Please do not misunderstand my argument. I do not mean to say that Scalia should have flipped out like a ninja, done a somersault over the court building, and then flown off to defeat socialism, and that he's evil to refuse to do that. Naturally, the scope of Heller limited the judges to only resolving the issue that was at hand in the specific case. This isn't the argument that I'm making here. But he's actually decided to go beyond the scope of the case – not just deciding not to overthrow the NFA, which was never really going to happen but deciding to actually bloviate about how constitutionally awesome the NFA is.
The difference between the two men is even more evident in McDonald where Thomas goes for the Privileges and Immunities interpretation (probably more constitutionally correct) and Scalia goes for the less-disruptive intepretation.
This has little to do with conservatism vs. libertarianism. Both Clarence Thomas and Antonin Scalia are conservatives. I doubt there are any libertarians in the court except maybe when Gura is giving an oral argument.
When you use words like "evil" you run the risk of having your argument misunderstood.
I get what your saying, that you're angry about this:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”
You feel he didn't need to add that.
We have no idea of the realities he faced behind the scenes to get the majority, namely as many suspect, appeasing Justice Kennedy, as Scout points out. And as Thomas' P&I assent shows, all sorts of partial assents and dissents are possible if the justices are so inclined.
And many believe the part above in bold is a trap he laid, sandbagging himself and the appeasement verbiage he placed there intentionally. Justice Scalia knows full well that the test used of weapons "in common use at the time" under the Miller case that upheld NFA '34 was
military weaponry, (a short barreled shotgun not being on the ToE of the U.S. Military during the intra-war period, it would have been interesting had Miller been caught with a machine gun...) and that once the case reached the SCOTUS, there was no one there to make an argument on behalf of Miller.
Disagree with him politically or legally, the judges know every word they, or their clerks, write matters. And while he
appeared to say that the decision upholds existing prohibitions, he merely stated that nothing in Heller should be taken as an automatic voiding or the casting of doubt, of any gun control laws, or categories of "restricted persons" on the books to date. That's vastly different from saying it actually upholds them. And that Heller does nothing to bar the door to any future challenges.
He knew what he was doing.
