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Justice Scalia's concurring opinion in McDonald consumes one paragraph explaining why he joins the majority's opinion. Justice Scalia spends the next 14+ pages responding to Justice Stevens' dissent. On pages 13 and 14, Justice Scalia addresses Justice Stevens' "usual rejoinder of 'Living Constitution' advocates to the criticism that it empowers judges to eliminate or expand what the people have prescribed: The traditional, historically focused method, [Stevens] says, reposes discretion in judges as well." (p. 13) Justice Scalia acknowledges that historical analysis can require "nuanced judgments." (p. 14) But then Justice Scalia drops footnote 9: 

"That is not to say that every historical question on which there is room for debate is indeterminate, or that every question on which historians disagree is equally balanced ... For example, the historical analysis of the principal dissent in Heller is as valid as the Court's only in a two-dimensional world that conflates length and depth." 

Justice Scalia, of course, wrote the Court's opinion in Heller, and Justice Stevens the principal dissent. 

This editorial strikes me as quite disrespectful, to my ear characterizing Justice Stevens' Heller dissent as the work of a hack, or a bad term paper. I'm no historian of any kind, but I don't think I need to be to know that this comment is unfair, and certainly does not advance Justice Scalia's substantive points in his McDonald opinion. Perhaps Justice Scalia meant only to be witty and not mean-spirited. Perhaps Justice Scalia knows Justice Stevens well-enough to know that Justice Stevens would not be offended, or might even chuckle. But for a Supreme Court opinion read by those of us without this inside knowledge, the comment reads as rude, not just to Justice Stevens, but also to anyone who may agree with Justice Stevens' analysis in Heller.

Have I misread or overreacted to Justice Scalia's quip? Interestingly, Mark Tushnet at Balkinization today examines Justice Ginsburg's sharp tone in Christian Legal Society, and notes, "It's almost as if these parts of the opinion had been written by Justice Scalia." Perhaps I am overvaluing the importance of civility to persuasive advocacy and analysis, at least in some contexts?