When the Constitution Come Face to Face With the Ballot Box

This article first appeared on Reason.com.

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.

Damon Root is a senior editor of Reason magazine and the author of Overruled: The Long War for Control of the U.S. Supreme Court (Palgrave Macmillan).