Richard Posner has written an essay questioning the "originalism" of the Heller decision. I found this assertion interesting:
If loose construction produces a conservative limitation on government, most conservatives will support it and most liberals will oppose it; and if it produces a liberal limitation on government, most liberals and conservatives will switch sides. The qualification in "most" is important, though. Scalia has voted to invalidate, on free-speech grounds, laws forbidding the burning of the American flag. That is loose construction - decidedly non-originalist in the narrow sense of his opinion in Heller - because burning is not speech; and it is a loose construction that produces a liberal outcome. Breyer concurred in a decision that allowed the Ten Commandments to be exhibited on the grounds of the Texas Capitol; and that was a conservative vote (and the swing vote in the case) by a liberal justice.For flag burning, the question is implied, are libertarians liberal or conservative? You can argue that libertarianism is an offshoot of liberalism, but most libertarians seem inclined to describe themselves as conservative, and to be more comfortable with the Republican party. Yet Posner would place libertarians squarely in the liberal camp on the question of whether the government should have any say over what you do with your own property. If you put it in terms that hide the symbolic speech element, may conservatives would take the "liberal"/libertarian position that the government shouldn't be able to criminalize conduct tantamount to flag burning, provided you own the flag and comply with any applicable laws aimed and protecting the public. So what exactly is it that makes flag-burning laws "conservative" in nature? Is it inherently conservative to put symbols ahead of personal liberty?
Similarly, with the Ten Commandments, how is it inherently conservative to want them exhibited in public spaces? Would we expect non-Christian conservatives to hold the same position, even if symbols of their own religious beliefs are excluded? Is it inherently conservative to wish to erect public monuments to a specific religion or faith, in disregard or derogation of other faiths?