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Decision upholding former ban on guns in US parks

US v. Masciandaro, decided yesterday by the 4th Circuit. The court first decides that the prosecution survives the change to park regulations, and then considers the Second Amendment, with the judges splitting. The majority opinion, you could call it, just concludes that application of Heller outside the home is unsettled: a "considerable degree of uncertainty remains as to the scope of that right beyond the home and the standards for determining whether and how the right can be burdened by governmental regulation." It applies intermediate scrutiny, and upholds the statute.

Judge Niemeyer separately concludes that the right extends outside the home -- otherwise the Heller opinion wouldn't have had to talk about "sensitive places."

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."

Josh Blackman, from whom I got the citation, has extensive thoughts on the case, here.

"First, Wilkinson’s paramount concern is for the role of “popular governance,” or as he put it in his article, the “democratic processes.” The Courts serve as an “impenetrable bulwark” against the elected branches to preserve Constitutional rights from the constraints of majorities. Second, Wilkinson speaks directly to social cost–or as he phrases it, “unspeakably tragic act of mayhem.” Wilkinson only focuses on the cost of one side of the equation, and ignores the cost, and therefore the liberty interests of the accused in this case. This one-sided analysis is a direct result of the weak analysis derived from Heller. Third, I cannot help but think the comment about “danger” in the “public square” was, at least in some respects, animated by the recent Tucson tragedy. Fourth, in conclusion, Wilkinson praises a “course of simple caution.” Caution is always prudent. But unilateral restraint is a far cry from “simple caution.”

Personally, two observations. (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.

· Heller aftermath