Ordered Liberty: Response to Gerard Magliocca

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.