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To be right and proper, the SCOTUS should find the DC gun ban unconstitutional while confirming the individual right to keep and bear arms without restriction.

I'm hoping that happens too, but I'm not certain that Kennedy will resist the temptation to inject some contortion of English and logic. He said, "Miller may be deficient." Say a prayer for Kennedy.

PDF link to the oral argument: JUSTICE KENNEDY: It seems to me that Miller, as we're discussing it now, and the whole idea that the militia clause has a major effect in interpreting the operative clause is both overinclusive and underinclusive. I would have to agree with Justice Ginsburg that a machine gun is probably more related to the militia now than a pistol is. But that -- that seems to me to be allowing the militia clause to make no sense out of the operative clause in present-day circumstances.MR. GURA: Your Honor, even within the militia understanding, the understanding of the militia was always that people would bring whatever they had with them in civilian life. So if a machine gun, even though it may be a wonderful -- JUSTICE KENNEDY: My point is: Why is that of any real relevance to the situation that faces the homeowner today? MR. GURA: It's only of relevance if the Court wishes to continue reading the militia clause as informing the type of weapon which is protected. JUSTICE KENNEDY: Well, you're being faithful to Miller. I suggest that Miller may be deficient.MR. GURA: I agree with Your Honor, and certainly in our brief we suggest that the militia emphasis of Miller is not useful as a limiting principle to the type of arms that may be -- that may be permitted. Because, on the one hand, there's a great deal of weaponry that might be wonderful for military duty but is not appropriate for common civilian use, which would not be protected even under the Miller test's first prong. And, on the other hand, everything that civilians today might wish to have in ordinary common use -- handguns, rifles, and shotguns -- are militarily useful weapons. So we de-emphasize the military aspects of Miller as being ultimately not very useful guidance for courts. And the better guidance would be to emphasize the commonsense rule that I think judges would have really no trouble applying, and we do this all the time in constitutional law: To simply make a decision as to whether or not whichever arm comes up at issue is an arm of the kind that you could really reasonably expect civilians to have.

Pages 62 - 63

Kennedy’s remarks might be a good thing, and might be a bad thing.

Thanks for the ping!

To simply make a decision as to whether or not whichever arm comes up at issue is an arm of the kind that you could really reasonably expect civilians to have.

That test is a red herring. HOW could civilians be reasonably expected to have full autos, when they've been highly regulated and taxed (and illegal in some states) since 1934 - not to mention that the price of all existing full autos was driven up by 500%-1000% because of the '86 ban????? I'd like Justice Kennedy (or, more likely, the Solicitor General) to say with a straight face that the average purchaser of an AR or an AK-47 wouldn't pay an extra $50 or so for a happy switch, provided it was both legal and not subject to registration and a $200 fee, etc., etc.