Judge Wilkinson's critique of the Supreme Court's Heller decision, referenced by David below, should not be a surprise. Judge Wilkinson has always been uncomfortable invalidating legislative acts on constitutional grounds. To Judge Wilkinson, the proper exercise of "judicial restraint" requires an extreme reluctance to invalidate legislative acts. Unless compelled by precedent, Judge Wilkinson has typically preferred to defer to the "political" branches. He made this explicit in his concurrence to the en banc Fourth Circuit's decision in Brzonkala v. VPI, in which the court struck down portions of the Violence Against Women Act for exceeding the scope of the interstate commerce clause. In his view, the case was "especially difficult" because "it pits the obligation to preserve the values of our federal system against the imperative of judicial restraint." He added:
it is a grave judicial act to nullify a product of the democratic process. The hard question is whether our decision constitutes an indefensible example of contemporary judicial activism or a legitimate exercise in constitutional interpretation. Respect for the institutions of self-government requires us, in all but the rarest of cases, to defer to the actions of legislative bodies. In particular, "[t]he history of the judicial struggle to interpret the Commerce Clause ... counsels great restraint before [we] determine[ ] that the Clause is insufficient to support an exercise of the national power." Lopez, 514 U.S. at 568, 115 S.Ct. 1624 (Kennedy, J., concurring). I would add to that cautionary tale not only the judiciary's parallel experience with economic due process but also the activist legacy of the Warren and early Burger Courts. By considering today's decision in light of history's often cold assessment of the product of those prior eras, we may ascertain whether we forsake to our peril the high ground of judicial restraint.In this opinion, Wilkinson made explicit his unease with the Rehnquist court's federalism jurisprudence, an unease also demonstrated in his subsequent decision in Gibbs v. Babbitt, in which Wilkinson voted to uphold the application of the Endangered Species Act to activities that could harm red wolves in North Carolina -- a decision that prompted a scathing dissent by then-Judge Luttig, author of the court's Brzonkala decision.
Judge Wilkinson is from a generation of legal thinkers whose view of judicial review was defined in opposition to the Warren and Burger Courts. For some in this generation, the problem was that these courts were too quick to overrule the political branches on flimsy constitutional grounds. For others, the problem was that the Court was so willing to overrule the political branches at all. This is why some conservative judges and thinkers embraced the Rehnquist Court's federalism jurisprudence while others, including Judge Wilkinson, viewed it with such trepidation. Thus, while I find Judge Wilkinson's critique of Heller largely unconvincing, I do not believe it is a surprise.