Supreme Court

Citing Judicial Deference, Conservative Federal Judge Upholds Maryland 'Assault Weapons' Ban

Judge J. Harvie Wilkinson urges judicial minimalism in Second Amendment case.

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Library of Congress

Last week the U.S. Court of Appeals for the 4th Circuit upheld a Maryland gun control law that bans "assault weapons" and detachable large-capacity magazines, holding that the Second Amendment offers no impediment to such legislation.

Among the judges who joined the 4th Circuit's 10-4 decision in this case, Kolbe v. Hogan, was a highly respected legal conservative named Judge J. Harvie Wilkinson III.

What led a respected conservative judge to uphold a sweeping gun control law? In addition to joining the majority opinion, Wilkinson filed a separate concurrence in which he explained his thinking. According to Wilkinson, the matter boiled down to the core principle of judicial deference. "It is altogether fair," Wilkinson wrote, "to argue that the assault weapons here should be less regulated, but that is for the people of Maryland (and the Virginias and the Carolinas) to decide."

In Wilkinson's view, if the federal courts enter the business of invalidating democratically enacted gun control measures such as the ones at issue here, the end result will be to "empower the judiciary and leave Congress, the Executive, state legislatures, and everyone else on the sidelines." As far as Wilkinson is concerned, the federal courts "are not impaneled to add indefinitely to the growing list of subjects on which the states of our Union and the citizens of our country no longer have any meaningful say."

Wilkinson's concurrence offers the classic argument for judicial deference, or judicial restraint: If you don't like what your lawmakers have done, take your complaint to the ballot box, not to the courthouse. For decades this was a dominant view among legal conservatives. Indeed, as recently as twenty years ago, Wilkinson's ode to judicial minimalism would have placed him squarely within the mainstream of conservative legal thought, even though it arose in the context of a Second Amendment case.

But the times are changing. Judicial deference is no longer quite as popular among legal conservatives as it once was, and this particular case helps to illustrate why. After all, doesn't the Second Amendment itself suggest that there are some subjects on which democratic majorities should not have any meaningful say? Doesn't the Constitution place certain rights beyond the reach of lawmakers, and isn't it sometimes the job of the federal courts to enforce those constitutional limits and strike down overreaching legislation, even when such judicial action requires the courts to act in an anti-democratic fashion?

As a principled advocate of judicial deference, Wilkinson effectively answers no to such queries. The big question going forward is how many legal conservatives are still willing to side with Wilkinson.

Related: Conservatives v. Libertarians: The debate over judicial activism divides former allies.

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  1. Last week the U.S. Court of Appeals for the 4th Circuit upheld a Maryland gun control law that bans “assault weapons” and detachable large-capacity magazines, holding that the Second Amendment offers no impediment to such legislation.

    Hm…

    A well-regulated militia, being necessary to a free state, the right of the people to keep and bear arms, shall not be infringed.

    I see a problem with the courts reasoning.

    1. Obviously, R S, you are using the modern interpretation of “be infringed” rather than the Founders’ intended meaning of “have fringe put around the edges”. 8-(

    2. This is the simplest most slam dunk legal argument of all time. For some reason we are arguing about bells and whistles on a semi-automatic rifle. The Second Amendment is clear. We should not even be arguing about owning tanks or battleships. We should be arguing about how to amend the Constitution so that the nut down on the corner can’t get nuclear weapons – because “not infringed” means not infringed.

      I really don’t get where these justices keep seeing the silent clause “unless it is a really bad policy”

      1. There’s a lawyerly way to look at it that makes infringement invisible by degrees. If you have the right to keep & bear any single type of armament, then even if all others are forbidden you, you can be said to have the right to keep & bear arms. Therefore none of the prohibitions on any of the other arms to you infringe your right to keep & bear arms, because they don’t affect that single type of armament you’re allowed. See, it doesn’t say the right to keep & bear any kind of arms shall not be infringed.

        Even that can be lawyered away, because they can say you didn’t have that right to begin with, so it’s not infringed no matter what happens to it. I.e. if you had a right to keep & bear arms, then that right shall not be infringed, but if you didn’t have that right, then protection from its infringement makes no difference to you. You think you already did have that right? Prove it.

      2. It’s a bit of a stretch to call a tank or battle ship “arms”.

        Though if you have the cash, you can own a tank.

        Nuclear weapons probably shouldn’t be available. I’m a pretty calm and even keeled sort of person. But if I had nukes, I’d definitely use them. I mean, how could you not?

        1. That is the crux of the issue, isn’t it? “Is a good idea” has displaced “complies with the law”.

          This moves government of laws, not men off the table.

          Of course there are loads of weapons that you wouldn’t want the nut down the street to have. Or anyone else. Like land mines. The remedy is not to invent limits on the second amendment. It is to amend the Constitution.

          We keep making up constitutional requirements based on justices personal policy preferences. That is dangerously bad.

          1. If this judge really wants elections and Democratic processes to decide this issue, he should kick it over to a constitutional convention for a constitutional amendment. The correct way to get this into the Democratic process is to enforce the Constitution as written and require amendments to change it.

          2. I have no issue with anyone owning any weapon of war. It is exactly what the US was founded on. There was never any BS restrictions and there was never supposed to be. The ATF is completely unconstitutional and so is all laws restricting arms and explosives.

  2. How does one draw the line between blatantly unconstitutional and probably unconstitutional but I am going to let people in this state vote new people into power to change it back to being in the bounds of constitutionality?

  3. Ah, so if a state passes a law restricting abortion it will be judged by the same standard, yes?

    1. They are totally different things! The only purpose of assault weapons is to kill people!

      1. You made me laugh!

        1. *** polishes fingernails on shirt ***

        2. But you were ashamed for laughing….i know I was.

    2. THIS

      Judges seem to be unable to hold the same principals constant throughout all matters. What makes this worse is the plain language of the 2nd amendment.

      1. The principles are perfectly consistent between the Left and Cuckservatives: the Left always wins.

    3. Sure, if you forget about that little thing called “precedent”.

      1. “We can’t stop digging ourselves deeper into this hole! That would be unprecedented!”

      2. Precedent is the magic by which Cuckservatives convert unconstitutional Leftist judicial usurpations of power into hallowed constitutional principle.

    4. I was thinking the exact same thing

    5. The courts have upheld numerous laws placing all sorts of restrictions on abortion, but nice try.

    6. If there wasn’t already Supreme Court precedent that declared abortion legal under a certain range of conditions, then yes. That’s why states keep trying to pass abortion restrictions.

    7. “Roe is binding precedent!

      But when we glanced at Heller, we only looked at the dissent.

      Lulz, judge4lyfe.”

      1. Precedent, like all law in a lawless land, is only binding on Cuckservatives.

  4. Wilkinson wrote in his dissent…

    I am unable to draw from the profound ambiguities of the Second Amendment an invitation to courts to preempt this most volatile of political subjects and arrogate to themselves decisions that have been historically assigned to other, more democratic, actors. The fact that Heller exempted from legislative infringement handguns broadly utilized for self-defense in the home does not mean that it disabled legislatures from addressing the wholly separate subject of assault weapons suitable for use by military forces around the globe.

    ARE YOU FUCKING SERIOUS??

    Scalia did us no favors with his opinion in Heller when he left the door open for scary black semi-auto rifles to be considered weapons of war. But in his defense it’s not even that clear that’s what Scalia was saying.. but now we see how jurists like Wilkinson will conflate civilian ARs with full-auto if given the chance.

    And I’m not convinced he’s some principled jurist. Rather he could be the cop-fellating type that thinks he’s making their job easier by proscribing ARs.

    1. sorry^ his concurrence, not dissent

    2. Handguns are employed by military forces around the globe AND used in home defense. You know what else is employed in armed self defense? It’s not Hitler, guys, it’s ARs. These arguments completely breakdown with any amount of rational thought.

    3. but now we see how jurists like Wilkinson will conflate civilian ARs with full-auto if given the chance.

      The conflation shouldn’t matter. 2A and the State level equivalents (Article 1 Sec 13 in VA) apply to military grade hardware. The point is to have access to the same bearable arms that would be used against you.

      1. the 4th Circuit includes Virginia, so I’m sorry to break the bad news to you wrt Wilkinson’s 2A jurisprudence.

        1. Well, shit. Mondays are bad enough without me knowing that.

        2. Fortunately, states can have stronger (or less easy to weasel out of) protections of the right to bear arms.

      2. “The point is to have access to the same bearable arms that would be used against you.”
        Ah, the “absolute unfettered access” argument.

        Amusingly enough, while anyone publicly arguing that the 2nd Amendment protects the right of citizens to own artillery, nuclear weapons and battleships would be laughed right into crazy-town, it’s also the most defensible “Originalist” conclusion.

        1. I’m not so sure about that. It’s been my understanding that “arms” refers to the sort of weapons that an infantryman can carry. So it should probably include things like grenade launchers and small rockets. But probably not large artillery, battleships, missiles and bombs.

        2. Are you aware that in 1789, every free man could own cannons, grenades, and – shortly thereafter once they were available – artillery rockets?

          And that one can still, in almost all of America, own a muzzle-loading cannon or mortar?

          You can laugh all you want, but “artillery and military-grade ships” is exactly included; otherwise the “letters of marque” clause meant nothing, rather than providing extra power for the US forces in the war of 1812.

          (People would once laugh at the idea that the First Amendment protects pornography, and yet the plain text always did.

          Laughing is not an argument, especially laughing based on historical ignorance and hoplophobia.)

          1. This. People pretend history doesn’t exist and when shown facts deflect and pretend today is different….it isn’t.

            Its absurd what has happened to our right to rebel and self defense.

    4. If the 2nd amendment protects anything it is military arms. I would think that a ban on hunting rifles would be more reasonable under the constitution than a ban on assault rifles given that the amendment specifically refers to the militia and says nothing about hunting or sport shooting. (Of course, I think that it should be interpreted to cover all sorts of guns and other portable weapons).

      1. A weapon is a weapon and the 2A protects it no matter what kind of weapon.

    5. scary black semi-auto rifles to be considered weapons of war.

      All guns are scary (even ones made of pop tarts) so they can all be banned.

      Muh feelz!

  5. if the federal courts enter the business of invalidating democratically enacted gun control measures such as the ones at issue here, the end result will be to “empower the judiciary and leave Congress, the Executive, state legislatures, and everyone else on the sidelines.”

    Someone should apply this logic to the gay marriage topic. In Virginia, marriage was defined in the constitution. It was not merely a law, but a constitutional amendment. While I disagree with its inclusion in the Constitution of the Commonwealth, I don’t think the feds should be able to arbitrarily alter the Constitutions of the States, especially on a topic in which the feds have no defined authority. That said, when it comes to a law that is in violation to the exact wording of the federal constitution in an area where the feds do have actual authority, the courts should strike it down. This case was a textbook open/shut second amendment case that should have killed the Maryland “assault weapons” ban.

    1. to quote Wilkinson…

      To say in the wake of so many mass shootings in so many localities across this country that the people themselves are now to be rendered newly powerless, that all they can do is stand by and watch as federal courts design their destiny

    2. The marriage thing was perhaps a stretch of legal reasoning. But the US constitution is superior to state constitutions and does overrule them. So if there is a problem it’s the interpretation of the 14th and not the ability of the feds to invalidate parts of state constitutions.

  6. In urging us to strike this legislation, appellants would impair the ability of government to act prophylactically. More and more under appellants’ view, preventive statutory action is to be judicially forbidden and we must bide our time until another tragedy is inflicted or irretrievable human damage has once more been done.

    christ on a fucking stick. did Bloomberg write Wilkinson’s concurrence?

    1. the ability of government to act prophylactically

      “Show me where in the Constitution ….”

      1. If you look at the commerce clause in the mirror under a full moon with Mars rising you’ll see the letters F, Y, T and W appear. This is known.

      2. He said “ability” not “legal authority”.

    2. Does Wilkinson not see that he IS making a policy, not a constitutional, decision. If he truly wanted to defer to the will of the people, he’d say, nope that law is unconstitutional, and if you don’t like the result, there’s a process to amend. In the mean time, it’s not up to me to decide if this is good policy. Instead, he’s doing the exact opposite of what he says he’s doing.

  7. The weapons that Maryland sought to regulate here are emphatically not defensive in nature.

    -Wilkinson.. paraphrasing Jim Jeffries standup routine

    1. Obviously the judge meant that those weapons do not occur naturally, as in grow on trees.

      1. Yet there’s one growing in the trunk of every cop car in America.

    2. If AR-15s aren’t “defensive in nature,” then we should have full-auto M-16s like the U.S. Department of Defense has.

    3. If your offense is to rid your person of a long train of abuses and usurpations doesn’t that then mean it is actually defensive in nature?

  8. Heller says that self defense is a core principle of the second amendment. That’s good because the right to self defense applies not just in the home. Logically, it extends to outside the home, and even when traveling to other states. Do I lose my right to self defense when I travel to California ? Obviously not.

    On the other hand, Heller refers to weapons in common usage. That’s bad because any new type of weapon can be killed in the cradle (for civilians), and therefore never be in common usage. Better would be a timeless principle like the weapon available to, and used by, an individual in the military.

    1. Any weapon is fair game for the citizen to own. History of the country shows the freeman owned any weapon he so pleased if he had the money to afford it.

  9. How bout you defer to the fucking plain language of the Constitution?

    1. It’s those fucking commas. Why commas? Why?

    2. Look.

      I realize that’s a fun thing to say.

      But, uh, can you tell me what exactly infringement means and meant?

      The Founders don’t seem to have thought “disarming convicts and prisoners” violated it, yet they are certainly part of “the people”.

      So thus some, even if minor and traditional, disarmament or limitation was encompassed in “not infringed”.

      Nobody has a clear story for what the term means, because it’s not meant to provide a dividing line.

      1. Convicts, as in violent felons, lose rights as a result of their sentence. Prisoners are a fairly obvious separate case as well. When the reference is to “the people”, and not “some people”, I think it’s obvious the subject is laws that impact citizens broadly, not particular groups of citizens in separate legal categories.

        1. Is there any legal basis to the original founder saying a felon can loose a right forever? I think its ridiculous. Once time is severed and/or fine is paid you are done and have all your rights back.

  10. So under Heller, a semi-auto rifle firing a .223 Remington cartridge is an unusual and dangerous weapon.

    1. Yes, one of the most popular and widely used sporting rifles is “unusual”.

      When is someone going to challenge the ban on short barreled shotguns (or full autos, but that seems less likely to get anywhere)? They are clearly very useful for home defense.

    2. I only own four, how common can they be?

  11. “It is altogether fair,” Wilkinson wrote, “to argue that the assault weapons here should be less regulated, but that is for the people of Maryland (and the Virginias and the Carolinas) to decide.”

    I thought they already did decide when they enacted the relevant provisions of their state’s & US constitutions.

  12. Doesn’t the Constitution place certain rights beyond the reach of lawmakers,

    Weren’t they all put there by lawmakers? If enacting a constitution isn’t making law, what is?

  13. Ok, by Wilkinson’s reasoning if the State of Maryland [or any other] decides democratically to subject a class of persons to slavery, the court would be wrong to interfere with such a democratic process?

    Or, some things warrant constitutional protection, but not others, according to a judges whim?

  14. Would be very disappointed if my “assault rifle” was not dangerous. As for war, the militia is ready…

    1. Buyers market right now. Just put together a new AR, truly a thing of dark beauty.

  15. Cuckservative legal theory:
    We don’t believe in exercising our power. But don’t worry! We’ll nobly whine loudly as the Left exercises their power and crushes your rights.
    Now follow legal precedent and bake the damn cake or we’ll be forced to throw you in prison.

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