Law

Why Did a Conservative Judge Uphold an Assault Weapons Ban?

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In February, the U.S. Court of Appeals for the 4th Circuit dealt gun rights advocates a bitter defeat. In Kolbe v. Hogan, it upheld a Maryland law that bans "assault weapons" and detachable large-capacity magazines, holding that the Second Amendment offers no impediment to such prohibitory legislation. Among the judges who joined the 10–4 decision was J. Harvie Wilkinson III, who during the George W. Bush administration was rumored to be on the president's shortlist of Supreme Court candidates.

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. The matter boiled down to the core principle of judicial deference, he wrote: "It is altogether fair 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 get in the business of invalidating democratically enacted gun control measures, 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 he 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."

It was the classic case for judicial deference: 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. As recently as 20 years ago, Wilkinson's deferential stance would have placed him squarely within the mainstream of conservative legal thought.

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 federal courts to enforce those constitutional limits and strike down overreaching legislation, even when doing so means acting 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 take his side.

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  1. Procedures were followed. As long as you do it by the rules, the outcome doesn’t matter. The rules are all that matter.

  2. holding that the Second Amendment offers no impediment to such prohibitory legislation

    I know I’m no expert, but “the right of the people…shall not be infringed” seems to be a pretty clear impediment.

    1. “olding that the Second Amendment offers no impediment to such prohibitory legislation”

      Odd wording to the argument.

      Shouldn’t it be: “The prohibitory legislation offers no impediment to the Second Amendment”…. which of course is de facto false.

      1. I really wonder how these lawyers became judges if they fail at basic hierarchy of law.

        #1 Constitution
        #2 Supreme court case law
        #3 federal law/ treaties
        #4 federal case law
        #5 state law
        #6 state case law
        #7 local law

        And technically natural rights are supreme to the constitution but we are talking law here. Natural right to have children being one example and protect oneself.

        1. I really wonder how these lawyers became judges if they fail at basic hierarchy of law.

          Fundraising skillz.

    2. Sorry, but no.

      I mean, to the best of my knowledge, even in 1789, nobody thought prisoners couldn’t be disarmed, yet they are ‘the people’ and retain every other Constitutional right.

      So “infringement” obviously can’t mean “ever stopping anyone ever from having any gun ever”; we know from the entire point of the Amendment (and thankfully, post Heller also binding precedent) that “generally banning guns, especially ones of use for defense, militia service, or generally in common use” is an infringement.

      Between those two extremes, somewhere, lies the point where some law is “infringing”.

      It is not obvious from the plain text where that point is.

      Pretending it’s both obvious and “no gun laws ever” (not quite your point, but one I’ve seen advanced evidently seriously by people I have every reason to be serious 2A proponents, not Moby trolls) is … ineffective.

      (I completely agree that an “assault weapons ban” is an infringement, mind you.

      It’s just not a conclusion you can really reach by quoting the words and nothing else.)

      1. “even in 1789, nobody thought prisoners couldn’t be disarmed, yet they are ‘the people’ and retain every other Constitutional right.”

        Except they don’t retain every other Constitutional right.

        While they are prisoners they lose their rights to free speech and association.

        A guard does not need a warrant to search a prisoner’s “home”, person, possessions and papers (other than legal documents).

        1. his whole post makes no sense and lacks understanding of everything. History, logic, and so on. Its not even worth taking the 30 mins showing how retarded his post was.

  3. I’m not too sure about judicial deference when it protects legislation that directly infringes on basic rights. If the people, through their elected representatives, decided that things like the presumption of innocence and the right to a trial were old-fashioned, or they decided to set aside proscriptions against “cruel and unusual” punishment in order to bring back drawing and quartering — would that also be okay?

    Some people (and legislators) see the entire constitution as a hindrance that was drafted by old dead white guys some of whom owned slaves. What if they scrap the whole thing?

    1. As you say, the whole purpose of the BoR is to prevent majorities from just making legislation that strips away those protected rights. The Founding Fathers were fearful of that exact thing!

      This is just another judge in a list of judges who are traitors to the Constitution and try to make themselves feel better by giving government more power by using words like democratically enabled legislation.

      WE ARE A DEMOCRATIC REPUBLIC! For those stupid judges out there, that means that the constitution is a check to federal and state power. The states are a check to federal power and the fed is a check to state power. Mob rule should rarely be successful.

  4. Maryland was trying to circumvent the 2nd Amendment and this RINO judge allowed that.

    Its not invalidating democratically enabled gun control, its invalidating unconstitutional gun control legislation.

    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.

    It does not say, bear Arms but not large capacity magazine and not scary looking rifles.

    1. The real issue is that the Second Amendment was intended specifically to keep military grade firearms in the hands of the people. Indeed there is (if I recall correctly) case law saying that weapons that have no military use are not protected by the Amendment. That was the justification for upholding the federal laws restricting sawed off shotguns and rifles.

      The thing is, the Political Class really, REALLY don’t want to surrender to the idea that the Constitution and Amendments mean exactly what they say, because if that idea got popular they would suddenly be a lot less important. Which is their idea of hell on earth.

      1. US v. Miller, 307 U.S. 174 (1939)
        US v. Miller
        The US Government argued:
        (1) The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia. (2) The “double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230” was never used in any militia organization. (3) among other issues.

      2. Let me add another layer of “revealed stupid” in our gun laws.

        Miller’s “military use” justification was used to say why Miller should go to prison for his short shotgun.

        Problem is, short shotguns that aren’t his double barrel do have military uses, as do short barreled rifles (the M-4 has a barrel length of, what, 10.5″?), so even if we accept Miller as not overridden by Heller and common sense, his particular arm was of no particular military utility.

        But the real incoherence here is the National Firearms Act itself; it was meant to regulate handguns like machineguns still are; short-barreled shotguns and rifles were regulated identically (“because making a long arm like a pistol!”), and long arms left “free”.

        The NRA, in one of its first “activist” movements, got the handgun ban removed entirely.

        Problem is there is thus no rational justification for the “intermediate” length regulation on SBRs/SBSs; the Big Bad they were seen as resembling enough to demand punitive measures is completely unregulated by NFA provisions.

        Since laws don’t need to be rational, they thus remain subject to NFA rules, tax stamps, etc., until someone can get past Progressive hyperventilation about How Magically Deadly They Obviously Are Because Reasons and repeal that provision of the NFA.

        TL;DR: We’re why we can’t have nice things.

      3. Any weapon is lawful. Citizens owned everything before the government from explosives, rockets, bombs, repeating rifles, gattling cannons, artillery, and more.

        This notion was gun control is a 1900s idea.

        It was never an issue or thought to be an issue.

        Christ how dishonest people are never stops surprising me :/

  5. Judicial deference cannot die fast enough in my opinion.

    1. That and “living constitution”.

      That crap has gots-to-go!

      1. Better a living than a dead one!

        1. A “living constitution” means whatever those in power want it to mean. It was written explicitly to prevent a “tyranny of the majority,” albeit a democratic one, from trampling on inalienable rights as enumerated in the Bill of Rights.

          Rather than dead, the Constitution should serve as a bulwark in defending us.

  6. 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.”

    Exactly backwards. The whole idea of America is that there’s a short list of subjects on which your fellow citizens do have a say and as for the rest of them they can fuck right the hell off. It’s not up to the Court to ask where in the Constitution it says government cannot do such a thing, the burden of proof is on the government to show where in the Constitution it says that they may. Beat these judges with a stick and send them back to an eighth-grade civics class.

    1. As a judge, isn’t his duty to decide whether laws are consistent with the US Constitution? Funny, in my reading of the document I never found the words “judicial deference”.

  7. You know who else was democratically enacted?

    1. Not Hitler, but the Nazi Party was.

  8. The fact that this judge was on “W”‘s SCOTUS list proves his disdain for our Constitution. The president who brought us the Orwellian “Homeland Security” gang would absolutely have wanted this guy who believes our Constitution is negotiable. So if the people of Maryland had voted to re-instate slavery, would that have been OK too?

  9. I simply do not understand the concept of judicial deference. The rules are the fucking rules, and the judicial is supposed to ensure everyone follows them. If the legislature (or the people) decide they want to change the rules there is already a constitutional mechanism to make that happen–no judicial deference required.

    Instead of making the people vote to change clearly unconstitutional laws the judicial should make the people vote to amend the constitution if they want to change the rules. Why is this so hard to understand by supposedly smart, educated judges?

  10. “… shall not be abridged” is a mere suggestion. Why, the mob should be able to tar and feather anybody’s individual rights, because “deference”!

  11. doesn’t the Second Amendment itself suggest that there are some subjects on which democratic majorities should not have any meaningful say?

    No. The process of adopting & amending a constitution is meaningful say?very meaningful. I don’t get why judges don’t see it as part of democratic process. Ultimately it all boils down to people, it’s just a matter of how; we’re not ruled by machines or gods or other non-human nature, it’s humans all the way down.

  12. Why Did a Conservative Judge Uphold an Assault Weapons Ban?

    He’s an agent for the State.

    Need I say more?

  13. Judicial deference is a weird idea. Isn’t making sure the Legislator(s) toes the line of law the entire point of the Judiciary? I honestly can see arguments for letting a lot of stuff go – the constitution and related laws are intended to be and should remain the bedrock of US society, but it shouldn’t be a straight jacket either, working to prevent the natural and perhaps reasonable changes in culture and popular thought.

    I would also urge caution for anyone who wants to go “all in” on originalism or related concepts: similar to empowering a president when the president is on your side, empowering the judiciary implicitly relies on judges making the rulings you like. Obviously, it doesn’t always work out that way.

    1. If a judge accepts the idea of judicial deference then whats the purpose of the judge if he is just going to agree with everything the majority says?

      1. That sounds like a bit of an extreme characterization of judicial deference. I don’t think even it’s strongest supporters take it to mean that the legislator can do no wrong. I’m just saying that it strikes me as a weird bit of philosophy. Like, I can see the value in arriving at the same place that something like judicial deference brings someone, but the reasoning of judicial deference itself is odd.

  14. 2nd Amendment posts are like a Hit and Run intermezzo.

    Everybody (for once) argues the same way, cleansing and refreshing us for the battle ahead.

  15. “Judicial deference” is only another euphemism for “cowardice.”

  16. So if states want to limit free speech to those they disagree with or limit who can vote, that would be Judicial deference as well and thus okay?

    1. Let’s use the Mad Libs test that this judge apparently used to justify his ruling and see if it holds up.

      “It is altogether fair to argue that *Conservatives should be allowed to criticize the Muslim religion*, but that is for the people of *insert State or locality here* to decide.”

      Yep, this judge would be fine with it.

  17. New Yorks 1,000,000 new illegal gun owners..

    REFUSED TO REGISTER THEIR GUNS….
    One million plus new felons, all armed with scary, high capacity, media labeled assault weapons!

    The deadline for New York residents to register their so called “Assault Weapons” and “High” (read standard) Capacity Magazines came and went.

    An estimated million plus, formerly law abiding, gun owners have refused to comply with Cuomo and down state Democrat’s naive belief that the NY Safe Act, passed in a so called emergency session of the New York legislature, could force free people to register their hard earned property.

    And who can blame these once lawful gun owners, with a president that picks and chooses which laws he will follow or enforce, as well as an Federal Attorney General that operates daily with a Contempt of Congress charge and gun running scandal, “Fast & Furious”, hanging over his head. Why should the average New York joe, bother to follow the law, especially when it is in direct conflict with the Constitution of the United States, the one true law of the land.
    http://www.ammoland.com/2014/0…..un-owners/

  18. If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarcy. We just need strong statesmen as governors and legislatures to make that stand!

    In writing to William Jarvis, Jefferson said, “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”

  19. This judge is too cowardly to do his job. Being a judge requires that sometimes you need to be a check and balance against the other co-equal branches of government.

    Judicial deference is simply another term for judicial neglect.

    Are all unconstitutional laws OK with this judge simply because the electorate voted for the lawmakers that passed the laws?

    That’s the dumbest line of reasoning I think I’ve ever read and it undermines the ENTIRE point of the US Constitution.

  20. This judge is too cowardly to do his job. Being a judge requires that sometimes you need to be a check and balance against the other co-equal branches of government.

    Judicial deference is simply another term for judicial neglect.

    Are all unconstitutional laws OK with this judge simply because the electorate voted for the lawmakers that passed the laws?

    That’s the dumbest line of reasoning I think I’ve ever read and it undermines the ENTIRE point of the US Constitution.

  21. Just let the liberals shit on everything, since they voted for it, then. Why bother with a Constitution?

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