Wall Street Journal: 

Justice Scalia shreds the collective interpretation as a matter of both common law and Constitutional history. He writes that the Founders, as well as nearly all Constitutional scholars over the decades, believed in the individual right. Many Supreme Court opinions invoke the Founders, but this one is refreshing in its resort to first American principles and its affirmation of a basic liberty. It’s not too much to say that Heller is every bit as important to the Second Amendment as Near v. Minnesota (prior restraint) or N.Y. Times v. Sullivan (libel) are to the First Amendment.

Which makes it all the more troubling that no less than four Justices were willing to explain this right away. These are the same four liberal Justices who routinely invoke the “right to privacy” – which is nowhere in the text of the Constitution – as a justification for asserting various social rights. Yet in his dissent, Justice John Paul Stevens argues that a right to bear arms that is plainly in the text adheres to an individual only if he is sanctioned by government.

Justice Breyer, who wrote a companion dissent, takes a more devious tack. He wants to establish an “interest-balancing test” to weigh the Constitutionality of particular restrictions on gun ownership. This balancing test is best understood as a roadmap for vitiating the practical effects of Heller going forward.

Using Justice Breyer’s “test,” judges could accept the existence of an individual right to bear arms in theory, while whittling it down to nothing by weighing that right against the interests of the government in preventing gun-related violence. Having set forth this supposedly neutral standard, Justice Breyer shows his policy hand by arguing that under this standard the interests of the District of Columbia would outweigh Mr. Heller’s interest in defending himself, and the ban should thus be upheld.

But as Justice Scalia writes, no other Constitutional right is subjected to this sort of interest-balancing. “The very enumeration of the right takes [it] out of the hands of government” – even the hands of Olympian judges like Stephen Breyer. “Like the First, [the Second Amendment] is the very product of an interest-balancing by the people – which Justice Breyer would now conduct for them anew.”

In that one sentence, Justice Scalia illuminates a main fault line on this current Supreme Court. The four liberals are far more willing to empower the government and judges to restrict individual liberty, save on matters of personal lifestyle (abortion, gay rights) or perhaps crime. The four conservatives are far more willing to defend individuals against government power – for example, in owning firearms, or private property (the 2005 Kelo case on eminent domain). Justice Anthony Kennedy swings both ways, and in Heller he sided with the people.

A President Obama would give us more Breyers, which is ironic, given that Leftists are always complaining about the government intruding on their civil liberties.