While the majority opinion argued at length with Justice Stevensâ€™ dissent on the text and history of the Second Amendment, the engagement with the Breyer dissent was shorter. Breyer wanted courts to perform an ad hoc balancing test on the merits of gun bans or gun controls, and he thought that there was enough social science in support of the handgun ban â€” although he conceded that there was a good deal of social science on other side, too â€” that the handgun ban should be upheld.
Justice Scalia accurately noted that the Breyer approach would negate the very decision to enact the Second Amendment: â€œWe know of no other enumerated constitutional right whose core protection has been subjected to a freestanding â€˜interest-balancingâ€™ approach. The very enumeration of the right takes out of the hands of government â€” even the Third Branch of Government â€” the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judgesâ€™ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.â€
And thus was Breyer exposed as the gun-grabbing, liberal-fascist hater of the Second Amendment and the right to keep and bear arms.