Peruta, the Home-Bound Second Amendment, and Fractal Originalism //Harvard Law Review Forum

Peruta, the Home-Bound Second Amendment, and Fractal Originalism:
by Darrell A.H. Miller // Harvard Law Review Forum

Second Amendment disputes used to cleave along one dimension: collective versus individual rights.  No more.  Ever since a majority of the Justices of the United States Supreme Court broke in favor of individual rights in District of Columbia v. Heller¹and McDonald v. City of Chicago,² tremendous litigation pressure has fragmented Second Amendment theory and doctrine.  The pressure is unlikely to ease soon.  Motivated parties, well-financed advocacy organizations, and the prospect of attorneys’ fees guarantee that every question of who, what, where, when, and why concerning the right to keep and bear arms is going to be asked, and will demand an answer.
Currently, the most pressing doctrinal question splitting the circuits, at the broadest level of generality, is whether the Second Amendment right to keep and bear arms extends beyond the home.  The Ninth Circuit recently has entered that debate.  In Peruta v. County of San Diego,³ a divided three-judge panel of the Ninth Circuit held that the Second Amendment is not home-bound.  Judge O’Scannlain, writing for the majority, held that the Second Amendment scope includes a right to carry firearms for confrontation in the streets.  The state of California has sought en banc review.  Petitions for certiorari are pending in similar cases.  It is likely we will see a Supreme Court resolution to this issue in the next few years.

RELATEDDoes the Second Amendment Protect Firearms Commerce?by David B. KopelGood Cause Requirements for Carrying Guns in Public by Joseph BlocherThe Second Amendment as a Normal Right by Alan Gura
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