Repeater
Regular Member
From the Fourth Circuit, this case was issued:
Decision upholding former ban on guns in US parks
As Hardy notes, and Josh Blackman explains, Wilkinson is obsessed with the alleged 'social cost' of construing infringed as it's supposed to be. As Wilkinson opines:
But it gets worse. Wilkinson prefers this issue be handled democratically; accordingly, your right of self-defense is determined by the tyranny of the majority. The social cost of doing otherwise would be too great -- think of the children:
In other words, better safe than sorry:
US v. Masciandaro
This mentality is a part of Neo-Conservative thinking. As Hardy observes:
Wilkinson's "reasoning" is worse than the GMU decision. Say, wonder what Cuccinelli thinks?
Decision upholding former ban on guns in US parks
As Hardy notes, and Josh Blackman explains, Wilkinson is obsessed with the alleged 'social cost' of construing infringed as it's supposed to be. As Wilkinson opines:
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.
But it gets worse. Wilkinson prefers this issue be handled democratically; accordingly, your right of self-defense is determined by the tyranny of the majority. The social cost of doing otherwise would be too great -- think of the children:
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.
In other words, better safe than sorry:
US v. Masciandaro
This mentality is a part of Neo-Conservative thinking. As Hardy observes:
(1) Judge Wilkinson's values derive from the 1980s, when Reagan conservativism saw "judicial restraint" (never strike a statute down) as a core of conservative thinking. I can't see where this is inherent to any variety (libertarian, social, or Burkean) conservativism; I think that approach is an artifact of those times, when conservatives generally got beat up in court. Their counter was legislation, and the counter to that was judicial challenges that struck down their measures. They came to see legislation as their tool and courts as the tools of their opponents.
(2) While courts are supposed to be impartial (and with judicial restraint should go neutrality, certainly), as Josh points out, there are underlying views here (firearms pose dangers with no offsetting benefits) that creep into the opinion.
Wilkinson's "reasoning" is worse than the GMU decision. Say, wonder what Cuccinelli thinks?