[T]here is a definite conflict among the Circuit Courts on the meaning of the Second Amendment, and the Supreme Court has not ruled on the issue since a somewhat ambiguous decision in 1939 (U.S. v. Miller). . . .
While the Fifth Circuit Court has ruled in favor of an individual right theory, it did not use that theory to strike down any specific gun control law. By contrast, the D.C. Circuit ruling was the first to apply that theory directly in nullifying a gun law. Every other Circuit Court to rule on the issue has rejected the indiviual right theory, largely based upon the Supreme Court's Miller decision. There is also a 10 to 7 split among state appellate courts on the issue.
Moreover, there is also a direct conflict over the Second Amendment as it applies specifically to the D.C. gun law -- the city's highest local court, the District of Columbia Court of Appeals, has upheld the same law by embracing the collective right theory. It reiterated that position as recently as last week, in the case of Andrews v. United States (D.C. Court of Appeals docket 02-1043) -- a ruling that the city government had brought to the Circuit Court's attention last Friday, before rehearing was denied. . . .
Because the case of Parker v. District of Columbia deals only with the Second Amendment as a federal issue, it does not raise the question of whether the Second Amendment applies at all to state and local government. The Supreme Court last faced that issue in 1886 in Presser v. Illinois, finding that the Amendment only applied to the federal government. That would not be an issue in the Parker case in the Supreme Court, but a state or local case would be almost certain to arise to test it.
The position of the U.S. Supreme Court on this constitutional issue, like almost all others, boils down to what Justice Kennedy things about it. Justice Thomas is a clear vote to adopt an individual rights theory, something he suggessted the Court do in 1997. Justice Alito would likely agree. But, how Justice Kennedy would rule in this case is anybody's guess.
While I would prefer to see the U.S. Supreme Court take this case and find that the Second Amendment does not confer an individual right, as long as Presser v. Illinois remains good law (dicta to that effect in the instant case would be good enough), it doesn't really matter that much, it simply makes gun control a state issue. I certainly don't see any obvious reason that the current incorporation theory, which asks if the due process clause of the 14th Amendment requires that a provision of the Bill of Rights be applied to the states, should lead the high court to apply the Second Amendment to the states.
Indeed, originalists on the court, while they might favor an individual rights theory of the Second Amendment, might likewise, be particularly inclined to uphold Presser v. Illinois as it resolved the issue not long after the 14th Amendment was adopted, and hence is likely to reflect the original intent of the drafters of that Amendment to the U.S. Constitution. Many conservatives, indeed, bear hostility to the incorporation doctrine that applies the Bill of Rights to the states, in general.
If a loss in Parker v. District of Columbia in the U.S. Supreme Court with a dicta upholding Presser v. Illinois gave the movement either for statehood for the District of Columbia, or the annexation of all or most of the District of Columbia by Maryland, the push it needed to pass, would that be such a bad thing?