How Stephen Breyer could end his tenure with a surprise

So will Justice Breyer go out with even a single, significant majority opinion? It is possible, but only if he — and his originalist colleagues — recognize the need for some clarity on the Second Amendment in 2022. What if Breyer authors the majority opinion in the Second Amendment case before the court: New York State Rifle & Pistol Association v. Bruen?

This would be a clear departure from Breyer’s dissent in the 2008 Heller decision — the milestone ruling that the Constitution protects an individual’s right to bear arms. At that time, Breyer wrote that “Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limit­ing any legislature’s authority to regulate private civilian uses of firearms.”

“Specifically,” Breyer continued, “there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”

Breyer lost in 2008. Could he now choose to accept the reality of the new court expanding on what the more closely divided court decided back then? Could he indeed offer to write the majority opinion, and replace the outdated “standards of review” for gun laws (strict scrutiny vs. intermediate scrutiny vs. “rational basis”) with some sort of reasonable rule, devised by Breyer, that articulates a test for the constitutionality of gun control laws in a way that the vast majority of gun owners see as not only reasonable, but compelling?