Justice Scalia on Enhanced Protection For “Core” Rights and the Second Amendment

In District of Columbia v. Heller, Justice Scalia wrote that the heart of the Second Amendment is “the core lawful purpose of self-defense” — the “right of law-abiding, responsible citizens to use arms in defense of hearth and home.”

Justice Breyer, in dissent, disputes this, and questioned “What is its basis for finding that to be the core of the Second Amendment right?”

Joseph Blocher in a leading article, argues that courts should identify the “core values” of the Second Amendment in order to develop a meaningful analytical framework.

What is the “core” of a right? And should that “core”–as opposed its penumbras–receive enhanced protections?

In Duryea v. Guarnieri, Justice Scalia’s solo dissent has a lengthy discussion of the “core” of a right.

The public-concern limitation makes sense in the context of the Speech Clause, because it is speech on mat-ters of public concern that lies “within the core of First Amendment protection.” Engquist v. Oregon Dept. of Agri-culture, 553 U. S. 591, 600 (2008). The Speech Clause“has its fullest and most urgent application to speech uttered during a campaign for political office.” Citizens United v. Federal Election Comm’n, 558 U. S. ___, ___ (2010) (slip op., at 23) (internal quotation marks omitted).

The unique protection granted to political speech is grounded in the history of the Speech Clause, which “was fashioned to assure unfettered interchange of ideas for thebringing about of political and social changes desired by the people.” Connick, supra, at 145 (internal quotation marks omitted). But the mere fact that we have a longstanding traditionof granting heightened protection to speech of public concern does not suggest that a “public concern” requirement should be written into other constitutional provisions. We would not say that religious proselytizing is entitled to more protection under the Free Exercise Clause than private religious worship because public proclamations are “core free exercise activity.” Nor would we say that the due process right to a neutral adjudicator is heightened inthe context of litigation of national importance because such litigation is somehow at the “core of the due process guarantee.” Likewise, given that petitions to redress private grievances were such a high proportion of petitions at the founding—a proportion that is infinitely higher if lawsuits are considered to be petitions—it is ahistorical to say that petitions on matters of public concern constitute “core petitioning activity.”

I am not sure if this section is directed at the Second Amendment, but I can’t help but think it will be cited in future discussions of the “core” of rights, and its relationship to history. In fact, I am not even sure which way this cuts. Scalia seems to be saying that rights at the “core” need not necessarily receive enhanced protection. This would suggest that Second Amendment rights at the “core” did not warrant heightened protection. Or, is he saying that because the historical pedigree is lacking, they are  not part of the “core,” whereas the right of self-defense identified in Heller is pre-existing, and thus could be core.

In fact, Justice Scalia actually cites Heller for this proposition, so I think this may be the best answer:

The reference to “the right of the people” indicates that thePetition Clause was intended to codify a pre-existing individual right, which means that we must look tohistorical practice to determine its scope. See District of Columbia v. Heller, 554 U. S. 570, 579, 592 (2008).

This case, at first glance, was rather blase, but the dissent opens up a whole new can of worms (not quite a Pandora’s Box) about reinvigorating a new clause of the Constitution. Chief Justice Roberts, Justice Alito seemed remiss to do this in McDonald with respect to the privileges or immunities clause. Here, it seems they are OK with reinvigorating the petition clause.

Cross-Posted at JoshBlackman.com.

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1 Response

  1. Brett Bellmore says:

    You don’t have to identify the “core” of a right if you’re planning on simply upholding the right, period. OTOH, if you’re planning on carving out a shopping list of exceptions, I suppose it’s important to identify in advance what part, if any, you’re going to leave intact when you’re done. That’s what I take from this: Scalia plans to leave a lot of the 2nd amendment on the floor by the time he puts down his carving knife.