In judging the justice's stances, most enigmatic may be that of Antonin Scalia, who wrote the majority opinion in the District of Columbia case.
In a 1997 book, "A Matter of Interpretation," Justice Scalia wrote that he viewed "the Second Amendment as a guarantee that the federal government would not interfere with the right of the people to keep and bear arms."
Yet, this next passage gives court watchers some pause. "Of course," Justice Scalia continued, "properly understood, it is no limitation upon arms control by the states."
Now a claim to the contrary—that the Second Amendment does limit arms control by the states—is pending. Justice Scalia declined to comment through a court spokeswoman.
Source:
http://online.wsj.com/article/SB10001424052748704269004575073771717464954.html?mod=WSJ_hps_MIDDLEThirdNewsThis actually concerns me. Many staunch conservatives don't like the 14th Amendment's "privileges" and "immunities" clause--they think it too open to interpretation, too unwieldy. They think it allows the creation of "new" rights.
The Framers of the 14th obviously thought differently. When they wrote the Amendment, they consciously resisted any attempts to define the "privileges" and "immunities" of the people--their rights. In fact they said that such a definition was impossible.
The Fourteenth Amendment does more than incorporate Amendments One through Eight of the Bill of Rights; it insists that no division of government anywhere in the United States may infringe on your undefined rights. Logically, you could bring suit under the Fourteenth Amendment's "privileges" and "immunities" if your city forbad, let's say, jumping jacks.
There are two ways of looking at things.
1) The government can meddle in any aspect of anyone's life, except as forbidden in the Constitution.
2) Individuals have the right to do whatever they please except that the government can legitimately limit their freedom using only those powers and affecting only those areas that are spelled out in the Constitution.
Of course I agree with the Framers. There are no "new" rights. We can dispense with all of the elaborate and tortured reasoning. Two men have the right to be lovers because government has no legitimate power to stop them. The same is true of your right to perform jumping jacks.
Will Scalia stand against personal freedom even if that limits gun rights? Will one or more liberal justices stand for personal freedom even if that means people have the right to keep and bear arms in every state? Will our latest justice actually follow the intent of the Fourteenth Amendment's authors as promised in her confirmation hearings?
This could be a lot more interesting than
Heller's 5-4 decision.