Supreme Court

Republican-Appointed Judge Backs Gun Control Law, Says 'Firearms Regulation Requires Ample Deference' from Courts

Is gun control a political thicket that unelected judges should not enter?

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"The Second Amendment erects some absolute barriers that no gun law may breach." So wrote Judge Thomas Griffith of the U.S. Court of Appeals for the District of Columbia Circuit this week in Wrenn v. District of Columbia. Griffith's opinion blocked the District from enforcing its strict rules governing the issuance of conceal-carry handgun permits. It was a notable win for Second Amendment advocates.

But the ruling was not unanimous. Writing in dissent, Judge Karen Henderson insisted that D.C.'s gun licensing scheme should be affirmed. According to Henderson, the principle of judicial deference demands nothing less.

"The nature of firearms regulation requires ample deference to the legislature," Henderson wrote. That "ample deference stems from the recognition that gun laws involve a 'complex and dynamic' issue implicating 'vast amounts of data' that the legislature is far better equipped to gather and analyze." The propriety of gun control regulation, she concluded, is a political question that should be solved exclusively by democratically accountable officials.

If Henderson's argument sounds familiar, that is because it so closely resembles a recent concurring opinion filed by Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the 4th Circuit. In Kolbe v. Hogan, Wilkinson joined the majority in upholding a state ban on "assault weapons" and detachable large-capacity magazines. Wilkinson did so, he explained, because 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."

Henderson and Wilkinson both believe that judges should tip the scales in favor of lawmakers in gun control cases. They favor this approach because they think judicial deference to majority rule should be the overriding interest in such disputes. They want the courts to butt out. As Wilkinson put it, if judges persist in overruling duly enacted gun laws, the end result will be to "empower the judiciary and leave Congress, the Executive, state legislatures, and everyone else on the sidelines."

Henderson and Wilkinson have something else in common. They are both Republican-appointed judges. Henderson was first named to the federal district court by President Ronald Reagan, then elevated to the D.C. Circuit by President George H.W. Bush. Wilkinson was put on the 4th Circuit by President Reagan.

Don't be surprised by those political affiliations. Judicial deference to majoritarian government has been a touchstone in Republican and conservative legal circles for decades. Chief Justice John Roberts clearly demonstrated that in 2012, when he upheld the constitutionality of Obamacare on the grounds that "it is not our job to protect the people from the consequences of their political choices."

Of course, other Republicans and conservatives (not to mention libertarians) believe that it is the job of the courts to deny certain political choices when those choices violate constitutional rights or exceed constitutional limits.

The one thing both sides can agree on is that the conflict over the role of the courts is not going away anytime soon.

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  1. According to Henderson, the principle of judicial deference demands nothing less.

    “Proving once again that a nut-less monkey could do my job.”

    1. What do you call a lawyer with an IQ of 50?

      “Your Honor”

  2. ample deference to the legislature?

    1. Who needs separation of powers when you got Nanny-State judges?

  3. This underscores a major hangup in constitutional law. The second amendment clearly says the Federal Government cannot impede the ability of individuals or the states to keep and bear arms.

    But the states clearly had the right to their own controls over citizens, independent of the Federal government and even going beyond what is allowed to the Feds. Until the 14th amendment.

    Then it was commonly held that all of the restrictions on the Feds were incorporated to the states as well. Except when they were not.

    So the first amendment applies to all states and is absolute – well, except for commercial speech for some reason.

    But not the second?

    Why exactly? What is the difference?

    It seems to be “because we think this is important”, not any particular written law or bit of the constitution or even a true legal theory. Just “applying the second amendment as written would be a disaster, so we are not going to do that.” Which kinda means the courts are acting in the same role that legislators are supposed to be acting – making policy decisions.

    So maybe they are right about that deference thing, in a roundabout way. If the courts are going to abdicate their responsibility to apply the constitution and laws as written (which would mean no restrictions on weapons of any kind), maybe they should just leave it all to the legislatures.

    Of course, they could just force everyone’s hand and apply the law as written.

    1. But the states clearly had the right to their own controls over citizens, independent of the Federal government and even going beyond what is allowed to the Feds. Until the 14th amendment.

      I know that’s the official line, but the 2nd doesn’t say “Congress shall make no law”

      I’m unclear as to how the 2nd didn’t restrain the states from the beginning

      1. I’m unclear as to how the 2nd didn’t restrain the states from the beginning

        Based on the wording, it didn’t. And based on the wording of 1A, 1A does not apply to the States even considering 14A. Though, all of the States have speech protection written in to their respective constitutions (i think).

        1. This is true. “Congress shall make no law” is definitely limited to the Federal government and its laws.

          The second amendment says “shall not be infringed”, which seems to imply “by anybody for any reason, ever.”

          So read literally, the second amendment didn’t need the 14th. That is, if “not infringed” means “not infringed”.

          1. That is the crux of the whole scam to separate limitations on federal power and state power.

            Federal power is absolutely limited by the Constitution and Bill of Rights.

            State power is limited by the Constitution, Bill of Rights, State Constitutions and state laws.

            The HUGE difference is that state’s duties are not enumerated in the Constitution like federal duties are. States can do anything not prohibited by the Constitution, their respective state Constitutions and state law.

            1. and that pesky Second Article of Ammendment clearly prohibits states from infringing upon our right to arms. Thus they cannot.

              Remember, anything not assigned to FedGov, nor prohibited to the states, is the business of the states.

    2. >>>(which would mean no restrictions on weapons of any kind)

      wouldn’t the abdication be permitting “the legislature” (genuflecting Karen Henderson) full access to restrictions?

    3. quote: The second amendment clearly says the Federal Government cannot impede the ability of individuals or the states to keep and bear arms.But the states clearly had the right to their own controls over citizens

      Not so at all. Remember, in that First, the Article begins with CONGRESS, specifically addressing the legislative body of the Federal Government. That leaves things like religion up to the states. Remember at that time, most of the Colo ies forming the Union each had their own “state religion”. Maryland was Roman Catholc, Pennsylvania Quaker, Massachussetts Congregationalist, etc.

      But when that Second was written, it was very different. It does NOT say Congress shall not infringe.. it simply and broadly states “shall not be infringed”. By anyone. In any way. For any reason. Of any part of that RIGHT to arms. Thus as each state ratified theConstitution, they each and all agreed that our right to arms shall not be infringed. Not by state, local, county, private, federal, international laws or rules or regulations. Thus it is incumbent upon EACH part of any government at any level to see to it our right to arms is NOT infringed. At all. Ever. In any way. At any time.

  4. “gun laws involve a ‘complex and dynamic’ issue implicating ‘vast amounts of data’ that the legislature is far better equipped to gather and analyze.”

    Because legislatures are well known for analyzing vast amounts of data…. Has this lady ever been near a legislative body? Making decision based on data is the last of their concerns.

    1. “If he can’t ignore facts, he has no business being a politician!”

      Yes, Prime Minister

  5. “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’s not adding to the list. it is literally the second item on the existing list.

  6. Judge Thomas Griffith wrote the opinion supporting the Second Amendment. Out of curiosity, who appointed him?

    1. Dubbya nominated him.

  7. “[Insert issue of choice]involve a ‘complex and dynamic’ issue implicating ‘vast amounts of data’ that the legislature is far better equipped to gather and analyze.”

    Issues:
    Same-sex marriage
    Transgender bathrooms
    Religious preferences
    Privacy concerns

  8. He’s right, actually. It does require complete deference. Because it has no Constitutional justification.

  9. Judge Backs Gun Control Law, Says ‘Firearms Regulation Requires Ample Deference’ from Courts

    Wrong. It requires ample deference to the constitution.

    The propriety of gun control regulation, she concluded, is a political question that should be solved exclusively by democratically accountable officials.

    Wrong again. The matter of arms is addressed in the founding document and legislation is to be judged against this. This is not a difficult concept. I wish judges would do their damned jobs.

    1. I really don’t know how she gets to this conclusion without rejecting the entire concept of judicial review. The Supreme Court settled that question a couple hundred years ago.

  10. I’m no lawyer, so there’s something I don’t understand: how did “judicial deference” get to be so sacred that it even overrides the Bill of Rights?

    1. When it allows you to avoid ownership of a shitty decision.

      1. More like it gets you the result you want.

        That’s all these arguments are. “I want X result, so I’ll justify it by argument Y”. Instead of “Argument Y is why X is the result.”

  11. “The nature of free speech regulation requires ample deference to the legislature,” Henderson wrote. That “ample deference stems from the recognition that free speech laws involve a ‘complex and dynamic’ issue implicating ‘vast amounts of data’ that the legislature is far better equipped to gather and analyze.” The propriety of speech control regulation, she concluded, is a political question that should be solved exclusively by democratically accountable officials.

    1. You could just as easily insert freedom of religion, of association, unreasonable searches and seizures…why should one of them be subject to “judicial restraint” and not others?

  12. recognition that gun laws involve a ‘complex and dynamic’ issue implicating ‘vast amounts of data’ that the legislature is far better equipped to gather and analyze.”

    Yeah, here is the total collection of all the data required to analyze the issue:
    “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.”

    1. This is exactly what I have such a hard time following.

      The constitution is a very simple document. It grants very limited powers to the federal government and it specifically says that anything beyond those limited powers is prohibited to the government (hence guaranteed to the people or the states).

      And if that weren’t enough, it goes further and specifically underlines a handful of rights that cannot be infringed.

      It isn’t ambiguous. The constitution clearly says the people have the right to keep and bear arms. Not “sometimes have a handgun, but only if it is on an approved list”. Not infringed means the feds have no say in whether Longtobefree gets to have .50 caliber gatling guns mounted on turrets on his house. Or heavy artillery.

      Not infringed is really succinct.

      Of course, nobody thinks that is a good idea these days. Longtobefree is nuts, and he’d definitely set off those 2,000 pound bombs. Probably in a school or something.

      So we just pretend that the plain english doesn’t mean what the words actually say. And instead of amending the constitution to allow for the power to regulate individual people’s armories, we just draw arbitrary and made-up lines at the whim of whoever can win office.

      And the entire point of writing and ratifying a constitution was so that we wouldn’t have arbitrary lines drawn at the whim of whoever can attain power.

      1. Of course, nobody thinks that is a good idea these days.

        I do.

        1. Unfortunately, only nobodies post on Reason.com

          1. Nobodies can cause some serious damage:

            https://en.wikipedia.org/wiki/Polyphemus

      2. The other argument given is the concept of ‘balancing rights’

        Back when the Constitution was ratified, that consideration for ‘balancing rights’ was in fact already made and they decided to balance it entirely in the favor of the individual by establishing an unambiguous prohibition on government engaging in such actions as would infringe on said rights.

        They knew full well how to write exceptions and procedures to be followed should it be deemed necessary to infringe on the enumerated rights. The 4th amendment for example says your person and property is to be free from unreasonable search except with a Warrant and probable cause.
        In the case of the 1st and 2nd, they wrote no such exceptions.

      3. but that two thousand pound bomb is outside the contemporary defintion of “arms” as understood at the time the Constitution was ratified. How many individuals do you know can singlehandedly transport and deply a one ton bomb?

      4. They can make all the laws they want about what we do with our arms, they just can’t come up with the prior restraint of us not keeping and bearing them.
        I can’t figure out how these legal-beagles, who would blanch at the idea of imposing a prior restraint in other legislation are so enamored with using it for something on which the Constitution is not silent.
        Having the .50 cal Gatling guns mounted is not a problem, it is once they are used in a manner prohibited by law that punishment could be allowed to be brought to bear.
        Because, if it comes down to rebellion against a tyrannical government, the only thing that will matter is what the winner decides is punishable .

  13. Deference to the constitution? Fuck that.

  14. “Henderson and Wilkinson both believe that judges should tip the scales in favor of lawmakers in gun control cases.”

    Unfortunately for them, the Constitution disagrees. 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.

    1. THANK YOU for printing the whole 2A. WTF do people think the Founders meant by the first 13 words? Are they a meaningless non-sequitor?? Does it represent a Founder’s brain fart? No. The Founders presumed that people would maintain their arms in a manner that comports with “A well regulated militia.” What that means today is anyone’s guess. Hence the political and legal clusterf&@k we keep experiencing. But I’m personally comfortable that it DOESN’T mean private citizens get to keep flamethrowers, bazookas, mortars, machine guns or thousand pound bombs.

      I wish someone could cogently explain why 52% of the 2A’s words get 100% of the attention. Isn’t every word in the constitution sacred? The “forgotten 13” must be there for a reason.

      1. Easy. SCOTUS said so in Heller.

        “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Pp. 2-53.

      2. It’s called a preamble and it sets out that the Founders weren’t talking about the use of arms for personal protection or for gathering food.
        It was all about the citizenry being in a position to take up arms in defense against tyranny and form those well regulated militias.
        If their arms were taken, as the British had tried to do, or in any way infringed, the forming of those militias would not have been possible.

  15. Judge Karen gives deference to the unwritten FYTW clause.

    Say it with me bitch,
    “…. Shall not be infringed”!

  16. If the DC Council re-instituted slavery, would J. Henderson defer to their judgement.
    It doesn’t matter who appointed her, she’s a moron.

  17. Karen Henderson dissents in every case that is decided in favor of 2A rights. In Parker v. D.C. (which later became the Heller case) she did so based on the theory that 2A says, “the security of a free State” and D.C. is not a state, therefor….

    That’s really all you need to know about her.

  18. My interpretation of the second amendment is that, it explicitly prohibits retards like Judge Karen and other bureaucrats from having any say in what arms I choose, and that it’s really none of their business.
    I don’t even see how sales tax on firearms, or even knives for that matter, is constitutional.

    “…….Shall not be infringed”!
    What could that possibly mean?

  19. The TRUTH about the “supremacy clause” – our Constitution does not delegate to the national government authority to restrict our arms, ammunition, regulate firearms dealers, do background checks, etc.

    https://publiushuldah.wordpress.com/ ?s=The+TRUTH+about+the+ “supremacy+clause

  20. shall not infringe….
    Let’s be clear: any government that tries to infringe upon the sacred right of self-defense is on the wrong side of history, on the wrong side of the Constitution, and on the wrong side of the Bible. And so is any preacher who promotes the infringement of that right. And that includes any priest or church..

  21. 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.”

  22. This is a classic example of why Bork and company have done vastly more to bring statism than Chomsky and company.

    Either you believe “The People” refers to 100% of the populace- including those who lost the election, or have too few friends to ever form a winning electoral coalition- or you believe it refers to the 51% (or 44%!) who elected the current doggerel, 49%(/56%) be damned.

    No coercive institution can EVER represent “The People”. NAP > Democracy.

  23. If judicial deference were applicable to enumerated rights, some state’s public school systems would still be segregated.

  24. “The nature of firearms regulation requires ample deference to the legislature,” Henderson wrote.

    Okay, Judge Henderson. You’re a federal judge, so let’s see where that standard gets you. Out of 50 state legislatures, 42 have determined that applicants shouldn’t have to “prove need” for a license, to be authorized to carry a self-defense handgun. That’s 84%. Indeed, 12 of those state legislatures have determined that people shouldn’t even have to have a license to be authorized to carry. That’s right, there are more states with unlicensed carry than have discretionary discriminatory license requirements.

    And yes, if any other U.S. licensing scheme produced the discriminatory results these “needs” tests do, you and every other judge would throw screaming hissy-fits and declare them blatantly unconstitutional.

  25. 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.”

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