Why a Conservative Judge Upheld an Assault Weapons Ban

[johndoe3]

http://reason.com/archives/2017/06/15/w ... ve-judge-u

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?

Judge Wilkinson is just applying wrong-headed thinking in refusing to strike down the Maryland law banning so-called assault weapons and large capacity magazines. His legal error is applying unwarranted 'legal deference' to a State law which ignores the SCOTUS decisions in DC v. Heller (2008) and McDonald v. Chicago (2010).

Honoring States rights is a plausible legal theory and a good one; but in application a Judge needs to differentiate between overreaching State laws not affecting fundamental constitutional rights and those which do affect fundamental constitutional rights. To not do so is legally retarded, and that is Judge Wilkerson's mistake. We want the Courts to respect State's rights; but we also want the Courts to strike down State laws which diminish or take away our fundamental constitutional rights. So...Judicial Deference does have its place--when applied correctly.

Good article.

[fishman]

It baffles me when people make the 'state's rights' argument. A state has no power to override the rights given by the bill of rights.

What if some state decided to ban the right to a speedy trial, or the right to not have troops housed in your house, or the right to protest? That would not fly.

The bill of rights is pretty Damn clear. Either legally repeal the second amendment, or let citizens have militia-capable arms.

Another argument that makes no sense: "the second amendment doesn't give you the right to have military style weapons." THE WORD "MILITIA" IS IN THE SECOND AMENDMENT! Militias use military arms last time I checked.

[doubloon]

There are a number of things where I believe the State should prevail over the Fed but basic gun rights is not one of them.

[fishman]

Agreed