Boston University School of Law
This Article focuses on the case of the Second Amendment right to bear arms and gun control to examine whether the Constitution has fostered a pathological rights culture of rights without responsibilities and regulation. We offer some preliminary thoughts about “ordered gun liberty” – the individual right to bear arms in relation to responsibilities, virtues, and regulation. This article addresses a conundrum concerning this right: 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, and yet there is no individual right whose defenders more strenuously reject such governmental promotion of responsibility and regulation. We argue that, notwithstanding the rhetoric of rights absolutism, ordered gun liberty supports a “reasonable right to bear arms” that also recognizes the proper role of regulation. We highlight several dimensions of responsibility talk in the discourse concerning the individual right to bear arms, including in District of Columbia v. Heller itself. We address the myth of strict scrutiny for Second Amendment rights, pointing out the wide latitude that protecting an individual right to bear arms, like other rights, leaves for government to encourage responsible exercise of the right. We argue that a form of intermediate scrutiny analogous to that of Moore v. East Cleveland under the Due Process Clause is a strong candidate for the appropriate framework for thinking about rights and responsibilities under Heller for gun control regulation, as is the undue burden standard of Planned Parenthood v. Casey. As a practical example of appropriate regulation, we discuss regulations to protect children from guns in the home – a context in which Second Amendment rights intersect with fundamental parental liberty, family privacy, children’s own rights and needs, and governmental authority to protect children from harm or evils and further their healthy development. We argue that, notwithstanding the NRA’s rejection them, safe storage, or Child Access Prevention laws, are a reasonable regulation aimed at preventing unnecessary injury and loss of life and do not unduly burden Second Amendment rights or fundamental parental liberty or religious liberty. While the NRA advocates exhortation and education over regulation, we counter that, in light of the developmental differences between children and adults – pointed out in the Supreme Court’s jurisprudence – supplementing gun education (focused on avoiding guns) with actual regulations requiring adults to take steps to keep children safe is likely to be more effective. We also argue that the privacy of the home is not unduly burdened by medical practice aimed at taking a public health approach to ameliorating risks to children by encouraging responsible gun storage.
Linda McClain & James Fleming,
Ordered Gun Liberty: Rights with Responsibilities and Regulation,
Boston University Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/230