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.

Comments

[Frank M. Cook]

I see that comments in the New Republic criticize Posner for not recognizing that the original intent of the second amendment was to preserve the ability to revolt. Perhaps, I should comment on the comments in the place where they were made, but I'd prefer to express my views here at home.

While it may indeed have been the original intent of the framers to make revolution possible, using that as the foundation upon which to determine what the clause should mean today leads to a trap. If we are to say that the clause gives individuals the right to arm themselves sufficiently to resist the power of the national army, we must conclude that we have the right to fighter jets, tanks, and nuclear missiles because any insurrection not so equipped would be at a serious disadvantage. Not even the NRA contends that.

Given that, is there no alternative reading short of finding an unlimited right of the government to prohibit the ownership of arms? That would indeed be a very slippery slope.

The DC law said that even with a license a loaded gun could not be kept in a home. Even we liberals understand that having an unloaded gun has no utility. So what we have is a new decision which tells us only the unremarkable proposition that we're going to have to draw a line somewhere in between everyone can have whatever kind of weapon they want, and no one can have any weapons at all.

Of course, much of the article takes issue with the expressed reasoning in the opinions. Being a student of Kurland and Mentschikoff, I put little stock in all expressed explanations. What we have is a narrow holding. Only time and further decisions will tell us how to understand the result.

We've long known that licensing requirements are reasonable. Now we know that a complete prohibition is unreasonable. Let the contest begin.

[LAK]

Posner shuold be the most conservative member of teh High Court. Scalia is nothing but a Religious, idealogical zealot. Posner pretty much undresses him. It was refreshing to read Posner calling for loose interpretation of the Constitution in situations where the law you're dealing with is centuries old, the social context of those laws has changed dramatically and where behavioral norms vary widely across the country.

What a travesty the Heller opinion was.

[Ariel]

I agree that it's a bit absurd. The Constitution was originally talking about citizens being able to carry weapons when there was no army to protect them. But when we have a "well-regulated militia" without the citizens' help, can we accurately explain the second amendment to apply here?

(The second amendment is as follows,
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.")