Balkinization  

Wednesday, February 20, 2013

Ordered Liberty and Guns

Gerard N. Magliocca

For the Symposium on James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)


 Ordered Liberty:  Rights, Responsibilities, and Virtues is a thoughtful defense of the liberal tradition in the spirit of the late Ronald Dworkin.  I must admit that I am a skeptic when it comes to any theory of adjudication.  It is sometimes hard to distinguish between comforting justifications for rights that your fellow travelers like and reasons that can convince people who are not in the choir.  Accordingly, I am curious to know how the right identified in Heller fits into Fleming and McClain's framework.

Some of the objections that the authors discount to a strong understanding of rights could be applied to gun ownership.  For instance, a communitarian may say that the widespread possession of guns breeds irresponsible behavior and harms social welfare.  Likewise, a minimalist may say that the courts are ill-suited to make judgments about gun regulation--those choices belong to elected officials.  On the other hand, the authors say that they are developing "an account of responsibility that takes rights seriously, avoids submerging the individual into the community, and appreciates the value of diversity in our morally pluralistic democracy." Gun rights are an excellent example of tolerating diversity as between urban and rural citizens by respecting individual autonomy.  Or are they?  I can't tell because the book mentions guns only in passing once (unless I missed something).

Put another way, what is included in the "liberal theories of rights" that Fleming and McClain affirm so well and what "inculcates civic virtues" in the way that they want?  Many Americans believe that gun ownership is included and is part of being a responsible citizen.  Are they wrong?

UPDATE:  Normally, I open my posts to comments, but as this is part of a symposium I will not do so this time.






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