Justice Scalia’s Heller Opinion Rejects His Own Precedent

Statement of Alliance for Justice President Nan Aron

June 26, 2008, Washington, DC -- "Once again, Justice Scalia's Originalism is proved to be little more than a convenient buzzword, rather than a consistent method of constitutional interpretation.  His latest opinion, in DC v. Heller, exposes Justice Scalia's hypocrisy and the results-oriented nature of his approach to the law.

"In Heller, Justice Scalia opines that the constitutional standard for determining what weapons are protected is based on an understanding of what is 'in common use at the time.'  Yet, just a few years earlier, Justice Scalia unleashed his acid pen on those of his colleagues who would use a similar approach in examining the constitutionality of executing children. The law, Justice Scalia maintained then, should be more 'than a snapshot of American public opinion at a particular point in time.'  Yet today, Justice Scalia introduced a radical new interpretation of the Second Amendment that is based on nothing more than a snapshot of American public opinion.

"Today's decision in Heller should come as no surprise to those who recognize that Justice Scalia and his conservative counterparts, for all of their professed deference to legislatures and precedent, are willing to reject even those precedents they penned themselves when it interferes with the policy results they seek."