There were a number of argumentative routes by which the Supreme Court could have reached the same basic result as was announced in the Heller case, i.e., the invalidation of the de facto prohibition of private handgun ownership in the District of Columbia. One of them was adoption of the approach suggested by Solicitor General Paul Clement (though he explicitly suggested remanding the case back to the Court of Appeals for the District of Columbia for consideration in light of a somewhat different standard of review, that could have easily led to the same outcome). The brief that he submitted in behalf of the United States might be explained, Professor Levinson suggests, by reference to the importance of upholding existing federal gun-control legislation. Prior to the decision, Professor Levinson had published a short article expressing the hope that the Court might even be able to agree on a unanimous opinion in behalf of Dick Heller's specific claim, thereby negating the perception that the Court is currently bitterly divided on ideological grounds. Heller, of course, did turn out to be just another 5-4 decision. Professor Levinson, who is a political scientist as well as a lawyer, offers some surmises explaining both the inability of the Court to present anything approaching a united front on the issue and the fact that the actual result in the case may not, practically speaking, be all that different from the approach delineated by the Solicitor General, inasmuch as Justice Scalia's majority opinion went out of its way to seemingly embrace the legitimacy of existing regulations at the federal level.
Why Didn't the Supreme Court Take My Advice in the Heller Case - Some Speculative Responses to an Egocentric Question,
60 Hastings L.J. 1491
Available at: https://repository.uchastings.edu/hastings_law_journal/vol60/iss6/12