Writing in the Washington Examiner, legal scholars Josh Blackman and Ilya Shapiro wonder if Justice Antonin Scalia will abandon originalism when it comes time to finally decide McDonald v. Chicago:
The Court could take two possible routes, both under the Fourteenth Amendment, to apply, or “incorporate,” the Second Amendment right against the states: the Due Process Clause and the Privileges or Immunities Clause.
Scalia has long crusaded against the former, which encompasses the “substantive due process” doctrine. To Scalia, this doctrine—which has protected rights based on alleged constitutional “penumbras and emanations”—embodies the judicial activism that is the bane of his jurisprudence.
Scalia has attacked substantive due process as an “atrocity,” an “oxymoron,” “babble,” and a “mere springboard for judicial lawmaking.”...
Given Scalia’s epic enmity for substantive due process, why would he now turn his back on decades of his own hard labors and suddenly endorse the controversial doctrine? In his own words, because it is “easier.”