Judge J. Harvie Wilkinson on Judicial Restraint and the Second Amendment

March 24th, 2011

Judge Wilkinson wrote a very controversial article following Heller titled Of Guns, Abortions, and the Unraveling Rule of Law. Wilkinson praises judicial restraint, compares Heller to Roe, and challenges Heller as a judicial supremacy over the determinations of the elected branches. I, and others heartily criticized this piece. The crux of his article is that when the meaning of a right such as the Second Amendment is ambiguous, and the elected branches clash with an individual who seeks a different understanding of that right, any ties in interpretation should go to the democratic process. As Wilkinson wrote:

“When a constitutional question is so close, when conventional interpretive methods do not begin to decisively resolve the issue, the tie for many reasons should go to the side of deference to democratic processes.”

Or as I phrased it in the Constitutionality of Social Cost, any time “the question is close,” the government should win.

Assuming that the pros and cons of gun control are at equipoise—that is, that the evidence is not clear whether striking down this law will protect people’s liberty, or cause more violence—why need the tie go to the government, when there is an express protection of this liberty in the Bill of Rights? Judge J. Harvie Wilkinson frankly admits, any time “the question is close,” the government should win.

In today’s opinion in UNITED STATES v. MASCIANDARO (my analysis here), Judge Wilkinson issued a separate seriatim opinion that addresses many these same points. First, he notes that the Circuit Court should go no further in deciding the Second Amendment Issue, and rather wait for the Supreme to address it:

On the question of Heller’s applica- bility outside the home environment, we think it prudent to await direction from the Court itself. See Williams v. State, 10 A.3d 1167, 1177 (Md. 2011) (“If the Supreme Court, in [McDonald’s] dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.”); see also Sims v. United States, 963 A.2d 147, 150 (D.C. 2008).

There may or may not be a Second Amendment right in some places beyond the home, but we have no idea what those places are, what the criteria for selecting them should be, what sliding scales of scrutiny might apply to them, or any one of a number of other questions. It is not clear in what places public authorities may ban firearms altogether without shouldering the burdens of litigation. The notion that “self-defense has to take place wherever [a] person happens to be,” Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1515 (2009), appears to us to portend all sorts of litigation over schools, airports, parks, public thoroughfares, and various additional government facilities. And even that may not address the place of any right in a private facility where a public officer effects an arrest. The whole matter strikes us as a vast terra incognita that courts should enter only upon necessity and only then by small degree.

There is no such necessity here. We have no reason to expound on where the Heller right may or may not apply out- side the home because, as Judge Niemeyer ably explains, intermediate scrutiny of any burden on the alleged right would plainly lead the court to uphold the National Park Ser- vice regulation.

Second, Wilkinson turns to his praise for the constitutional avoidance cannon (a cannon that the Supreme Court applies unless it does not apply it).

The trend toward constitutional avoidance seems, finally, to be taking hold. Ashwander, at long last, is back. See Ash- wander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., con- curring). . . .  Sometimes saying a little less, rather than a little more, is a nice way to discharge our primary responsibility to the par- ties before us of deciding their case. At other times, of course, the need for clarity and guidance in future cases is paramount, but in this instance we believe the most respectful course is to await that guidance from the nation’s highest court. There simply is no need in this litigation to break ground that our superiors have not tread.

To the degree that we push the right beyond what the Supreme Court in Heller declared to be its origin, we circumscribe the scope of popular governance, move the action into court, and encourage litigation in contexts we cannot foresee. This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights. It is not far-fetched to think the Heller Court wished to leave open the possibility that such a danger would rise exponentially as one moved the right from the home to the public square.

If ever there was an occasion for restraint, this would seem to be it. There is much to be said for a course of simple caution.

Wilkinson’s comments play directly to a few points i made in the Constitutionality of Social Cost. First, Wilkinson’s paramount concern is for the role of “popular governance,” or as he put it in his article, the “democratic processes.” The Courts serve as an “impenetrable bulwark” against the elected branches to preserve Constitutional rights from the constraints of majorities. Second, Wilkinson speaks directly to social cost–or as he phrases it, “unspeakably tragic act of mayhem.” Wilkinson only focuses on the cost of one side of the equation, and ignores the cost, and therefore the liberty interests of the accused in this case. This one-sided analysis is a direct result of the weak analysis derived from Heller. Third, I cannot help but think the comment about “danger” in the “public square” was, at least in some respects, animated by the recent Tucson tragedy. Fourth, in conclusion, Wilkinson praises a “course of simple caution.” Caution is always prudent. But unilateral restraint is a far cry from “simple caution.”