In an article some forty years ago on abortion, John Noonan calls line-drawing “the ordinary business of moralists and lawmakers.” In the wake of the San Bernardino massacre, line-drawing has seemed to me all the more urgent, though I’m tempted to despair, even in this season of Advent (of waiting, waiting, waiting), over the capacities of our democratic representatives in this regard.
That said, today brings what strikes me as some good news: the Supreme Court’s 7-2 refusal to hear a Second Amendment challenge to an Illinois ordinance banning semiautomatic assault weapons and large capacity magazines.
As readers likely already know, the Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Readers also likely know that jurists and historians will debate endlessly the bearing of the Amendment’s opening, prefatory clause on the second, operative clause. See, for example, part II of Justice Antonin Scalia’s opinion for the Court in District of Columbia v. Heller (2008), extended by Justice Samuel Alito’s opinion in McDonald v. City of Chicago (2010).
Guns figure differently in Northeastern Pennsylvania than in all the other, much more urban places I’ve lived my adult life. It wasn’t a surprise, then, to come across a couple of young men in Wilkes-Barre’s Public Square, the day after the San Bernardino massacre, holding placards in support of gun rights. Here’s the question I put to them: Under the terms of the Second Amendment, do I have a right to nuclear arms? What about a Predator drone to circle my property? Presumably the answer is no, I don’t have such a right. But where, and on what grounds, do we draw the line?
The word "Arms" has what the legal theorist H.L.A. Hart called “a fringe of vagueness or ‘open texture,’” with “a core of certainty and a penumbra of doubt,” which he claimed all general terms have. Hart’s example is the concept "vehicle" in the context of the rule that “no vehicle may be taken into the park.” Are wheelchairs ruled out? Skateboards? Tricycles? Baby strollers? We can choose to call, for example, a child's tricycle a vehicle for purposes of applying this rule; but Hart’s point is that there’s no use pretending that we couldn’t have chosen otherwise—as if the concept gave us no choice by laying down in advance what we had to include and exclude under it. I take it that the Supreme Court’s refusal to hear the challenge to the Illinois ordinance is an invitation to draw the lines around "Arms" a little tighter than Second Amendment absolutists would have us do. Compare here the philosopher Jean Kazez’s argument that “gun liberties” have to be distinguished from “liberties in the sphere of religion, speech, conscience, and political participation.”
By the way, the two young men in Wilkes-Barre’s Public Square were impressively open to having a substantive discussion. With more time, it might have been worth talking about the extension of the castle doctrine to stand-your-ground laws. Truth to tell, though, I’m not sure I would have talked with these men at all if I’d noticed, before our conversation rather than only after, that one of the two had a big, black gun slung across his back.