Scalia unbound

Here's an observation from Dahlia Lithwick on the Heller decision (concluding that the Second Amendment guarantees an individual right to own a handgun):

But I must first pass along this rather brilliant observation from professor Stephen Wermiel from American University, who wonders why none of the dissenters cautioned the majority that today's decision"will almost certainly cause more Americans to be killed." (Boumediene,
Scalia, J. dissenting.)

Boumediene, of course, is the recent Guantanamo detainee habeas corpus case in which the majority saw fit to give people in American custody a day in American court. Scalia, in dissent, thought it important to accentuate the negative. There has been a lively discussion among Akron Law faculty, and DIck Aynes, John F. Seiberling Chair of Constitutional Law and Director of the Constitutional Law Center laid it out for me:

I do think this [issue of the deaths that will result from Heller] is addressed — albeit in a subdued manner– in Justice Breyer's dissent. The Court's web site numbers each of the dissents as beginning at p. one.

He notes the D.C. ord.  concerns handguns "which are specially linked to urban gun death and injuries…." (p. 2) On the same p. he notes that handguns are the overwhelming choice of criminals.

P 14: "No one doubts the constitutional importance of the statute's basic objective, saving lives." On the same p. he quotes a district committee's conclusion that the goal of the ordinance was to "reduce . . . run-related deaths…" The summary, with statistics about gun deaths, continues on the next several pages.

P. 24 talking about one amici submissions: "…suggests that, statistically speaking, the District's law has indeed had positive life-saving effects."

P. 26: concludes that the statute "seeks to further the sort of life-preserving and public-safety interest that the Court has called 'compelling.'"

P. 40: litigation over the details of what gun regulation can exist "threatens to leave cities without effective protection against gun violence. . ."

Breyer also cites the studies coming to a contrary conclusion. Ultimately, his position is that where the studies (& counter studies) conflict, the Court should defer the legislative body which is in a better position to judge local conditions than the court.  I suspect this view of the case "tied his hands" on what he though he could do from a rhetorical standpoint.

So because Breyer wants to make a point about judicial deference to the legislature, he puts his point delicately, whereas Scalia's hands are rhetorically untied (while blasting the Court for its lack of judicial deference to the executive).

Tagged as: Aynes, Boumediene, Breyer, Guantanamo, habeas corpus, Heller, Lithwick, Scalia, SCOTUS, Second Amendment, Wermiel