Scalia's self-contracition

Brave attempt to charge Scalia of incoherence if not hypocracy. The flaw is that the case revolves not around the pre-1800 Constitution or the scope of the right in question but the scope of the Court's authority. The scope of the Court's authority is prescribed by Congress and has never, NEVER, extended to enemy combatants in the 800 year history of the writ (with a couple of 20th century marginal exceptions). If one concedes at the outset that the Court deals with anything it wants to then the similarities exist. But even then, note how weak the similarities are. If they are similar on the grounds that they involve the pre-1800 Constitution (a telling phrase right that--was there a later one written that our history books pass over? Don't answer that, Justice Kennedy). And what Supreme Court cases do not involve the scope of a right? Finally, Wasn't the 2nd amendment case about the very existence of the 2nd Amendment right?

clipped from www.prospect.org The gun case and the Guantánamo litigation in fact have much in common. Both concern governmental efforts to deal with a risk of deadly violence. Both involve interpretations of the pre-1800 Constitution: the Suspension Clause of the 1789 document, and the Second Amendment of the 1791 Bill of Rights. And in both the Court had to decide a novel question about the scope of the right in question.