J. Harvie Wilkinson wants to ruin 'Heller'

Repeater · Mar 25, 2011

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:

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?

TFred · Mar 25, 2011

Judges Wilkinson and Duffy write separately, arguing that extending Heller outside the home should be left to the Supreme Court: 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."

This is one of the bigger doses of BS that I have read in a long time. Total buy-in to the anti-gun propaganda. It is unbelievable that supposedly intelligent judges can be so blind. Or corrupt.

AS IF such a ruling (which keeps any such prohibition in place) would have any influence at all on a criminal intent on committing an act of mayhem.

This is quite well beyond sad. It is angry.

TFred

Repeater · Mar 25, 2011

TFred said:
This is one of the bigger doses of BS that I have read in a long time. Total buy-in to the anti-gun propaganda. It is unbelievable that supposedly intelligent judges can be so blind. Or corrupt.

AS IF such a ruling (which keeps any such prohibition in place) would have any influence at all on a criminal intent on committing an act of mayhem.

This is quite well beyond sad. It is angry.

TFred

Eugene Volokh, who Wilkinson referred to, has a blog entry on this opinion. Some of the commenters understand the potentially grave implications:

If the courts continue to view gun possession as itself a dangerous activity instead of a constituional right, we will see a lot more of these decisions.

Volokh highlights a passage in the opinion that I missed -- it refers to you loading your gun:

While it is true that the need to load a firearm impinges on the need for armed self-defense, intermediate scrutiny does not require that a regulation be the least intrusive means of achieving the relevant government objective, or that there be no burden whatsoever on the individual right in question. Moreover, because the United States Park Police patrol Daingerfield Island, the Secretary could conclude that the need for armed self-defense is less acute there than in the context of one’s home.

Did Harvie graduate from law school? See how he writes impinge instead of infringe. What's his problem? Worse, because he supposes the Park police "patrol" (whatever that's supposed to mean) the vast acreage of the park, that somehow mitigates the "need" (he doesn't say "choice") for armed self-defense.

What a dangerous precedent for the Fourth Circuit.

swinokur · Mar 26, 2011

En Banq appeal possible?

OldCurlyWolf · Mar 26, 2011

swinokur said:
En Banq appeal possible?

I don't know about appeal, but how about impeachment and removal from office and straight to jail or the looney bin. One of the two is obviously needed. either for bribery or something similar or mental incompetence.

Dreamer · Mar 27, 2011

We need to remember what the Fourth Circuit is. This is the court that has pretty much defended the lawless, criminal, and sadistic actions of almost EVERY case of police brutality that has come up in MD, VA and DC over the last few decades. This is the court that has allowed the rampant corruption and brutality of the Baltimore PD, PG County, Howard County, and the various agencies in DC to continue to shoot the pets and family members of people in the wrong addresses in no-knock warrants, shoot innocent people in cases of mistaken identity, illegal and unethical searches of electronic devices, racial profiling, and on and on...

http://valawyersweekly.com/vlwblog/...aim-against-peeping-police-4th-circuit-rules/

http://circuit4.blogspot.com/2010/12/unrelated-police-misconduct-does-not.html

http://www.section1983blog.com/2009/09/fourth-circuit-upholds-dragnet-of-black.html

oldbanger · Apr 1, 2011

Repeater said:
Did Harvie graduate from law school? See how he writes impinge instead of infringe. What's his problem?

impinge (im-pinj) v.t. (foll. by on, upon, against) to fall or dash against; to touch on; to infringe...

Collins Universal Dictionary

Thundar · Apr 1, 2011

These Black Robed Miscreants Need a 2A Solution.

The part of the decision that where the three blind mice argue that he still had his right because he could carry unloaded was sickening. Not only is it twisted logic, but directly contradicts Heller, where the DC regulation that did not permit fully functioning rifles and shotguns was explicitly struck down.

The logic chain that these three use is missing many links. It is a pity that they hate freedom so much that they really appear to believe that there is a government interest in keping citizens unarmed, and stripped of a fundamental right because kids go there. Shame on them.

I think that these senseless, freedom robbing black robed statists really do need a 2A solution. Nothing violent, just an armed protest to let them know that we are tracking their anti liberty trajectory and remind them that there is a limit to their abuse of power.

J. Harvie Wilkinson wants to ruin 'Heller'

Repeater

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TFred

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swinokur

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OldCurlyWolf

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Dreamer

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