Richard Posner: "In Defense of Looseness"
In the current issue of The New Republic, Senior Lecturer Richard Posner has published an article in which he discusses the repercussions of the Supreme Court's recent decision in District of Columbia v. Heller, the meaning of originalism, and "the mystique of 'objective' interpretation." The first two paragraphs are reprinted below, and the entire article is available here.
At the end of June, the Supreme Court, in a case called District of Columbia v. Heller, invalidated the District's ban on the private ownership of pistols. It did so in the name of the Second Amendment to the Constitution. The decision was the most noteworthy of the Court's recent term. It is questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.
The majority opinion, by Justice Antonin Scalia, concluded that the original, and therefore the authoritative, meaning of the Second Amendment is that Americans are entitled to possess pistols (and perhaps other weapons) for the defense of their homes. Scalia's entire analysis rests on this interpretive method, which denies the legitimacy of flexible interpretation designed to adapt the Constitution (so far as the text permits) to current conditions. The irony is that the "originalist" method would have yielded the opposite result.