Co. v. Minnesota 218 U. S. 57, 64-65, 30 S. Ct. 663, 54 L. Ed. 930 (1910). That is to say, "[T]here are fields in which the dangers are so high and the regulations so prevalent that, on balance, the legislative branch may as a matter of sound public policy and without impairing any constitutional guarantees, declare the act itself unlawful without any further requirement of mens rea or its equivalent. [State v. Hatch, 64 N.J. 179, 184, 313 A. 2d 797, 799 (1973).] "See United States v. Freed, supra; Shevlin-Carpenter Co. v. Minnesota, supra. Gun control is clearly such a field." Id. at 756. The Lambert decision rested on three factors: (1)The conduct involved was passive, (2) the situation addressed by the ordinance would not move one to inquire as to the applicable law, and (3) the law is designed solely for its convenience in compiling a list which might be of some assistance to law enforcement agencies. United States v. Weller (C.A. 3, 1972), 458 F. 2d 474, 478. None of these factors is present in the instant cause. First, mere passive conduct is not involved here. To violate the law, one must acquire possession of a firearm. United States v. Crow (C.A. 9, 1971), 439 F. 2d 1193, 1196, vacated on other grounds, 404 U. S. 1009 (1972); State v. Drummonds (1975), 43 Ohio App. 2d 187, 188-189. Second, the regulated conduct here, possession of a firearm, is one which by its nature suggests the possibility of governmental regulation. United States v. Freed, supra; United States v. Weller, supra. Third, the gun registration ordinance involved here is not designed solely for the convenience of law enforcement agencies. The purpose of the ordinance is to protect the citizens of University Heights from violence arising from handguns and other firearms by keeping firearms out of the hands of unfit persons, that is, those ineligible to receive a Restricted Weapons Owner's Identification Card. [footnote 3] See Mosher v. Dayton (1976), 48 Ohio St. 2d 243; State v. Drummonds, supra; Photos v. Toledo (1969), 19 Ohio Misc. 147. Based on the above discussion, we hold Sections 626.04 (a) and 626.09(a) of the Codified Ordinances of University Heights constitutional. We hold that it is not violative of due process for the city of University Heights to require a nonresident, who does not possess a firearm owner's identification card from his own municipality, to acquire a Restricted Weapons Owner's Identification Card pursuant to Chapter 626 of the Codified Ordinances of University Heights, before bringing a firearm into the city of University Heights, unless he fits into the exceptions listed in Section 626.05. In Mosher v. Dayton, supra, this court held in the syllabus as follows: "A city ordinance which requires those having and those acquiring handguns to possess an identification card issued by the city is a reasonable exercise of the police power." See, also, Photos v. Toledo, supra. We hold it is a reasonable exercise of the police power to require non-residents, as well as residents, to possess an identification card. Section 3, Article XVIII of the Ohio Constitution provides: "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." A duly enacted municipal ordinance is presumed constitutional; the burden of establishing the unconstitutionality of an ordinance is upon the one challenging its validity. East Cleveland v. Palmer (1974), 40 Ohio App. 2d 10. Appellee has failed to sustain this burden. Sections 626.04(a) and 626.09(a) are not violative of due process. They are not vague. It is clear what is required: a firearm owner's identification card issued by either a non-resident's home municipality, or by the city of University Heights. The method for acquiring a card is clearly set forth in Chapter 626. For the foregoing reasons, the judgment of the Court of Appeals is reversed. Judgment reversed. W. BROWN, SWEENEY and LOCHER, JJ., concur. CELEBREZZE, C. J., HOLMES and C. BROWN, JJ., dissent. CELEBREZZE, C. J., 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, necessary 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. [footnote 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. Dissenting Opinion, per HOLMES, J. HOLMES, J., dissenting. I am aware that this court, in Mosher v. Dayton (1976), 48 Ohio St. 2d 243, concluded that a city ordinance which requires handgun owners to possess an identification card issued by the city is a reasonable exercise of the police power. However, I must dissent from the majority herein because an analysis of the particular ordinance involved within this appeal appears to be an unreasonable exercise of the police power to accomplish the recognized legitimate goals which it seeks. In the review and analysis of the claims of unconstitutionality or unreasonableness of any ordinance, the specific provisions of that particular ordinance as a whole must be weighed and balanced as to the lawfulness and reasonableness of arriving at the governmental goals. Here, upon review, I find significant differences in the ordinances of Dayton and University Heights. I shall only point out a few of such differences. The Dayton ordinance provides in Section 138.11, "Handgun Owner's Identification Card Required," that: "(A) No person shall possess any handgun, unless such person has a handgun owner's identification card * * * ." Under Section 138.10, "Definitions" of handguns under the ordinance, "possess" is defined, "To knowingly carry or have a handgun on the person or ready at hand." Under such definition, it is reasonably arguable that a handgun being transported in the trunk of the automobile, as here, would not be found to be "on the person or ready at hand," and would not be held to be in violation of the Dayton ordinance. The same non-resident would, as here, be found to be in violation of the University Heights ordinance. There is also a marked difference in the penalties to be found within the Dayton ordinance versus the University Heights ordinance. In the former, a violation of the ordinance is a misdemeanor of the first degree and imposes only a sentence of up to six months. In the University Heights ordinance the penalty set forth is "not more than one thousand dollars ($1,000) or imprisoned not more than one (1) year, or both. A separate offense shall be deemed committed each day during or on which a violation occurs or continues." Section 626.04(j) and Section 626.09(b). A non-resident, unaware of the city ordinance, in the community on business, or merely passing through the community, could be sentenced to severe penalties under the University Heights ordinance. Another objectionable feature of the University Heights ordinance not to be found in the Dayton ordinance is the mandatory confiscation and destruction by the police department of any firearm "which any person shall own, possess or use in violation of any of the provisions of this Chapter * * * upon conviction of such person of any offense under this Chapter * * *." Section 626.03(b). Conceivably, and hypothetically, this provision of the ordinance would mandate the confiscation and destruction of an extremely valuable gun collection of a legitimate gun collector en route to a gun collectors' show in Columbus, or elsewhere, who stopped in University Heights on business, for rest or other reason--merely because of a failure to register under a gun registration law which was unknown to him. Gun registration acts and ordinances, where properly drawn, can well serve a legitimate public purpose and not run afoul of claims of unconstitutionality or unreasonableness. But here, in my view, the municipal ordinance of University Heights attempts to accomplish this exercise of police power in an unreasonable manner. I would affirm the Court of Appeals. C. BROWN, J., concurs in the foregoing dissenting opinion. APPENDIX CHAPTER 626 "626.01 DEFINITIONS. As used in this chapter: " * * * "(b) 'Firearm' means any weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. 'Firearm' includes an unloaded firearm and any firearm which is inoperable but which can readily be rendered operable. "* * * "(f) 'Nonresident' means any person who does not have a place of residence within the corporate territorial limits of the City of University Heights. FOOTNOTES 1. Appellee failed to challenge this ruling by cross-appeal in the Court of Appeals, so the issue of the constitutionality of the search and seizure is not now before this court. 2. Relevant parts of such Chapter are contained in the Appendix to this opinion. 3. Sections 626.02(a), (b), (c) and 626.04(d) provide who may be issued a card. 4. Cleve. St. L. Rev. 1, 18.