Has The U.S. Supreme Court Put The Second Amendment Into Sleep Mode

District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) created a sea change in constitutional law by holding that people have the fundamental right to keep and bear arms under the Second Amendment. But they left several important questions unanswered. More than a few petitions for certiorari, which test the scope and nature of this right, have been filed in the U.S. Supreme Court, but all have so far been rejected.

Will the Supreme Court take up a case anytime soon and decide once and for all whether the right to keep and bear arms applies outside the home? Or has the Second Amendment fallen into indefinite sleep mode? Although no federal court of appeals has held that there is *no* such right outside the home, some courts instead have artfully dodged the question. In other words, they assume the right extends outside the home without deciding the question and then turn to the merits of the case. The reason why this matters is that because the courts don't grapple with the nature of the right, they naturally tend to water down the standard of review when considering the merits.

Usually fundamental rights trigger strict scrutiny by the courts. And yet, most federal courts of appeal have applied intermediate scrutiny. A case can be made that these courts have eviscerated the right through the use of the malleable intermediate scrutiny standard without having to say so. The intermediate scrutiny approach appears to involve the very "interests balancing" (between the individual interest in possessing a firearm and the state’s interest in protecting public safety) that the Supreme Court rejected in Heller and McDonald. So how will the Supreme Court decide the right-to-carry/standard of review questions?

Currently, two federal courts of appeal have unequivocally held that the Second Amendment right extends outside the home: Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. Feb. 13, 2014) and Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012) (reasoning that one doesn't have to be a historian to know that during the Founding era, the right could not have rationally been confined to the home).