Yesterday’s Supreme Court argument on the meaning of the Second Amendment sent out one quite clear signal, writes Lyle Denniston in ScotusBlog: “individuals may well wind up with a genuine right to have a gun for self-defense in their home.” What was not clear was what kind of gun that would entail and what kind of limitations government could put on access or use of a weapon. In an argument that ran 23 minutes beyond the allotted time, Justice Anthony Kennedy emerged as a fervent defender of the right of domestic self-defense. With Chief Justice John Roberts and Justices Samuel Alito and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the amendment (and with Justice Clarence Thomas having intimated that he may be sympathetic to that view), Kennedy's inclinations might make him the deciding vote.
There remained a chance that Justice Stephen Breyer would support an individual right to have a gun – provided that a ruling left considerable room for government regulation of weapons, particularly in urban areas with high crime rates. The hearing was notable for the commitment of U.S. Solicitor General Paul Clement to the position that while there should be an individual, private right to have a gun in one's home, it should be subject to regulation by government that would not have to meet the strictest constitutional test. He fears that the ruling at issue by the U.S. Court of Appeals for the D.C. Circuit might be understood to give individuals a right to have machine guns. He said government needed to worry about the implication of a strict Second Amendment limit on the gun right because of possible changes in technology, bringing new weapons under the amendment's protection.