With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy's inclinations might make him - once more - the holder of the deciding vote. There also remained a chance, it appeared, the Justice Stephen G. Breyer, one of the Court's moderates, would be willing to support an individual right to have a gun - provided that a ruling left considerable room for government regulation of weapons, particularly in urban areas with high crime rates.
One of the most important aspects of the 98-minute hearing was the steadfast commitment that the federal government's lawyer, Solicitor General Paul D. Clement, held to the position he had expressed in a brief that has come under heavy fire from the White House and from a wide swath of the gun-owning community. Clement had written that, while there should be an individual, private right to have a gun in one's home, it should be subject to "reasonable regulation" by government. At the podium, he several times repeated his criticism of the D.C. Circuit Court for raising a higher constitutional bar to gun regulation - even though his critics passionately support exactly what the Circuit Court did in striking down the District of Columbia 's 1976 ban on any private ownership or use of handguns.