Kenneth Jost has a very clever column at CQWeekly.com predicting the Supreme Court’s opinion in the D.C. Gun rights Second Amendment case (assuming the Court agrees to hear it). My predictions are somewhat similar. In particular, I agree that the Court probably would conclude that the Second Amendment protects individual rights, and I agree that the Court wouldn’t think it obvious that this means the DC ban must be struck down in its entirety.
At the same time, my predictions are different from Jost’s in the following ways:
1) I doubt the Court would announce that Second Amendment restrictions are subject to only rational basis scrutiny. Unless the Court wants to apply a sort of ratcheted-up version of rational basis scrutiny, some higher intermediate scrutiny seems more likely.
2) I don’t think the Supreme Court would remand on all of the provisions of the ban. I think the Court would spend much more time than the D.C. Circuit did on evaluating which parts of the ban can survive under the relevant standard, and that it may have a mixed result and may remand for parts. But I tend to doubt the Court would simply remand on all parts of the ban.
3) If Justice Kennedy writes the opinion, I doubt the opinion would hinge on the role of guns and self-defense today versus at the founding. Rather, the focus would more likely be on the timeless meaning of the Second Amendment, which is just as valid today as it was generations ago. Of course, this doesn’t mean restrictions of such rights can’t be abridged in light of a significant countervailing interest, but I don’t think it hinges on the specifics of how guns are used today as compared to in the past (something that varies a great deal from community to community rather than from generation to generation).
Those are my guesses, at least — all assuming that the Court agrees to hear the case. Thanks to How Appealing for the link.