The Supreme Court has decided to grant a writ of certiorari in the case of District of Columbia v. Heller which involves the DC gun ban. For the first time in 60 years, since United States v. Miller, the Supreme Court will visit the issue of whether the Second Amendment protects an individual right to own firearms. As always, The Volokh Conspriracy will be following the case closely, and has some excellent commentary on what all of this means.
As seems to be the case with this Court, it all comes down to Justice Kennedy (now in the spoiler position formerly occupied by Justice O’Connor). Justices Scalia, Thomas, Alito and Chief Justice Roberts are almost certain to advocate for the individual right position. Justices Ginsberg, Breyer, Souter and Stevens are highly likely to come down on the side of the Second Amendment being a collective right for the “militia.”
I think Orin Kerr’s prediction is right: Justice Kennedy will endorse an individual rights view of the Second Amendment but would support a relatively lax standard of review for reviewing restrictions on firearms. What that means is that he’d be likely to support regulations which have only a rational relationship with some state interest rather than requiring strict scrutiny of state gun laws.
A holding that the Second Amendment does confer an individual right to fireamrs, but that any law that has only a rational basis to some state interest would be a Pyrrhic victory for gunowner’s rights groups. It wouldn’t do much to change the status quo, and it would still allow for significant restrictions on gun owners. Instead of settling the issue, it would probably cause more lawsuits as gunowners and groups like the NRA litigate exactly what regulations do and do not infringe upon the Second Amendment.