If the comments made by SCOTUS in this blog post over at Reason is any indication, then I am moderately optimistic:
In one of the threads about the D.C. gun ban case, at least one commenter was skeptical that there are (at least) five votes on the Supreme Court in favor of an individual-right interpretation of the Second Amendment. If you read the transcript of yesterday's oral arguments, you'll see that John Roberts, Antonin Scalia, Samuel Alito, and Anthony Kennedy are pretty clearly on board:
Roberts [addressing Walter Dellinger, D.C.'s attorney]: If [the right to keep and bear arms] is limited to State militias, why would they say "the right of the people"?...
That concedes your main point that there is an individual right and gets to the separate question of whether the regulations at issue here are reasonable....
So if you have a law that prohibits the possession of books, it's all right if you allow the possession of newspapers? [referring to the distinction between handguns and long guns]
Scalia: I don't see how there's any contradiction between reading the second clause [of the amendment] as a personal guarantee and reading the first one as assuring the existence of a militia....The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed....
[Blackstone] thought the right of self-defense was inherent, and the framers were devoted to Blackstone. Joseph Story, the first commentator on the Constitution and a member of this Court, thought it was a personal guarantee.
Alito: If the amendment is intended at least in part to protect the right to self-defense in the home, how could the District code provision survive under any standard of review where they totally ban the possession of the type of weapon that's most commonly used for self-defense, and even as to long guns and shotguns...they have to be unloaded and disassembled or locked at all times, even presumably if someone is breaking into the home?
Kennedy: The amendment says we reaffirm the right to have a militia, we've established it, but in addition, there is a right to bear arms....
In my view [the Second Amendment] supplemented [the Militia Clause] by saying there's a general right to bear arms quite without reference to the militia.
Clarence Thomas, as is his wont, did not say anything during the oral arguments. But if any justice could be counted on to support a Second Amendment that imposes significant restraints on gun control, it would be him. Thomas is an avowed "original intent" jurist, and the contemporaneous evidence on the meaning of the Second Amendment, as demonstrated in the respondent and amicus briefs (not to mention the appeals court decision overturning D.C.'s gun ban), strongly favors the view that it is about more than state militias. http://reason.com/blog/show/125587.html
There is NO doubt about him. I usually (as a lawyer) am very reluctant to predict based on oral arguments, but I can say with a high level of optimism that we will carry the day here.
It will probably be a 5-4 decision since I think Breyer was toying with the idea in the hopes of getting Kennedy to basically go along with what amounts to a rational basis test (which protects nothing).
His idea of reasonableness would let any gun control law stand as long as people can have a musket somewhere in the home.
RBG is not going to vote our way (I hope she proves me wrong for the first time ever). She was trying to shoot down the good part of Miller, not show how Miller will be used to strike down the Federal ban on machine guns.
Souter and Stevens offered no hint that they are anything other than shills for the far left. Souter argued that the ban is reasonable because the high crime rate in D.C. and Scalia interrupted by saying "all the more reason to allow handguns". Scalia was not trying to win him over. He was just trying to marginalize him in front of Kennedy and the whole country for that matter. I read one report that Thomas buckled over laughing when Scalia rattled off a whole list of specific firearms that a person might want to have in the context of the govt. trying to limit the number of guns a person could own.
Breyer might write a separate opinion to say some individual right exists, but will allow lots of restrictions.
I do think the court will incorporate the 2nd into the 14th. My reason for this belief comes from the same reason the court took the case to begin with. That is that there is a split in the Circuits. Why would a split matter if this ruling only applied to D.C?
the D.C Circuit could not incorporate it because that was not before them and it was not their place to do so. But this is the perfect case for clearing the matter up so we can have uniformity.
Final tally: 5-4 to affirm. Roberts writes the majority opinion and it is incorporated. Thomas concurs saying that darn near every gun law is now in question and should be. Souter writes a dissenting opinion that says the right is only in connection with a militia, and is joined by RBG and Stevens. Breyer dissents separately to say that he supports a right that is limited by a reasonableness test, and the D.C law is reasonable in light of its crime problems.