I’m going to do a rare bit of mid-day writing to point to this bit here, which – presuming it’s accurate, and the author Tom Goldstein takes pains to temper our enthusiasm – could be excellent news for Real Americans (emphasis added):
It does look exceptionally likely that Justice Scalia is writing the principal opinion for the Court in Heller – the D.C. guns case. That is the only opinion remaining from the sitting and he is the only member of the Court not to have written a majority opinion from the sitting. There is no indication that he lost a majority from March. His only dissent from the sitting is for two Justices in Indiana v. Edwards. So, that’s a good sign for advocates of a strong individual rights conception of the Second Amendment and a bad sign for D.C.
There are signs the Supreme Court is going to release its ruling Wednesday.
What’s strange is that, per O’Shea, there’s likely to be a majority on the threshold question but then all kinds of splits within the court on the subsidiary questions — and Scalia, being more of an absolutist on this issue, is unlikely to represent the majority on all or most of those subsidiary questions. Roberts himself, or Kennedy, would seem to be a better bet. Is that a hint that maybe the Court’s not going to reach those subsidiary questions at all, and will content itself with a simple ruling on the individual rights issue?
I’m loathe to indulge in exuberance of any sort, hence won’t speculate “perhaps the absolutists will win on all the subsidiary questions”. It’s never that easy.
Mike O’Shea has another fascinating possibility:
If D.C.’s handgun ban is held unconstitutional in Heller (as it should be), the city of Chicago’s essentially identical ban on handguns will offer a prime target for a test case designed to present the issue of Second Amendment incorporation. A lower court that considers the issue in light of the Supreme Court’s post-1960 “selective incorporation” precedents will have a very difficult time avoiding the incorporation of the Second Amendment, at least in some form, against state and local governments. The only way lower courts might be able to avoid that conclusion is by cleaving to nineteenth century Supreme Court opinions like Presser v. Illinois and U.S. v. Cruikshank that declined to incorporate the Second Amendment, just as the Court at that time declined to incorporate the other provisions of the Bill of Rights. The Court repeatedly rejected this approach during the twentieth century.
I’ll be watching the SCOTUS wire bright and early tomorrow.
UPDATE: Apparently Allahpundit had the wrong date for the next session in his copy; change to fit reality.