Last term in McDonald v. Chicago, Justice Scalia was willing to buy into substantive due process to protect the right to keep and bear arms. In McDonald, he wrote:
Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court’s incorpora- tion of certain guarantees in the Bill of Rights ‘‘because it is both long established and narrowly limited.’’ Albright v. Oli- ver, 510 U.S. 266, 275 (1994) (SCALIA, J., concurring). This case does not require me to reconsider that view, since straightforward application of settled doctrine suffices to decide it.89
Based on oral arguments today in NASA v. Nelson, it would seem that he has once again shunned substantive due process as ‘‘babble,’’ ‘‘usurpation,’’ and even an ‘‘atrocity,’’
JUSTICE SCALIA: Mr. Stormer, what provision of the Constitution are you relying — I looked at your table of authorities in your brief, and you have cases listed, you have statutes listed; there is not a single citation anywhere in your brief to a provision of the Constitution. What provision of the Constitution are you relying on.
MR. STORMER: It would mostly fall —
JUSTICE SCALIA: I think it’s a very nice thing that the Government shouldn’t ask intrusive questions. I also think that it’s a nice thing that the 6 Government should pay a living wage to its employees, 7 but I don’t feel authorized to go around saying how much 8 the Government should pay each of its employees because 9 there is nothing in the Constitution about that, and the 10 question is left to Congress. 11 What do you rely on in the Constitution that 12 enables me to decide how much intrusiveness is too much, 13 rather than leaving that to Congress?
MR. STORMER: It would flow from the ordered 15 concept of the liberty component of the Fifth Amendment, as well as the First —
JUSTICE SCALIA: The Fifth Amendment, okay. Which says no person shall be deprived of what?
19 MR. STORMER: Of life — I mean, no person 20 shall be deprived of due process of law, and then the 21 last — 22 23 24 the ordered 25
JUSTICE SCALIA: Due process of law.
MR. STORMER: — refers to the concept of, concept of liberty.
JUSTICE SCALIA: All right. That — that’s what I thought. You are talking about substantive due 2 process here. 3
MR. STORMER: Well, the Whalen case, the 4 Nixon case, and to some extent, the Reporters Committee 5 case refer to this concept of privacy. And they are, in 6 fact, vague, but they do talk about the concept of 7 privacy as being the right to control information about 8 oneself.
9 And — and both — and all of the —
10 JUSTICE SCALIA: I mean, I like that, but I 11 just don’t see it anywhere in the Constitution. That’s 12 all I’m taking about. 13
MR. STORMER: Well, I — there — those 14 cases, in fact, do not refer to a term called 15 “informational privacy.” Those terms have grown from 16 the various cases that have flown — flowed from the 17 determinations in Whalen and Nixon and, to some extent, 18 Reporters Committee.
Granted, the Second Amendment is enumerated in the Constitution, while the nebulous notion fo informational privacy is not. However, Scalia still had to rely on an expansive notion of “liberty” to find that Chicago could not enact their gun control ordinance.