Op-Ed: O'Connor opinion ''good news for anyone who believes in the rule of law''

O'Connor a ray of hope in Klein gloom
Michael J. Maurer

The Ohio Supreme Court's Klein decision on the constitutionality of concealed carry laws is good news for supporters of gun rights: They lost by only a 5-2 vote.

My own prediction was that they would lose 7-0, with a slim chance at 6-1 with Chief Justice Tom Moyer in dissent.

But things turned out more favorably. For one thing, the court's best jurist, Evelyn Lundberg Stratton, was one of the dissenting votes. Her vote tells conservatives they were on the side of principle.

During oral arguments, Stratton seemed ready to take judicial notice that Ohioans could, without fear of police molestation, carry their guns ostentatiously, holsters hanging visible from their purses, if guns were really so important to them.

In the end, though, she joined newly seated Justice Maureen O'Connor in a happily sound and modest piece of judicial reasoning: The law ought not require criminal defendants to prove themselves innocent, as the current concealed carry statute does.

Sure, it would have been more satisfying if O'Connor had shown herself to be a wild-eyed Yosemite Sam, a Second Amendment Sister blasting a stone monument to the right to bear arms.

But it may well be more valuable that O'Connor was cautious, working the safer, narrower grounds of essential and general civil rights. If her opinion is less than gun rights proponents wanted, it was nonetheless good news for anyone who believes in the rule of law.

The good news is, O'Connor is emerging as a jurist rather than a policy maker.

As to the narrower issue of guns, it is clear that the majority of our chief judges either do not understand guns or are in the camp of gun-haters.

This is no surprise; this is a court whose intellect was bottled in the soft socialism of the 1970s, built on the New Deal, an era of reverence for state power with little room for the quirk of gun rights. The age of Reagan and Rehnquist has left them behind.

Gun haters let emotion run away with reason. For such people, guns are themselves an ipso facto crime. To them, a prohibition on concealed carry is not only a reasonable restriction, it is the absolute minimum that the state can do. If the court are gun haters, there is little that can be done apart from hoping for a better court.

(Not to mention, of course, urging the General Assembly to restore respect for individual rights by passing liberal concealed-carry legislation. Then we would have a true test of the court's gun mettle, as doubtless that law will also be challenged for its constitutionality.)

If the five-member majority are not gun haters, but are merely gun ignoramuses, unable to understand what all the concealed-carry fuss is about, then this is less the fault of our celebrity judges than it is our own, as citizens.

By our laziness, we have let ourselves, and our leaders, forget.

Justice Joseph Story identified the problem back in 1840: Gun rights are a burden.

"It cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations.

"How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by (the Second Amendment) of our national Bill of Rights."

Our modern gun ethos is a perverse joining of romantic nonsense and grim ignorance.

On the one hand, we stamp our quarters with images of the mythic Minute Man and "Live Free or Die" slogans, our editorialists write easy schlock every July Fourth, and we think ourselves educated because everyone's brain drops into rote coma upon hearing the phrase, "The shot heard round the world."

But on the other hand, our every public policy, including the supreme court's Klein decision, is built on the irrational belief that law abiding people should be prohibited from gun ownership and the reasonable outcrop thereof even as criminals can be expected to abide by gun prohibitions.

The truth is that the militia -- that is, the people bearing arms -- has never been an effective societal formulation, even during the Revolution itself. Time and again, George Washington himself lamented the fact to the Continental Congress, to the states, to anyone he thought might buy him better trained troops:

"I never was witness to a single instance that can countenance an opinion of militia or raw troops being fit for the real business of fighting," he wrote in an Oct. 18, 1780 circular. "I have found them useful as light parties to skirmish the woods, but incapable of making or sustaining a serious attack."

Such quotes doubtless delight anti-gunners, but they act out of partisanship and interest, dishonestly grabbing at any plank that will do.

The people who should be embarrassed are the glad-handers, the people who cheer fireworks but can't be bothered to combat widespread neglect, the people who have allowed us to form the general belief that owning guns is, on the one hand, an easy cure for whatever ails us, and on the other hand, an evil, Svengali-like threat that will fill the streets with blood.

Part of me is not worried, because the right to violence is a natural right that never goes away, indeed can't go away. We won't lose it even if our Constitution collapses entirely. Just ask Yasir Arafat, winner of the 1994 Nobel Peace Prize.

But another part of me is saddened. We are the greatest society on earth with the greatest government on earth precisely because of our freedoms, our trust in individuals, and there is no greater trust than the right to bear arms.

Contrary to what our celebrity jurists believe, the right to bear arms is not about the rights, competence and happiness of the people.

Gun rights are about the credibility of government.

So long as the people's right to bear arms is respected, our government can properly claim to be a government of the free.

Unhappily, Klein demonstrates that our government is today something less.

Mike Maurer is a staff writer for ThisWeek.

Click here to read Michael Maurer's op-ed in Columbus ThisWeek.