09 July 2011

Open Carry of Handguns: Just Dumb?

We visit again that peculiarly American issue, the possession and use of firearms.

Today, the focus is upon “open carry,” the practice of “strapping on a hog leg” (to use the parlance of the nonexistent old West) or putting a hand gun in a holster and wearing it when you go about your daily business in public.

Like all formulaic essays, let me begin this one with a very dear thesis statement: Strapping on a hog leg and walking down the street is a really, really bad idea.

“Walking down the street” – that’s important. In rural areas, in the woods, I still regard it wise and perfectly normal to carry firearms.

What prompts today’s pique is news of a “civil rights” lawsuit filed in the Northern District (Federal) Court in West Virginia. A lawyer and his father went into the local Kentucky Fried Chicken for a meal and the lawyer was toting a holstered pistol. (This gentleman is not listed in the bar in West Virginia, but is a trial lawyer practicing elsewhere.) Presumably, someone in the restaurant took note of this singular occurrence and, after a Wheeling (WV) police officer appeared. The officer requested identification from the gun-toting fellow, took the weapon from him and ran the serial numbers through his dispatcher. The gun-toting lawyer says that he was de facto detained and at least insofar as he wanted his pistol back, that’s pretty obviously true.

After finding that the weapon’s history was “clean,” the officer offered the weapon back to its owner. According to the press report, the owner demanded that the police officer return it the way he got it, and that the police officer personally replace the firearm into the owner’s holster. (A gun owner also complains that the police officer did not handle the weapon skillfully, including hanging up a round when he cleared it.) As a result of this event, the owner has filed suit in federal District Court where he seeks money damages for his suffering (Inconvenience? Annoyance? Persnicketiness?), an order that the police be given mandatory training on how to interact with (ignore?) persons lawfully carrying firearms, and that he’d be awarded his attorneys fees, courtesy of the taxpayers of West Virginia.

Chief Robert Matheny of Wheeling (a decent fellow and a good lawman) has responded to the publicity sharply. He says that until some Court orders otherwise, his officers are still going to stop people openly carrying firearms to make an inquiry about their business. The Chief terms the act of carrying a hog leg “unnatural and uncommon.”

Why do people carry firearms? “Because I can” certainly is one answer commonly heard, which is a variation on “Mind your own damn business.”

The law regarding firearms is peculiarly American. It is based first on the Second Amendment:



A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.


The United States Supreme Court was long loathe to touch Second Amendment issues. Over the years, regulations and limitations increased steadily, although nowhere nearly to the extent sought by people who oppose firearms in civilian hands. Under current law, occasional private sales between individuals are unregulated. Commercial sales may only be done by persons who have a Federal Firearms License, which places upon dealers strict record-keeping requirements and penalties for selling firearms other than provided by law. A buyer from a dealer must present identification and must be cleared in a telephone background check. Convicted felons, those convicted of domestic violence offenses, persons with dishonorable military discharges, persons addicted to drugs or alcohol, and persons adjudged mentally incompetent may not possess a firearm. Some states impose a waiting period between beginning to purchase a firearm and acquiring it and others fiddle with regulations which approach the level of out and out bans. The United States Supreme Court barred the District of Columbia from enforcing a complete gun ban in the Heller decision in 2008, and in the 2010 case McDonald vs. City of Chicago, the United States Supreme Court declared that the Second Amendment creates a personal right which is extended to all state action through the 14th amendment. Thus, the right to possess a firearm joins free speech, free exercise of religion, free assembly and so forth as individual rights. (I am aware of the interesting discussion under the 9th amendment that the rights enumerated in the Bill of Rights are not exclusive but set out rather by way of limitation on the power of government.) There will be more to come from the federal courts as they build on the McDonald decision and respond to the ways that state and local governments are now regulating firearms. For example, the City of Chicago has placed such extreme limitations on firearms ownership that we must wonder if it is equivalent to another ban.

In West Virginia, firearms have both constitutional protection and traditional respect. The West Virginia Constitution provides:



A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use.


Under legislation in West Virginia, one may carry a firearm openly and if one meets a training requirement, the Sheriff of each county will issue a permit to carry a concealed pistol.

The status of firearms ownership is a tradition extremely well-established in West Virginia. There is a “frontier tradition” which is ever present. The State seal depicts a farmer with his ax and miner with his pick and before them are crossed long rifles upon which lays a Phrygian cap. West Virginia is still reasonably wooded, and hunting and other shooting sports are popular. And the concept of personal armaments for personal defense is well ingrained.

But carrying openly? Bad, bad idea.

Let’s face it, strapping on the old hog leg is indeed “unnatural and uncommon,” and just inherently suspicious. We do not need to put our common sense on hold here. When one openly displays a weapon, one is doing the equivalent of being that guy going to the gym wearing a “muscle shirt,” which gives everybody the message, “I’m a tough, baaaaad man.”

Proponents say, correctly, that open carry is lawful in West Virginia. They add that the rest of us had better just get used to it. Does that mean we have to park our brains at the door when we go into a restaurant? How about when dirtbags carry openly rather than (illegally) concealed? This is not to say that only the polo shirt crowd can be trusted with a firearm. For that matter, some of the polo shirt crowd look quite rustic on the weekends. There are simply people who will be carrying firearms for criminal acts. Moreover, the ones who are intelligent and continue to do so the way they always have, in a concealed manner.

My biggest problem with open carry is that it is ineffective. Look at the purposes of going armed as set out in West Virginia Constitution. We use firearms for hunting, for sport. There is a small community of ultra-high precision shooters for whom long-range accuracy is a self sustaining, no-other-purpose passion. Fine with me. By the way, I’m not one of them, I must confess my own marksmanship is fairly average on a good day.

For all of the sporting uses, when one talks about handguns, one is talking about a weapon intended primarily for use against people. And, frankly, some gun proponents shy away from talking about the primary anti-personnel purpose of a pistol, and that is so patently obvious it weakens their otherwise justified position.

Carrying a firearm openly does not promote personal protection. The open-carrier says to the threatening world, “Shoot me first, take me out of the fight.” Perhaps carrying a concealed weapon makes for an “unfair fight,” but if one is in a fight which is just, why in the hell would one want it to be fair? There is, after all, darn little future in a fair fight.

So what’s the other side of the coin? What’s a good reason to carry openly? Well, by God, it’s my constitutional right. Perhaps, proponents would urge that the conversation ends there. But in any thinking, reasoning and rational society, our discussions and our individual decisions should be reasoned rather than knee-jerk. Simply “it’s my right!,” carries with it a refreshing and manic defiance, the “I am a free man!” approach. (Here, I picture the open opening sequence of the 1960s cult television series The Prisoner. Also, I must note that the defiance literature and tradition seems predominantly male in American culture. Ladies, please pardon me if I follow that convention for a bit.)

Another point supporting the idea of an act of defiance is that we are “raising awareness” of the right openly carry a firearm. This argument is the old paper tiger. Do we really need to raise awareness of weapons? Hardly. The awareness we may indeed want to raise is that the criminal element cannot tell who are the “unwise targets,” who have the capacity for violence which will come as an unpleasant surprise. Defiance to “raise awareness” simply prompts counter defiance, and the discussion degenerates to a “Oh, yeah?” “Yeah!” quality which virtually guarantees that we’re not going to come to synthesis or resolution or, God help us, synergy.

In the Wheeling case, I am willing to criticize the police in one respect. I think it was a significant mistake to cater to the gun owner’s demand to put the weapon back in the holster. In doing so, the police catered to the gun owner’s petulant control game and succumbed to a bit role in the owner’s ridiculous Kabuki theater. “Here is your firearm, do you want it back?” And if the owner didn’t want it back from the officer’s hands, screw it, he wanted to make a point more than he wanted his property.

In a broad sense, we have seen political changes and policy changes. One challenge is channeling change in a way that we adapt to needs without sacrificing principles. The siren call of extremism in the firearms debate beckons us to abandon reason. Responsible policy development does not happen on the streets or in parades. Not even on the front pages of newspapers or in lawsuits. Changing growth happens in the back rooms. And in the front rooms, and the hallways, and wherever people – not “activists” – gather together and abide by the dictates of the Book of Isaiah: Come now, let us reason together.

Honest and reasoned discussion does not get the headlines. But I’ll take it as the method of responsible citizenship every time.


Note reference the old West: I was reading an interesting notion by Historian David McCullough in Mornings on Horseback, a biography of the early life of Theodore Roosevelt. He credits the writings of Eastern Ivy educated elite with magnifying the small segment of Western society from the west central and southwestern United States to full-blown myth status. He singles out The Virginian, by Owen Wister, and the accounts of ranch life, by Theodore Roosevelt.

R

2 comments:

Jeff Gill said...

Of course, there's always the notable Robert Heinlein quote as to open carry -- "an armed society is a polite society." An interesting proposal, but the so-called Old West doesn't seem to support that formulation.

Andy said...

Heller confirmed that the right was an individual right (the fact this was ever in question given it is a right in the Bill of Rights was silly to begin with), and McDonald incorporated that right.

This lawsuit has merit, and the police were wrong to do what they did. And rights cannot simply be reasoned away.

http://sea.hxr.us/2011/07/lawyer-from-west-virginia.html

Also, it is customary and natural to provide links to original story.