Antonin Scalia

“ To be sure, a jury would often confront practical difficulty in applying the presumption (as opposed to theoretical difficulty in understanding it, because of its "inherent contradiction") , in that it would frequently be a nice question whether a particular factual showing is only enough to establish use or also enough to establish "circumstances" as well. ”

“ If they were taken literally, the Court reasons, the very evidence establishing the presumption would cause it to vanish. Ante, at 401, n. 6. I find no such contradiction. It seems to me quite possible to prove that a deadly weapon was used without proving the circumstances surrounding that use. The victim, for example, is found dead of a gunshot wound and the defendant is shown to have been the only person with access to the victim, and to have been in possession of the gun that fired the fatal shot. ”

“ The Court feels empowered to decide this case on the basis of an examination of the record because the jury was "free to look beyond the unlawful act presumption and to consider all the evidence on malice." Ante, at 408. I agree that they were free to do so. Indeed, I believe that they had to do so. (Surely the instruction that something is "rebuttable" conveys to the reasonable jury that they not merely may but must determine whether it has been rebutted.) ”