The "irrational laws" clause of the Constitution (?)

[Humbach, Prof. John A.]

In Heller v. District of Columbia, Scalia wrote (at note 27 on 128 S. Ct. 2818):

"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. Or. Dep't of Agric., 553 U.S.    ,    , 2008 U.S. LEXIS 4705 (2008) (slip op., at 9-10). 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.... 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." (emphasis added).

Does anyone have any idea what Scalia is referring to? Where are those "separate constitutional prohibitions on irrational laws"? I'd like to think there are such things, but I can't say that I've ever seen them.

John A. Humbach, Professor of Law
Pace University School of Law
78 North Broadway
White Plains, New York 10603
Tel. 914-422-4239  -- jhumbach at law.pace.edu
personal homepage: humbach.net

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