"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.