Six justices active in questioning during Tuesday's arguments seemed to at least contemplate an individual rights approach. If a majority embraces such an approach, it is far from clear what legal standard they would then apply to determine the constitutionality of the D.C. gun law. Reaching consensus on this issue may very well be the biggest challenge for Chief Justice John G. Roberts Jr. We urge the justices to adopt the lowest standard of review to allow governments maximum flexibility in enacting laws meant to protect public safety. If a majority cannot agree on this, we would hope that they would heed the suggestions of Solicitor General Paul D. Clement, who argued for a tougher standard but one that clearly permits sensible regulation, such as licensing, background checks and a ban on machine guns.
