Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit (Chicago and surrounding areas), is one of my favorite jurists for his acumen and refined writing skill. He reviews the D.C. Gun Case (District of Columbia v. Heller) in the August 27, 2008 issue of The New Republic.

      Posner examines alternative methods of construing the Second Amendment, according to the theories of judicial interpretation called “originalism” and “loose construction”.  This masterful critique of Justice Antonin Scalia’s majority opinion in Heller reasons that Scalia not only betrayed his signature approach to judicial reasoning called “originalism”; but used the alternative method of “loose construction” to reach the exact opposite conclusion from where he should have ended up.

      Posner also says recent SCOTUS majority views are irreconcilable, and points to political considerations or a trivialization of the subject matter as being the cause. 

     This ten-paged essay is brilliant exposition, whatever your viewpoint regarding the right to keep a loaded revolver at home.

     Here’s the theme: “Loose construction” is only for minor adjustments. Factors calling for such adjustment may include guns being different now from what they were at the inception of our Bill of Rights; or the fact that views on gun ownership vary widely based upon “cultural diversity, local preference and social experimentation.” One rule does not fit all. In a different dimension, the adjustment issue may be viewed as a loosening or tightening of executive and legislative regulatory authority.

      “Loose construction” is remarkably similar to digital film editing with Photoshop® where the criterion for small modifications is maintaining a plausible connection to what you started with.