Posted on 05/23/2003 6:34:01 PM PDT by FreedomCalls
Justice Paul Pfeifer got a chuckle out of a packed gallery during April's oral arguments in the Ohio Supreme Court case, Klein and Feely v. Leis. The case will decide whether Ohioans have a constitutional right to carry concealed weapons.
"It's just socially unacceptable today," Pfeifer told the gun-carrying-plaintiff's hapless attorney. "If you walk down the street like some cowboy with a couple of pearl-handled six-shooters, the cops would be getting calls saying, 'There's some nut walking around with a gun.'"
Everyone laughed.
I'm reminded of a good friend, a comedian and a lawyer (he's been paid for both), who spent most of law school directing the annual law school show. Nothing made him angrier than an amateur performer who would get a laugh by walking onstage and then go off script to utter a simple curse word, or a bit of scatology.
Sure, it gets the laugh - at least the first time. But it takes the audience out of the show that everyone has worked so hard to craft into a coherent whole and risks ruining much better themes.
Pfeifer wasn't the worst offender, though. The plaintiff's attorney, whose job it was to persuade the public and the court that concealed carry is a rational, constitutional policy, also got into the laugh act.
No sooner had he started a hypothetical meant to demonstrate the reasonableness of his position, saying, "If I were carrying right now," than he jumped out of character, waved his open palms at the court, and said, "I'm not, I'm not."
It got the laugh, too, right on cue, but it utterly undermined the point he was trying to make: Carrying a concealed weapon is a temperate, honorable thing to do, something reasonable people ought not fear.
It's too bad the attorney didn't have the wherewithal to respond instead to Pfeifer's joke with the image of 20-year-old Shauna Sandercock, owner of a Hilltop video game store. Almost exactly a year before the arguments, she was raped and then beaten to death by a 21-year-old former football player.
Or perhaps the attorney could have responded to Pfeifer's joke with the story of two other women store owners, both of whom were abducted, raped and robbed in March from their stores on High Street in Clintonville and Worthington.
Perhaps Pfeifer was already thinking of these women, because his funny cowboy hypothetical can be interpreted in a conservative, strong gun-rights way.
In the past, whether 1923, or 1853 or 1833 or before, few people would bat an eye at the site of someone carrying a gun. In such a culture, where one can carry openly without ridicule, it makes sense to be suspicious of someone who hides a gun.
After all, anyone who can carry openly without shame or risk might well have nefarious purpose in mind if they go to the trouble of carrying concealed.
But Justice Pfeifer is right. Many people, perhaps even most, no longer think this way. As Pfeifer put it to to the plaintiff's attorney, anyone who carries openly today has to ask themselves, "Wouldn't you be deemed a bit of a kook by your friends and neighbors?"
In other words, while the prudent man of 80 years ago very well could carry openly, the prudent man-or store-owning woman-of today is probably going to choose to carry concealed.
In legal circles this is known as an evolving-community-standards argument. Intellectually and legally, it's a pretty iffy method, but it's used all the time, in cruel and unusual punishment cases, for example, or censorship of pornography.
Still, it provides judges with great flexibility, something that ought to appeal to Paul "The law is a gap and I'm here to fill it" Pfeifer.
Unfortunately, one suspects Pfeifer will use the evolving-standards argument, sure enough, but he'll use it to read gun rights right out of the Constitution. The literal interpretation of Pfeifer's remarks is the standard, anti-gun view: Anyone who wants to carry must be a kook.
After all, all you have to do is look at a person who wants to carry to know they're dangerous. If he happens to be an overweight white guy in a dead-end job, he might well support the Aryan Nations. If he's a young black guy, he's probably a gang-banger.
At least, that's how the state of Ohio seems to perceive the matter, since it presumes plaintiff Pat Feely, a pizza delivery driver who chose to carry a gun because of the risk he might be robbed, criminal for the gun alone.
Yet what about those two High Street store owners?
Wouldn't it have been better for their attacker - who, by the way, was armed only with a knife and force of will - have had just a little more doubt, to know that society supported these women's rights to carry a gun?
The anti-gunners see only the risk that these two raped, robbed women and the dead Sandercock, and everyone they represent, will be incompetent, or make the wrong choice, and kill the wrong person.
But many of us hold a different belief. We believe that members of a free populace ought to make such a choice, whether to bear arms, individually, answerable only to the individual's own conscience and sense of responsibility, and we believe the Constitution says so. And, if things go wrong, and innocents are injured or killed as a result, then those of us who decide to carry must answer to a responsible law, God and ourselves.
And to be sure, innocents will die if people bear arms - just as innocents will die if people don't. We who support gun rights understand that; it's just that we don't ignore half of the equation or even assume that it can boil down to a question of horrific algebra, a calculus of "your innocent deaths exceed my innocent deaths, so I win."
If that makes us all "a bit of a kook," well, perhaps it does. Yet, Justice Pfeifer should know, a good many of us think those who would deny gun rights are a bit of a kook for believing otherwise.
Mike Maurer is a staff writer for ThisWeek.
"When they go to the mall to rob someone, they don't know if it is you and your gun or someone else. It tends to make them back off."
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