Well, I don't really have a dog in your fight regarding Scalia's judicial philosophy, but I did have a dispute about your framing of the rights question. I have a serious problem with people who ask: "Where in the Constitution is there a right to .. etc, etc, etc?" That should never be the first question. The first question should be: "Where does the Constitution grant government the authority to regulate .. etc, etc, etc?"
Only once the first question has been answered in the affirmative, only then should one ask: "How does the government exercise this authority without violating any Constitutional rights?" If the first question has been answered in the negative, there is no way for the government to exercise authority it does not have without violating Constitutional rights (the 9th & 10th amendments).
I completely agree. My question was poorly framed.