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Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Ordered Liberty: Response to Gerard Magliocca
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Friday, February 22, 2013
Ordered Liberty: Response to Gerard Magliocca
Guest Blogger James E. Fleming & Linda C. McClain For the Symposium on James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Gerard
Magliocca rightly places our book Ain
the liberal tradition in the spirit of the late Ronald Dworkin@ (although our civic liberalism is a
synthesis of such liberalism with civic republicanism and feminism). In Ordered
Liberty, we put forward a framework for taking not only rights but also
responsibilities and virtues seriously. Magliocca aptly wonders Ahow the right identified in Heller
[the individual right to bear arms] fits into [our] framework.@ We are grateful to him for posing this
timely and important question.
At the outset, we should clarify that our book focuses on Aordered liberty@
cases protecting substantive basic liberties (or not) under the Due Process
Clause rather than more broadly covering the full universe of constitutional
rights, including the Second Amendment. We believe that this focus is eminently
defensible on the ground that these cases raise the Aculture
war@ issues that divide liberals from
communitarians like Mary Ann Glendon and civic republicans like Michael Sandel.
These cases have constituted the most contested battlegrounds concerning
rights, responsibilities, and virtues in recent years. That explains why the
book, as Magliocca observes, Amentions
guns only in passing.@
Specifically, we mention President Obama=s
call for Amore
civility in our public discourse@
in the aftermath of the shooting of Representative Gabrielle Giffords and
others at a political rally in Tucson (p. 43) and we quote a comment on the
absence of self-regulation by the gun industry: AThe
premise seems to be that if they=ve
got the right to do something, then that=s
the right thing to do@
(p. 286 n.124). Still, we readily recognize that our analysis of rights,
responsibilities, and virtues could be extended to address the individual right
to bear arms. Indeed, if we had still been writing the book on December 15,
2012, the day after the Sandy Hook Elementary School shooting in Newtown,
Connecticut, we likely would have included a fuller discussion of the
individual right to bear arms in our treatment of the Airresponsibility
critique@ of
rights B that
rights license irresponsible conduct and preclude government from promoting the
responsible exercise of rights. (Chapters 2 & 3)
We may write such a fuller analysis of the individual right
to bear arms in relation to responsibilities, virtues, and regulation for a
conference to be held at Boston University School of Law this fall on AAmerica=s
Political Dysfunction: Constitutional Connections, Causes, and Cures.@ The conference plans include a panel
tentatively entitled: AHas
the Constitution fostered a pathological rights culture of rights without
responsibilities and regulation? The case of the right to bear arms and gun
control.@ Here all
we can do is sketch some preliminary thoughts. As we begin to think about such
questions, we immediately confront a conundrum. On the one hand, there is no
individual right that cries out more for governmental encouragement of
responsibility concerning its exercise and for governmental regulation to
promote safety and to protect from harm. On the other hand, there is no
individual right whose defenders more strenuously reject such responsibility
talk and such regulation. Defenders of the individual right to bear arms
including the National Rifle Association have been extremely effective in
making slippery slope arguments, for example, that allowing evidently
reasonable regulations will lead to disarmament. Moreover, slippery slope
arguments take hold in circumstances of distrust of government, and such
circumstances are not propitious for responsibility talk or reasonable
regulation to promote safety and to prevent harm. And so, any attempt to relate
the individual right to bear arms to responsibilities, virtues, and regulations
will face serious obstacles. Still, the stakes are high enough to make it
worthwhile to undertake the effort.
Again, in the book, we quote a comment on the absence of
self-regulation by the gun industry: AThe
premise seems to be that if they=ve
got the right to do something, then that=s
the right thing to do@
(p. 286 n.124). We use this quotation to illustrate the Agap
between rights and rightness.@
A further premise seems to be that, if persons have an individual right to bear
arms, then government may not moralize concerning responsible exercise of the
right in an attempt to close that gap. We think that
there are some analogies between the individual right to bear arms and other
rights that are worth exploring.
With other rights, such as freedom of speech and the right
to procreative autonomy, our book discusses how individuals can and do raise
their voices to urge the responsible exercise of rights and, when the gap
between rights and rightness seems too great, to urge regulation of or
restriction upon rights. Justice Scalia=s
majority opinion in Heller acknowledged that Athe
Second Amendment right is not unlimited@
and that reasonable regulations concerning the individual right to bear arms
might pass constitutional muster, or at least left open the question whether
such regulations might do so. Responsible exercise of First Amendment rights is
also relevant, as manufacturers of target-shooting video games offer the chance
to use military weapons in virtual reality and prime consumers= (including children=s) appetites for such weapons in real
life; the games include links to the web sites of weapons manufacturers. (See this recent article from the New York Times.) The article also reports that the Ayouth-marketing
effort is backed by extensive social research and is carried out by an array of
nonprofit groups financed by the gun industry.@
Constitutional law cases would support governmental
moralizing about responsible exercise of the individual right to bear arms by analogy
to such moralizing encouraging responsible exercise of the right to procreative
autonomy. For example, government might impose a 24-hour waiting period before
one can purchase a gun. Or it might distribute literature concerning the
responsibilities of gun ownership and gun safety to prospective gun purchasers
and indeed to gun owners. Furthermore, there may be analogies between gun
ownership and driving. The government might require prospective gun purchasers
and indeed gun owners to take a written test concerning the operation of guns
together with gun safety. To carry the analogy further, by analogy to a driving
test, the government might require a test to demonstrate proficiency in gun
operation and safety as a condition of issuing a permit. The requirements for
concealed carry permits vary, but they are a good illustration. Or, like
drivers, gun owners might be required to carry liability insurance.
Some may resist the analogy between gun ownership and
driving. They may say that there is a right to bear arms but no right
to drive, only a privilege to do so, subject to governmental permission and
regulation. But does anyone who draws this distinction seriously believe that
if the Supreme Court of the United States held that there is a
constitutional right to drive that its doing so would imperil any of the basic
regulations of driving? Would they seriously argue that the government could no
longer require driver=s
licenses (including the passage of written and driving tests), impose
reasonable safety regulations concerning automobile inspections and speed
limits, or require the purchase of automobile liability insurance? The analogy
holds. More generally, many rights, even Afundamental@ rights like the right to marry, are
subject to numerous governmental regulations.
Finally, the present public division over gun regulation
illustrates how people may have sharply conflicting views about what is the Aresponsible@
thing to do. For example, many people (ourselves included) believe that, in the
wake of the school shooting in Newtown and all too many other shootings,
reasonable regulation of guns is imperative and the responsible policy choice.
Others argue that putting more guns in the hands of good and responsible
citizens B in schools,
on campuses, and elsewhere B
is the solution. On the latter view, responsible citizens arm themselves in
anticipation of violent shooting sprees. On the former view, responsible
citizens do not need weapons intended for military use and should support
regulations to take those weapons out of commerce. All this confirms that the
time is ripe for fuller analysis of the relationship between the individual
right to bear arms and responsibilities, virtues, and regulations.
Posted 9:42 PM by Guest Blogger [link]
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Books by Balkinization Bloggers ![]() Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) ![]() David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) ![]() Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) ![]() Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? 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Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. 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Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |