Anyway, I find your use of the term "penumbral" in regard to the right enunciated in Heller to be quite novel. This is because the term "penumbral" usually means coming from the shadow in an eclipse. The right enunciated in DC v. Heller comes from out of nowhere as Justice Stevens' dissenting opinion points out.
In fact, DC. V. Heller can be used for great mischief in the hands of crafty lawyers since it stands for pretty much a trashing of most legal principles. Even those held by Scalia himself!
For example stare decisis. Prior to Heller it was held that the Second Amendment right was to paraphrase US. v. Miller, 307 U.S. 174 (1939):
The entire text of the Second Amendment was made with the obvious purpose to assure the continuation and render possible the effectiveness of the forces created under authority of Article 1, Section 8, Clause 16. It must be interpreted and applied in consideration of that purpose. Without evidence that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' is reasonably related to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment of the body organised under Article 1, Section 8, Clause 16 of the Constitution or that its use and possession would contribute to the common defense.
The DC court of appeals reiterated that the Second Amendment was to ensure militia efficacy in Sandidge v. United States, 520 A.2d 1057, 1058 (D.C. 1987).
As Justice Stevens pointed out, one does not lightly overturn precedent. I will add especially when that precedent was unanimously decided as was US. v. Miller, 307 U.S. 174 (1939).
Likewise, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)offers the guidance in US Constitutional interpretation that:
Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.
It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.
and
The subsequent part of the section is mere surplusage -- is entirely without meaning -- if such is to be the construction.
The above quotes are not in order as they appear in the decision, but placed in such a way as to educate modern minds. The DC v. Heller decision stands for the principle that inconvenient language may be ignored.
To say that the right Scalia enunciated in DC v. Heller is penumbral would be akin to saying that if he suddenly decided that the Catholic Church was the State religion based upon the First Amendment would be penumbral. Not too far out a thought since his Heller decision has no historical or legal basis. What is to stop us from a mad judge doing the same with other rights? Or to quote the man himself:
If the courts are free to write the Constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. Antonin Scalia, Vigilante Justices: The Dying Constitution
Another aspect which should be frightening to lawyers is that DC v. Heller does not stand for the principle of equal justice before the law, but follows the "Golden Rule". That is, those with the gold make the rules. It is an open secret that the Heller litigation was bankrolled by the Cato Institute, a libertarian think tank with connections to big business: in particular Rupert Murdoch and Koch Industries; the largest privately owned company in the United States. Likewise, the Cato Institute is bankrolling the McDonald case as well.
If we consider that the cry of "no taxation without representation" did not refer to the taxation, but the lack of representation in the decision making process that led to the taxation, DC v. Heller engages in exactly what the founders considered tyranny. That is the interference in the local legislative process by unelected persons. In particular, those who are not local, such as the Cato Institute or the Supreme Court. Again, this proves that Scalia's decision is without merit.
Next we come to Judicial Certainty: Some of my original posts deal with the US v. Rybar decision, which was the decision that earned Justice Alito the monicker "Machinegun Sammy". Amazingly enough, the Rybar court followed the Civic right interpretation of the Second Amendment, yet Alito signed on to Heller.
Likewise, Justice Scalia claims to follow an "originalist" interpretation, which he claimed followed the exact intent of the founders. Scalia proved that his judicial style is more "original" than "orignalist". This means that the law is whatever the judge cares to make it without any real bother with historic, legal, or other constraints. In fact, it will be amusing to see how he rules on McDonald since I believe he has said before that the Second Amendment only applies to the Federal Government. Scalia has said that the doctrine of “incorporation,” which holds that the Bill of Rights applies to state governments via the Fourteenth Amendment, is a “mistake” and is “probably false” in a speech he made at the Hoover Institution.
So, I am not sure how one determines what and how Scalia will rule: which side of the bed he gets up on, whether the sun is shining, etcetera. We may see Justice Scalia contradict himself yet again. How does one appeal from an insane judge, or at least a seriously inconsistent one?
Does that sound penumbral to you?
