Balance of Power

    'Tell us your theory,' Sarah countered. 'If I have anything to add, I will.'

    Quickly refocusing on Mary, Lenihan spoke with the paternal air of a doctor prescribing medication. 'Under California law, Mary, we need to prove that Lexington caused Bowden to act. In essence, that it persuaded him that the P-2 was the best available weapon for killing all of you . . .'

    'How?' Mary asked in bewilderment. 'John's dead.'

    'True. But we do know that he flew to Las Vegas on the day of the gun show. And after he died, the police found the SSA magazine in his hotel room, containing the ads the President mentioned in his speech— calling the P-2 an 'endangered species, banned in California.' ' Lenihan permitted himself a smile. 'There's an old saying that if you go to bed without snow on the ground, and the next morning awaken to snow, the inescapable conclusion is that it snowed.'

    'Snow aside,' Sarah remarked, 'it would be far better if we could find the seller. Or, at least, someone Bowden talked to about buying the P-2.

    'There's an unfortunate decision called Merrill versus Navigar. That case involved an office massacre in San Francisco where the murderer also killed himself. The survivors sued the gun manufacturer on much the same grounds—inflammatory advertising. But the California Supreme Court ruled for the gun company, saying it was protected by a peculiar state statute shielding gun companies from product liability lawsuits— partly because there was no direct evidence that the murderer ever saw the ads.

    'The California legislature promptly repealed the statute. But Lexington still can argue that there are a thousand other places Bowden could have bought the gun—including the black market . . .'

    'Of course,' Lenihan told Mary, 'if Lexington had required a background check at gun shows, Bowden couldn't have bought it there. Instead, they virtually invited him to Las Vegas—not only to acquire a P-2 but bullets designed, and I quote, to inflict a 'massive wound channel.' When we begin gathering documents and deposing Lexington witnesses, we'll explore what research they did to authenticate that claim. I intend to show the jury that they believed every word.'

    Silent, Mary stared bleakly at some middle distance of the mind—in remembered horror, Sarah supposed, perhaps combined with disbelief that Lexington would choose to profit in such a way. Turning to Sarah, Lenihan asked, 'Speaking of juries, you tried the Tierney case before a federal judge. No disrespect intended, Sarah, but I have to ask how many jury cases you've tried.'

    Surprised, Sarah tried to appear unruffled. 'Three.'

    'Any plaintiffs' cases?'

    'None at all.'

    'Have you at least tried a personal injury case, or a wrongful death action?'

    'I haven't. As you already know.'

    'That's just as well,' Lenihan responded with an amiable smile. 'God knows your mentors in your former law firm lost enough of them. To me.'

    Mary shifted in her chair. 'If you're trying to embarrass me,' Sarah said in even tones, 'at least address the issues. To even get this to a jury, you'll have to prepare for the argument that any suit is barred by the Second Amendment.'

    Lenihan, Sarah sensed, was eyeing her with increased caution. 'The Second Amendment defense has never flown,' he parried. 'Not in a civil case.'

    'Not in California,' Sarah agreed. 'At least not yet.' Facing Mary, Sarah explained, 'Until recently there's been an unbroken line of cases, including a Supreme Court case, which suggested that the Second Amendment does not protect an individual's right to own a gun—as opposed to a collective right which belongs to governmental bodies like the police department, or the National Guard.'

    Mary nodded. 'That makes sense to me.'

    'And to me. But the SSA disagrees. They claim that the Constitution enshrined the right of armed insurrection by individuals against the government the men who drafted it created, replacing votes with bullets. They also claim that this right cannot be infringed for any reason—that leading the Western world in homicides is the price we pay for this precious 'freedom.'

    'Until a few years ago, no one but gun fanatics took that seriously. Then the SSA began financing a wave of 'scholarship': one law review article after another which argued that Madison, Jefferson and the rest meant each of us to have the absolute right to own any weapon we want—including weapons that the Founding Fathers never dreamed of. Like the Lexington P-2 and Eagle's Claw bullets . . .'

    'That's absolutely ridiculous.' Mary's voice trembled in anger. 'I saw that gun kill my family. I saw what that bullet did.'

    'It is ridiculous,' Sarah echoed softly. 'Even sick. But at the same time those articles started appearing, Republicans began appointing federal judges approved by the SSA—or, at least, who shared its views.' Sarah slid some papers across the desk to Mary. 'I've copied a Texas case which began in federal court. An abusive husband subject to a restraining order claimed that the Constitution created a right of individual gun ownership—one so absolute that it barred the government from taking his gun away. Even to protect his wife.

    'Creating precedents cuts both ways. This judge, a Reagan appointee, found that the right exists. Whether it's absolute, permitting a spousal abuser to keep his guns no matter what, has yet to be decided. And a recent opinion from this circuit, Silvera v. Lockyear, the most thorough opinion written on the subject, says emphatically that the Second Amendment does not create an individual right to own a gun. But you can see where the SSA is going: if unregulated gun ownership causes so much violence that we all get sick of it, the SSA's only hope is to create an absolute right, embedded in the Constitution, which would bar us from passing new gun laws.' To Lenihan, Sarah finished, 'With the SSA's encouragement, I'd expect Lexington to argue that it can't be sued for an activity which enables citizens to exercise their sacred Second Amendment rights. Even in the face of the Silvera case, and even for citizens like Bowden.'

    Mary listened intently. Glancing at her, Lenihan told Sarah, 'And even I read cases. In fact, I'm thoroughly familiar with the law surrounding guns. That's one of several reasons she's asked me to represent her.'

    'Which you'd like to do without me,' Sarah answered calmly. 'So let's stop playing games.

    'I didn't call Mary—you did. I've never met with Mary alone. And after she leaves here, I'm not going to call her to explain why you shouldn't represent her, or I should.' Sarah's voice became crisp. 'On the other hand, I'm quite confident that as soon as you leave here, you'll give her any number of reasons why you should try this case without me. So why don't you tell us both?'

    After an instant, Lenihan shrugged. 'I'm sure you're an able lawyer, Sarah. At least you've read a lot about guns. That's because, for you, the client is the cause.

    'To me, the client is Mary. My job is to bring thirty years of experience to a single cause—to simplify the case, to present the most attractive facts to the jury in the most persuasive possible way, and to win Mary the largest recovery possible.' Pausing, Lenihan gave Mary Costello an encouraging smile. 'And, not incidentally, inflicting so much pain on Lexington that an entire industry will shiver.

    'I understand the First Lady's affinity for the Kilcannon Center. I'm sure, as an older sister, she means to look after you. But when it comes to the courtroom—as the President would say if he were here—there's no one better suited than I. You don't need me wasting time in needless quarrels over strategy.'

    Turning, he held up a placating hand to Sarah. 'I, too, admire the Center. It's simply a question of whether you're the right lawyer for Mary's wrongful death action. You're not. Both because of inexperience and because public interest lawyers push the law to its limits. Even if that endangers the client's interests.'

    Smiling, Sarah spoke to Mary. 'Bob's right,' she acknowledged. 'I'd like you to advance this lawsuit in a way which protects others from suffering as you have.

    'I'll never conceal that. I think you should do it. But I'll always tell you when the