The judgment will be 5-4 because the liberal justices will want to uphold the Chicago codes. The reasoning might enjoy a larger majority because some of the liberals might want an expansive PoI Clause. If it is the old fashioned Due Process incorporation then that will maintain the status quo and liberals have less of an incentive to join.
I've been thinking about the issue of scrutiny and
Heller lately. Most commentators seem to assume that the reason why the Court did not decide on a scrutiny standard was because the majority was divided. An alternative theory came to me the other day and I would like to share with you all:
1. Perhaps the majority wish to divide the 2nd Amendment under 2 categories. Those rights that can be covered by originalism will get strict scrutiny protection. Those rights that cannot be justified by originalism and are of more recent development (such as issues involving silencers and machine guns) will get intermediate scrutiny protection.
Perhaps that's why the majority could not decide on a single standard. They don't want a single standard.
2. It may also be possible that the Court intends to give rational basis test some teeth. Generally, it is thought of as a blank check for the government. But the majority stated that an outright ban fails all levels of scrutiny. That suggests that it fails even the rational basis test.
The libertarian Institute of Justice is filing a constitutional challenge to the National Organ Transplant Act. (See
part 1,
part 2,
part 3,
part 4, and
part 5) I know that this doesn't relate directly to firearms. But the argument being used is quite fascinating. If they prevail (which I seriously doubt), it will have significant impact on constitutional law in general and may indirectly impact future court rulings on gun control legislation. Their argument on rational basis test (see part 3) also seems tailored to encourage the courts to strengthen the rational basis test. Perhaps Heller is heralding an era in which the courts take rational basis test more seriously?
If so, it will be very interesting if decades from now when the 2nd Amendment is no longer being disputed, when the Bradyites have been reduced to a historical footnote, Heller might be less remembered for defining the 2nd Amendment and more remembered as the beginning of the courts' effort to enforce the rational basis test.
From this perspective, perhaps the foundation of the dispute between the majority and the minority lies in the fact that the minority foresaw the possibility of a strengthened rational basis test and recognized what it will mean for government legislation in general.