The Corner

The People v. The Judges

From Justice Scalia’s majority opinion in the gun case:

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach [responding to Justice Breyer’s proposal for a new standard for the right to possess a gun].  The very enumeration of the right takes out of the hands of government – even the Third Branch of Government – the power to decide on a case-by-case basis whether the right is really worth [his emphasis] insisting upon.  A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.  Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope is too broad.  We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie… Like the First, it is the very product of an interest-balancing by the people – which Justice Breyer would now conduct for them anew.

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