A few days ago, the United States Supreme Court heard arguments in McDonald vs. Chicago. The issue in this case is whether or not states and local municipalities are subject to the 2nd Amendment right to carry a gun.

Of course these days, when the conservative 5 Justices "hear argument" what that really means is that they are collectively reliving that magical night they first denied a stay of execution, or whatever else it is that people who have already made up their minds and have no interest in what the dude in the suit standing before them is saying, do.

Our favorite 5 are nothing if not predictable. You don't even have to know the issue before the court to know who is going to win. All you need to know are the litigants. So for example, if it's a prosecutor vs. a criminal defendant, well then the prosecutor is going to win. If it's a civil-rights plaintiff vs. a company accused of discrimination, then the company is going to win, unless the plaintiffs are white guys, in which case the white guys are going to win. In fact, its a pretty good rule of thumb that if the case is white guys against anyone else for any reason the white guys are going to win.

So lets take a little test to see if I've made this clear. Here are three hypothetical cases. See if you can guess (without even knowing the facts of the case) who will win each one. Litigant A or Litigant B.

A) Exxon Mobile

vs.

B) An environmentalist named "Rainbow Smock" who keeps his hair in a bun

A) Dick Cheney

vs.

B) A Muslim detainee named Achmad el-Detainee

A) Walmart

vs.

B) A member of "Feminist Warrior Nation" who wears a bra made out of hemp

If you answered "A" to all 3, you are a genius. If you answered "B" to any of the above, you are what we call an un-genius. In any event, once you understand this construct, it won't be hard to figure out who is going to win McDonald vs. Chicago.

However, I do not view this as a bad thing. First, let me tell where I am coming from. Despite what Ted Nugent says, I am not in favor of taking everyone's guns away from them. Parenthetically, Nugent is also lying about me being the inspiration for "Cat Scratch Fever". I favor reasonable gun restrictions mostly designed to prevent straw purchasers from buying 100 guns at a time and selling them to young, underage, juvenile children or criminals, or people who like to eat other people's liver with fava beans and a good Chianti.

For example I support limiting the number of guns one can purchase to one per month. If you are married that means you and your lovely bride can buy 24 guns a year, enough to invade Peru. That seems sufficient, even to the Peruvians who would probably surrender without a shot being fired. I have long argued that even given the 2nd Amendment, one-gun-a-month would easily be constitutional.

I say this because of how courts interpret individual rights. No right is absolute. The classic example is the one about not being allowed to yell "fire" in a crowded theater. Apparently you can yell "Fire" in an empty theater, but very few people bother. In any event, there are lots of restrictions on free speech and lots of exceptions to every constitutional right. The way the courts evaluate this is that they apply a level of what they call "Scrutiny" (A technical legal word. The layman's term is "Scrutiny") to any law that allegedly impinges on a constitutional right.

If the right is a fundamental right, which we'll assume the right to keep and bear arms is, then the court applies "Strict Scrutiny" to any law that restricts the right to own a gun. In applying Strict Scrutiny the court will look at how serious or severe the impingement on the right is and balance that against how important the state interest in the law is. I talk like this a lot, which is why I'm rarely invited to parties.

In the case of one-gun-per-month, the restriction is extremely slight. Again, you and Martha...24 guns a year every year. Lots and lots of guns. If you are a licensed collector, you can buy more and take Peru back from the other couple who invaded it first!! On the other hand, the state's interest in preventing drug-addled, insane juveniles from randomly shooting people is pretty substantial. In fact, if you are being shot at, you are likely to say "Holy Crap, that state interest is REALLY substantial!!" So given the normal constitutional balancing test, one-gun-a-month is very likely to survive.

The court actually applying that test, or even articulating a new test is good news because currently, I get a ton of e-mails telling me that one-gun-a-month and other such bills are "unconstitutional." And the Supreme Court's jurisprudence so far allows them to do this. That's because in the Heller case, which for the first time in 230 years or so found an individual right to bear arms, specifically said that they were not saying what level of scrutiny should be applied to gun laws or how. (Heller dealt with DC's law. Since DC is a federal city, a second case is required to determine if the right to carry a gun applies to the states.)

So while it is inevitable that the court will rule 5-4 that Heller also applies to the States, the court will be forced to at least articulate some methodology for testing state gun laws in the future. The court says the right is absolute. But that would mean that meth addicts could carry machine-guns into elementary schools. I think that this might be a bit much even for Scalia. Thus, there must be some balancing test and almost anyone they could conjure up would make most gun control laws short of total confiscation of all guns constitutional.

This would do two good things. Those who oppose even the most reasonable gun laws could no longer say such laws are unconstitutional, and they could no longer say that our real agenda is taking away all guns from everyone because that would be unconstitutional. This would save lives and enable Ted Nugent to calmly rest his head on his pillow, which is stuffed with large, powerful guns.