Why did a conservative judge uphold an assault weapons ban?

• Author: Root, Damon
• Position: LAW - J. Harvie Wilkinson III

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.

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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...