The only question is whether the contexts surrounding the two cases are different enough to warrant their disparate treatment. Eight of the nine Justices believe they are not. Only one, Stephen Breyer, believes that they are.

You might need to include Scalia with Breyer; even though he ruled in favor of the Commandments in both cases, he’s on record as essentially saying that posting the Commandments is never constitutes impermissible establishment of religion. He takes a hyperliteralist (is that even a word?) reading of the religion clauses of the first amendment, believing that the only thing that would be unconstitutional is if Congress passed a law explicitly declaring an official national church.

Of course, a similarly strict reading of the second amendment would mean that the government could restrict the sale, manufacture, and importation of arms all it wanted, so long as it didn’t prohibit people from owning or carrying them. I doubt Scalia would be likely to rule that way.

I think Bernstein from Volokh sums up Scalia’s jurisprudence nicely:

[Scalia] is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative . . . “hit list.”

Second, thanks for the link. I know that some displays will be legal and others not, but isn’t that a reason on its own to avoid judicial involvement? Can’t we just let the state legislatures decide these issues of constitutionality? Or even Congress… at least someone we can re-elect or throw out, as appropriate.