Scalia’s Concurrence

I was a little worried when I saw Scalia authored a separate opinion. I think Justice Scalia’s concurring opinion is pretty much summed up thusly by his own words:

I write separately only to respond to some aspects of JUSTICE STEVENS’ dissent. Not that aspect which dis­ agrees with the majority’s application of our precedents to this case, which is fully covered by the Court’s opinion.

In other words, he didn’t want Justice Alito to have all the fun, and wanted to take some separate shots at Stevens. And that he does, first by attacking his proposed incorporation philosophy as it pertains to other issues:

JUSTICE STEVENS proceeds to urge readoption of the theory of incorporation articulated in Palko v. Connecticut, 302 U. S. 319, 325 (1937), see post, at 14–20. But in fact he does not favor application of that theory at all. For whether Palko requires only that “a fair and enlightened system of justice would be impossible without” the right sought to be incorporated, 302 U. S., at 325, or requires in addition that the right be rooted in the “traditions and conscience of our people,” ibid. (internal quotation marks omitted), many of the rights JUSTICE STEVENS thinks are incorporated could not pass muster under either test: abortion, post, at 7 (citing Planned Parenthood of South- eastern Pa. v. Casey, 505 U. S. 833, 847 (1992)); homosex­ ual sodomy, post, at 16 (citing Lawrence v. Texas, 539 U. S. 558, 572 (2003)); the right to have excluded from criminal trials evidence obtained in violation of the Fourth Amendment[…]

That JUSTICE STEVENS is not applying any version of Palko is clear from comparing, on the one hand, the rights he believes are covered, with, on the other hand, his con­ clusion that the right to keep and bear arms is not cov­ ered. Rights that pass his test include not just those “relating to marriage, procreation, contraception, family relationships, and child rearing and education,” but also rights against “[g]overnment action that shocks the conscience, pointlessly infringes settled expectations, tres­ passes into sensitive private realms or life choices without adequate justification, [or] perpetrates gross injustice.” Post, at 23 (internal quotation marks omitted). Not all such rights are in, however, since only “some fundamental aspects of personhood, dignity, and the like” are protected, post, at 24 (emphasis added). 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,”

Scalia here is accusing Stevens of bringing his personal opinions to the table without having any legal justification for why things are to be this way. He continues:

I can find no other explanation for such certitude except that JUSTICE STEVENS, despite his forswearing of “personal and private notions,” post, at 21 (internal quotation marks omitted), deeply believes it should be out.


JUSTICE STEVENS resists this description, insisting that his approach provides plenty of “guideposts” and “con­ straints” to keep courts from “injecting excessive subjectiv­ ity” into the process.3 Post, at 21. Plenty indeed—and that alone is a problem. The ability of omnidirectional guideposts to constrain is inversely proportional to their number. But even individually, each lodestar or limitation he lists either is incapable of restraining judicial whimsy or cannot be squared with the precedents he seeks to preserve. […]

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. […]

JUSTICE STEVENS also argues that requiring courts to show “respect for the democratic process” should serve as a constraint. Post, at 23. That is true, but JUSTICE STEVENS would have them show respect in an extraordi­ nary manner. In his view, if a right “is already being given careful consideration in, and subjected to ongoing calibration by, the States, judicial enforcement may not be appropriate.” Ibid. In other words, a right, such as the right to keep and bear arms, that has long been recognized but on which the States are considering restrictions, ap­ parently deserves less protection, while a privilege the political branches (instruments of the democratic process) have withheld entirely and continue to withhold, deserves more. That topsy-turvy approach conveniently accom­ plishes the objective of ensuring that the rights this Court held protected in Casey, Lawrence, and other such cases fit the theory—but at the cost of insulting rather than re­ specting the democratic process.

I just have a picture in my head of Machine Gun Sammy standing over a bound copy of Steven’s dissent with a Thompson M1 submachine gun, with Scalia taking it from him saying, “Give that thing to me, there’s still a few pages in that thing that aren’t quite thoroughly shredded.”

JUSTICE STEVENS must there­ fore have in mind some other use for the careful­ description requirement—perhaps just as a means of ensuring that courts “procee[d] slowly and incrementally,” post, at 25. But that could be achieved just as well by having them draft their opinions in longhand.4

Brutal. He goes into Steven’s assertions on Second Amendment incorporation next:

JUSTICE STEVENS begins with the odd assertion that “firearms have a fundamentally ambivalent relationship to liberty,” since sometimes they are used to cause (or sometimes accidentally produce) injury to others. Post, at 35. The source of the rule that only nonambivalent liber­ ties deserve Due Process protection is never explained— proof that judges applying JUSTICE STEVENS’ approach can add new elements to the test as they see fit. The criterion, moreover, is inherently manipulable. Surely JUSTICE STEVENS does not mean that the Clause covers only rights that have zero harmful effect on anyone. Otherwise even the First Amendment is out. Maybe what he means is that the right to keep and bear arms imposes too great a risk to others’ physical well-being. But as the plurality explains, ante, at 35–36, other rights we have already held incorporated pose similarly substantial risks to public safety. In all events, JUSTICE STEVENS supplies neither a standard for how severe the impairment on others’ liberty must be for a right to be disqualified, nor (of course) any method of measuring the severity.JUSTICE STEVENS next suggests that the Second Amendment right is not fundamental because it is “differ­ ent in kind” from other rights we have recognized. Post, at 37. 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.”6 Post, at 37–38. Who says? Deciding what is essential to an enlightened, liberty-filled life is an inherently political, moral judgment—the an­ tithesis of an objective approach that reaches conclusions by applying neutral rules to verifiable evidence.

That’s pretty good in and of itself, but it gets better:

No determination of what rights the Constitution of the United States covers would be complete, of course, without a survey of what other countries do. Post, at 40–41. When it comes to guns, JUSTICE STEVENS explains, our Nation is already an outlier among “advanced democracies”; not even our “oldest allies” protect as robust a right as we do, and we should not widen the gap. Ibid. Never mind that he explains neither which countries qualify as “advanced democracies” nor why others are irrelevant. For there is an even clearer indication that this criterion lets judges pick which rights States must respect and those they can ignore: As the plurality shows, ante, at 34–35, and nn. 28– 29, this follow-the-foreign-crowd requirement would fore close rights that we have held (and JUSTICE STEVENS accepts) are incorporated, but that other “advanced” na­ tions do not recognize—from the exclusionary rule to the Establishment Clause. A judge applying JUSTICE STEVENS’ approach must either throw all of those rights overboard or, as cases JUSTICE STEVENS approves have done in considering unenumerated rights, simply ignore foreign law when it undermines the desired conclusion, see, e.g., Casey, 505 U. S. 833 (making no mention of foreign law).

Yesterday I went to my dad’s, and took the smoker so I could smoke some ribs. I used hickory chunks because I wanted the deep smokey flavor they provide. Next time perhaps I need to try to use Justice Scalia’s opinion here to see what flavor his piercing and witty sarcasm conveys to the meat. I think it would be delicious.

JUSTICE STEVENS’ final reason for rejecting incorporation of the Second Amendment reveals, more clearly than any of the others, the game that is afoot. Assuming that there is a “plausible constitutional basis” for holding that the right to keep and bear arms is incorporated, he asserts that we ought not to do so for prudential reasons. Post, at 47. Even if we had the authority to withhold rights that are within the Constitution’s command (and we assuredly do not), two of the reasons JUSTICE STEVENS gives for abstention show just how much power he would hand to judges. The States’ “right to experiment” with solutions to the problem of gun violence, he says, is at its apex here because “the best solution is far from clear.” Post, at 47– 48 (internal quotation marks omitted). That is true of most serious social problems—whether, for example, “the best solution” for rampant crime is to admit confessions unless they are affirmatively shown to have been coerced, but see Miranda v. Arizona, 384 U.S. 436, 444–445 (1966), or to permit jurors to impose the death penalty without a requirement that they be free to consider “any relevant mitigating factor,” see Eddings v. Oklahoma, 455 U. S. 104, 112 (1982), which in turn leads to the conclusion that defense counsel has provided inadequate defense if he has not conducted a “reasonable investigation” into potentially mitigating factors, see, e.g., Wiggins v. Smith, 539 U. S. 510, 534 (2003), inquiry into which question tends to destroy any prospect of prompt justice, see, e.g., Wong v. Belmontes, 558 U. S. ___ (2009) (per curiam) (reversing grant of habeas relief for sentencing on a crime committed in 1981). The obviousness of the optimal answer is in the eye of the beholder. The implication of JUSTICE STEVENS’ call for abstention is that if We The Court conclude that They The People’s answers to a problem are silly, we are free to “interven[e],” post, at 47, but if we too are uncertain of the right answer, or merely think the States may be on to something, we can loosen the leash.

My basic conclusion is that Scalia clearly did not believe the majority opinion savaged Justice Stevens enough, and he wanted to make sure his opinion is thoroughly skewered.

11 thoughts on “Scalia’s Concurrence”

  1. I wish Stevens had retired during the Bush years when it started showing that he was senile — see his opinion in Johnson v. California (2005) where he insinuated that interracial rape and ethnic-gang violence in prisons is a “valuable-cross cultural experience” for inmates.


  2. And I thought the SAF’s press release was all filled with WIN.

    “:Gottlieb concluded. “Today, it feels great to be the most effective community organizer Chicago has ever had.”

    I’ve just finished reading the entire ruling and opinions, and Scalia’s opinion had me chuckling in my office for a good 5 minutes. This is filled with WIN supported by a boatload of awesomness.

  3. Wow.

    So, as I suspected, Justice Stevens once again opined that rights are only such if no government authority decides to strip them away. So my town’s animal-control officer would be fine if he decided that my house was in his way and pulled it down?

  4. As a couple other people have noted; that was basically a no-holds-barred fisking of Justice Stevens’ opinion in the style of a blogger. I don’t know that Scalia is going to stay on Stevens’ Christmas card list…

Comments are closed.