Why should a dying declaration have protection? I do not understand the logic behind this.
Under common law there are some exceptions to the hearsay rule and the declaration of a man who is dying and is convinced of his impending doom is deemed to be reliable based on the theory that a man who is about to meet his maker is not going to go to his grave with a lie on his lips.
The constitutional guarantee that an accused has a right to confront his accuser in court is clearly stated in the constitution. The exception to the hearsay rule is not specifically stated, but it has been traditionally used (even after the inception of the constitution) to allow dying declarations to be admitted on the basis that the witness is no longer available and the hearsay testimony of the witnesses to the declaration is inherently reliable.
Here Scalia points to the fact that the victim was clearly not convinced of his impending doom and neither were the police who were interrogating him. This is a situation where even under Common Law the statement would not be admissible. But the Supreme Court has now come up with a new method of determining the admissibility of such a statement based on the seriousness of the crime. This was a bad decision. It opens the door to all kinds of judicial mischief. Scalia was right.