Justice Scalia’s Concurring Opinion

As most everyone probably already knows, in the predicted 5-4 ruling, the Supreme Court released it’s opinion this morning in the case of McDonald v The People’s Republic of Chicago, holding that the Second Amendment is incorporated against the States, basically declaring Chicago’s gun ban unconstitutional.

The entire decision (including concurring and dissenting opinions) can be downloaded here (pdf file).

Everyone and their cousin is going to be evaluation and commenting on the decision itself (the first 52 pages) and there is some good stuff in there, but I’m sure it will be adequately dissected by much smarter people than me.

What I wanted to comment upon was Justice Scalia’s concurring opinion, which wasn’t so much expressing concurrence with the majority, but is basically a fisking of Justice Stevens’ dissent.

Justice Stevens attempted to cloak his dissent in the garb of combating judicial activism. From his dissent:

Moreover, the suggestion that invigorating the Privileges or Immuni­ties Clause will reduce judicial discretion…strikes me as implausible, if not exactly backwards. “For the very reason that it has so long remained a clean slate, a revital­ized Privileges or Immunities Clause holds special hazards for judges who are mindful that their proper task is not to write their personal views of appropriate public policy into the Constitution.”

Justice Scalia basically threw the BS flag and commenced to issue a brutal, point by point smackdown. The whole thing is worth reading, but some of the juicier bits [citations and footnotes removed for brevity and readability -ed]:

Exactly what is covered is not clear. But whatever else is in, he knows that the right to keep and bear arms is out, despite its being as “deeply rooted in this Nation’s history and tradition” … as a right can be… I can find no other explanation for such certitude except that JUSTICE STEVENS, despite his forswearing of “personal and private notions,”… deeply believes it should be out.

The subjective nature of JUSTICE STEVENS’ standard is also apparent from his claim that it is the courts’ preroga­tive—indeed their duty—to update the Due Process Clause so that it encompasses new freedoms the Framers were too narrow-minded to imagine… Courts, he proclaims, must “do justice to [the Clause’s] urgent call and its open texture” by exercising the “interpretive discretion the latter embodies.”… (Why the people are not up to the task of deciding what new rights to protect, even though it is they who are authorized to make changes…is never ex­plained.) And it would be “judicial abdication” for a judge to “tur[n] his back” on his task of determining what the Fourteenth Amendment covers by “outsourc[ing]” the job to “historical sentiment,”…that is, by being guided by what the American people throughout our his­tory have thought. It is only we judges, exercising our “own reasoned judgment,”…who can be en­trusted with deciding the Due Process Clause’s scope— which rights serve the Amendment’s “central values,” …which basically means picking the rights we want to protect and discarding those we do not.

The idea that interpretive pluralism would reduce courts’ ability to impose their will on the ignorant masses is not merely naïve, but absurd. If there are no right answers, there are no wrong answers either.

He describes as “an important tool for guiding judicial discretion” “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society.”… I cannot say whether that sensitivity will really guide judges because I have no idea what it is. Is it some sixth sense instilled in judges when they ascend to the bench? Or does it mean judges are more constrained when they agonize about the cosmic conflict between liberty and its potentially harmful conse­quences?

If JUSTICE STEVENS’ account of the constraints of his approach did not demonstrate that they do not exist, his application of that approach to the case before us leaves no doubt. He offers several reasons for concluding that the Second Amendment right to keep and bear arms is not fundamental enough to be applied against the States. None is persuasive, but more pertinent to my purpose, each is either intrinsically indeterminate, would preclude incorporation of rights we have already held incorporated, or both. His approach therefore does nothing to stop a judge from arriving at any conclusion he sets out to reach.

JUSTICE STEVENS next suggests that the Second Amendment right is not fundamental because it is “differ­ent in kind” from other rights we have recognized… In one respect, of course, the right to keep and bear arms is different from some other rights we have held the Clause protects and he would recognize: It is deeply grounded in our nation’s history and tradition. But JUSTICE STEVENS has a different distinction in mind: Even though he does “not doubt for a moment that many Americans . . . see [firearms] as critical to their way of life as well as to their security,” he pronounces that owning a handgun is not “critical to leading a life of autonomy, dignity, or political equality.”… Who says? Deciding what is essential to an enlightened, liberty-filled life is an inherently political, moral judgment—the an­tithesis of an objective approach that reaches conclusions by applying neutral rules to verifiable evidence.

A second reason JUSTICE STEVENS says we should ab­stain is that the States have shown they are “capable” of protecting the right at issue, and if anything have pro­tected it too much… That reflects an assump­tion that judges can distinguish between a proper democ­ratic decision to leave things alone (which we should honor), and a case of democratic market failure (which we should step in to correct). I would not—and no judge should—presume to have that sort of omniscience, which seems to me far more “arrogant”…than confin­ing courts’ focus to our own national heritage.

After all, he notes, the people have been wrong before…and courts may conclude they are wrong in the future. JUSTICE STEVENS abhors a system in which “majorities or powerful interest groups always get their way”…but replaces it with a system in which unelected and life­ tenured judges always get their way. That such usurpa­tion is effected unabashedly…with “the judge’s cards . . . laid on the table,”…makes it even worse. In a vibrant democracy, usurpation should have to be accomplished in the dark. It is JUSTICE STEVENS’ ap­proach, not the Court’s, that puts democracy in peril.

Good, old fashioned, classic, in-your-face Judge Fight.


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