My favorite part of Heller is Justice Scalia’s devastating critique of Justice Breyer’s approach—a critique that is really valid against Breyer’s entire jurisprudence as articulated in his book Active Liberty:
Justice Breyer moves on to make a broad jurisprudential point: He...proposes, explicitly at least, none of the traditionally expressed levels [of scrutiny] (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests....” [He] arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. 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 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 too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which Justice Breyer would now conduct for them anew.
For more criticism of Breyer’s vague and judge-empowering “interest-based” approach, see my article, The Wolves And The Sheep of Constitutional Law and my friend Damien Schiff’s article Purposivism And The “Reasonable Legislator”: A Review Essay of Justice Stephen Breyer’s Active Liberty, 33 Wm. Mitchell L. Rev. 1081 (2007).
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