The Other Part of Scalia’s Footnote 27 in Heller

August 15th, 2013

For years, scholars have poured over the correct form of scrutiny that should be applied to the Second Amendment. (I have dabbled with that question as well). Much of the attention has focused on Footnote 27:

Justice BREYER correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 2850-2851. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U.S. ___, ___, 128 S.Ct. 2146, 2153-2154, 2008 WL 2329768, *6-7, ___ L.Ed.2d ___ (2008). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments …”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.

Most attention seems to have been paid to the portions in blue. But the portions in red are even more interesting, and confounding. What the heck is Scalia saying here? Is rational basis review separate from  scrutiny under the Constitution (14th, or now 2nd Amendments)? That the rational basis test is not actually a function of due process?

The cited pages in Engquist, authored by Roberts, aren’t too helpful. In it, there is a discussion of Village of Willowbrook v. Olech–which  declined to assign a standard of review. This part may be relevant:

When those who appear similarly situated are nevertheless treated differently, the Equal Protection Clause requires at least a rational reason for the difference, to assure that all persons subject to legislation or regulation are indeed being “treated alike, under like circumstances and conditions.” Thus, when it appears that an individual is being singled out by the government, the specter of arbitrary classification is fairly raised, and the Equal Protection Clause requires a “rational basis for the difference in treatment.” Olech,528 U.S., at 564, 120 S.Ct. 1073.

But that seems to impute the rational basis requirement right into the 14th Amendment.

There’s also this paragraph from the Chief’s opinion that lacks any citation:

There are some forms of state action, however, which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases the rule that people should be “treated alike, under like circumstances and conditions” is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted. In such situations, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise.

Anyone have a clue what Scalia is saying? I don’t think I’ve seen that argument made anywhere else,  or anywhere since. Such an odd throwaway?