J. Harvie Wilkinson, a veteran judge on the federal appeals court in Richmond, Virginia, is no liberal firebrand. The Reagan appointee, once floated as a potential nominee for the nation’s highest court, is widely respected in conservative legal circles — as chief judge of the Fourth Circuit, he wrote the opinion, in the wake of the September 11 attacks, holding that an American citizen detained as an “enemy combatant” had no constitutional right to challenge that designation. The Supreme Court later reversed him.
One area where Wilkinson and dozens of federal judges haven’t been reversed in the past decade or so is on the proper scope of the Second Amendment right to keep and bear arms. If these judges somehow had a say in the gun-policy debate, or if their legal opinions were a blueprint to chart the path forward, they’d probably tell Parkland student activists and the millions across America desiring stricter gun laws that the Constitution is no impediment to reform. In fact, they might even say that all-out bans on assault-style weapons — the kind accused gunman Nikolas Cruz used in his rampage at Marjory Stoneman Douglas High School in Florida — are perfectly in harmony with the law as it exists today. No need to wait for a broken Congress or an apathetic president to do something. States and localities can lead the way today. And they have.
Chalk it up to one of the most controversial, if inconclusive, Supreme Court decisions of all time. In 2008, Justice Antonin Scalia led a five-justice majority to recognize, for the first time in American history, that “law-abiding, responsible citizens” have a right to own a handgun “in defense of hearth and home.” But Scalia’s own opinion in District of Columbia v. Heller — his greatest originalist achievement, in the view of many — left ample room for the regulation of firearms. In a passage that has become a thorn in the side of gun-rights enthusiasts, Scalia warned that people shouldn’t read too much into the fundamental right that he had just helped announce. Among other caveats and restrictions, Scalia wrote, “long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” were still fair game.
A number of states and localities took Scalia at his word. In the wake of the Sandy Hook Elementary School massacre in Newtown, Connecticut, legislators there and in New York sprang to action and passed stringent bans on assault-style rifles and high-capacity magazines — the very kind Adam Lanza, the school shooter, had in his possession at the time of the rampage. The statutory schemes were broad, defining “assault weapons” as any semiautomatic rifle with at least one “military-style feature” — a definition that rendered the arsenal of prohibited weapons decidedly large. In Connecticut, the ban singled out 183 specific firearms by make and model. Court challenges were of no use. Both laws survived judicial scrutiny, and the Supreme Court didn’t bother reviewing the statutes’ constitutionality. In a one-line order, the court refused to add the case to its docket.
This is where Wilkinson’s voice becomes instructive. When Maryland enacted its own sweeping set of gun-control measures in response to Sandy Hook and other tragedies, gun-rights activists quickly went to court to challenge them. For a moment, the groups got lucky — a split three-judge panel declared that AR-15s and similar firearms were entitled to the same level of protections handguns received in Heller. But the rest of the Fourth Circuit, where the case landed, wasn’t going to let that panel have the last word. The full court, 14 judges in all, reconsidered the ruling and ended up reversing course, declaring that the right to bear arms doesn’t extend to firearms that otherwise belong in the battlefield. “Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage,” U.S. Circuit Judge Robert King wrote in the decision. Weapons of war.
Breaking with the court’s conservative coalition, which dissented from the ruling, Wilkinson praised King’s majority opinion to the high heavens. But he also offered one of the most cogent and thoughtful explanations for why gun control — Heller notwithstanding — rightfully belongs with the people and their representatives. In a concurring opinion, he wrote:
Disenfranchising the American people on this life and death subject would be the gravest and most serious of steps. It is their community, not ours. It is their safety, not ours. It is their lives, not ours. To say in the wake of so many mass shootings in so many localities across this country that the people themselves are now to be rendered newly powerless, that all they can do is stand by and watch as federal courts design their destiny — this would deliver a body blow to democracy as we have known it since the very founding of this nation.
Perhaps taking cues from Wilkinson and his colleagues, the Supreme Court again didn’t bother with the Maryland ban and left the ruling in place. And so it has been for the past decade or so. Over the supplications of the National Rifle Association and others who have implored the court to revisit Heller, the court has refused, time and again, to clarify its contours. Could it be that there’s nothing to clarify? Just last week, the Supreme Court declined an invitation to review a California law that imposes a ten-day waiting period before an individual may purchase a firearm. The justices didn’t explain why the case didn’t interest them — maybe the Parkland school shooting in Florida was on their minds — and so it fell to Justice Clarence Thomas to be the lonesome voice crying out in the wilderness. “The right to keep and bear arms is apparently this Court’s constitutional orphan,” Thomas lamented in a 14-page dissent that not even Justice Neil Gorsuch dared join. “And the lower courts seem to have gotten the message.”
Indeed, they have. Or maybe, like Judge Wilkinson, they’ve recognized that regulating firearms that destroy bodies in ways that handguns never will rightly belongs with policymakers and those who elect them. “Leaving the question of assault weapons bans to legislative competence preserves the latitude that representative governments enjoy in responding to changes in facts on the ground,” Wilkinson wrote. Public support for these laws, according to the latest Quinnipiac poll, is already on the up and up. When Stoneman Douglas student Emma Gonzalez confronted Dana Loesch, the NRA spokesperson, at last week’s CNN town hall on gun control, she asked her if “it should be harder to obtain these semiautomatic weapons and modifications to make them fully automatic.” But she might as well have asked her if there are any barriers to enacting these measures. If Loesch and allies who believe the Second Amendment is sacrosanct have been following the state of the law, the answer is unequivocal. Both at the state and federal levels, the only barrier is political, not constitutional.