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Nelson Lund

Bio: Nelson Lund is an academic researcher from George Mason University. The author has contributed to research in topic(s): Supreme court & Constitution. The author has an hindex of 7, co-authored 57 publication(s) receiving 167 citation(s). Previous affiliations of Nelson Lund include Georgia State University & Texas A&M University.

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Journal Article
Abstract: The Second Amendment to the United States Constitution has become the most embarrassing provision of the Bill of Rights. Although crime, violence, and gun control have been among the hottest topics of political controversy over the past two decades, civil libertarians have generally shown much less enthusiasm about the Second Amendment than about other provisions of the Bill of Rights. The federal courts have also been manifestly uncomfortable with the Second Amendment and, in recent times, have declined every opportunity to give it the same thorough consideration that is automatically given to by the other specific guarantees of the first eight amendments. The lower courts generally have either adopted an interpretation that is implausible on its face, inconsistent with Supreme Court precedent, and unsupported by historical evidence about the intention of the Framers, or adhered to ancient precedents that treated the Bill of Rights as being inapplicable to the states. The Supreme Court, moreover, inscrutably denies all petitions for certiorari. Despite a growing body of literature examining the original meaning of the Second Amendment and a simmering debate over the desirability and efficacy of gun control legislation, no one has attempted to develop an interpretation of the Second Amendment that fits comfortably within the Supreme Court's modern jurisprudence of individual rights. That jurisprudence can be characterized as an ongoing attempt to reconcile what is known about the original intent underlying the Bill of Rights with the desire of legislatures to respond rationally to modern problems unforeseen at the time it was drafted. Most provisions in the Bill of Rights have been interpreted so as to advance an elaborate effort by the judiciary to act as an umpire between individuals' impulses for freedom and government's concern for the maintenance of order and public safety. And yet, just when the conflict regarding the Second Amendment is perhaps at its sharpest and most poignant, the Supreme Court has remained strangely silent. Whatever one may think about the motives, character, psychology, or intelligence of those who desire to possess firearms, the principle that those individuals assert is profoundly serious. The claim to the tools needed for exercising one's lawful right to protect himself (and perhaps especially herself) from criminal violence should be given at least as respectful a hearing as the First Amendment claims of Nazis and pornographers or the Fourth Amendment claims of confessed murderers. Although the Supreme Court finds time to busy itself with case after case involving the most minute adjustments in the constitutional rules of criminal procedure and the doctrines affecting obscenity, libel, and time, place, and manner restrictions on speech, the Second Amendment is simply ignored. This Article begins with a brief review of the evidence pertaining to the Second Amendment's original meaning and the case law that has since developed. After discussing the basic principles that should govern the application of the Second Amendment under modern conditions, the Article sketches a Second Amendment jurisprudence that is broadly consistent with the Court's modern treatment of the Bill of Rights. The Article suggests that this jurisprudence would preserve the essential freedoms that concerned the Framers while leaving modern legislatures ample means to foster public safety and the general welfare.

15 citations

Posted Content
Abstract: District of Columbia v. Heller was a Second Amendment test case, brought by a group of libertarian lawyers on behalf of plaintiffs with respectable backgrounds and appealing reasons for seeking relief from the District of Columbia's extremely restrictive gun control regulations. Heller turned out to be a test case in a different sense as well. With almost no relevant precedent to constrain its analysis, the Supreme Court was given the opportunity to apply a jurisprudence of original meaning to the Second Amendment's manifestly puzzling text. The Chief Justice ensured that this would be a pretty fair test of originalism when he assigned the majority opinion to Justice Scalia. In Heller, the lawyers who initiated the litigation won their test case. Justice Scalia and his colleagues, however, flunked their test. This was a near perfect opportunity for the Court to demonstrate that original meaning jurisprudence is not just "living constitutionalism for conservatives," and it would been perfectly feasible to provide that demonstration. Instead, Justice Scalia's majority opinion makes a great show of being committed to the Constitution's original meaning, but fails to carry through on that commitment. In a narrow sense, the Constitution was vindicated in Heller because the Court reached an easily defensible originalist result. But the Court's reasoning is at critical points so defective-and so transparently defective in some respects-that Heller should be seen as an embarrassment for those who joined the majority opinion. I fear that it may also be widely (though unfairly) seen as an embarrassment for the interpretive approach that the Court purported to employ. Originalism deserved better from its judicial defenders.

14 citations

Posted Content
Abstract: The National Constitution Center asked two professors — one nominated by the Federalist Society and one nominated by the American Constitution Society — to discuss the meaning of the Second Amendment. The exchange, which appears on the Interactive Constitution web site, begins with a co-authored statement that articulates the principal points of agreement between the two contributors. It is followed by individual statements addressing several issues on which the contributors disagree.

8 citations

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01 Jan 2014
Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

1,336 citations

01 Jan 2013
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82 citations

01 Jan 2015
Abstract: Title of Dissertation: CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA Michael Odell Spivey, Doctor of Philosophy, 2015 Dissertation Directed by: Professor Wayne McIntosh Department of Government and Politics The notion of a “culture war” has become a fixture in the academic writing about current American politics, in the popular press and in the cultural zeitgeist. Theorists have suggested that there is a cultural fault line dividing cultural progressives and religious traditionalists. This fault line, it is argued, stems from a basic epistemological disagreement as to whether there is transcendent “truth.” According to James Davidson Hunter, these different worldviews lead to policy polarization and cultural warfare. Hunter goes on to suggest that courts (and especially the Supreme Court) are focal points for this conflict. This work analyzes the nature and scope of battles over culture war issues in the United Supreme Court. It relies on a popular description of key culture war issues: God, guns and gays. The Supreme Court’s treatment of each of these issues is analyzed in turn. In addition, the Supreme Court’s abortion jurisprudence is also examined. With respect to each issue, key Supreme Court cases are identified. The briefs filed by the parties are then summarized and coded, identifying key “modalities” of arguments and specific arguments themselves. All amicus briefs are similarly analyzed and coded. The key Supreme Court decisions are then analyzed in light of arguments raised by parties and amici. Based upon this analysis, it appears that there is not one culture war but rather an interrelated set of cultural battles. Relatedly, there has been an evolution of cultural warfare over time. Some issues have become largely settled (at least within the Court’s jurisprudence); others are on their way to being settled and still others present continuing opportunities for cultural clashes. The work concludes by suggesting that the sexual revolution lies at the heart of cultural warfare. Moreover, cultural battles are over the “meaning” of America, that is, what social values will be protected under law. CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA by Michael Odell Spivey Dissertation submitted to the Faculty of the Graduate School of the University of Maryland, College Park in partial fulfillment of the requirements for the degree of Doctor of Philosophy 2015 Advisory Committee: Professor Wayne McIntosh, Chair Professor Karen Kaufmann Professor Frances Lee Professor Irwin Morris Professor Susan Dwyer ©Copyright by Michael Odell Spivey 2015

60 citations

29 Oct 2001
Abstract: Politicians are not neutral maximizers of the public good, they respond to incentives just like other individuals. We apply the same reasoning to those politicians in robes called judges. We argue that elected judges, particularly partisan elected judges, have an incentive to redistribute wealth from out of state defendants (non voters) to instate plaintiffs (voters). The partisan electoral hypothesis is tested first using data on 75,000 tort awards from across the states. We control for differences in injuries, state incomes, poverty levels, selection effects and other factors that may cause awards to differ across the states. One difference which appears difficult to control for is that each state has its own body of tort law. We take advantage of a peculiar aspect of American Federalism to make this distinction. In cases involving citizens of different states, aptly called diversity of citizenship cases, Federal judges apply state law to decide disputes. Diversity of citizenship cases allow us to test whether differences in awards are caused by differences in electoral systems or differences In state law. The evidence from the cross state regressions and from the diversity of citizenship cases, strongly supports the partisan election hypothesis. In cases involving out of state defendants and in state plaintiffs the average award (conditional on winning) is 42% higher in partisan than in non partisan states; approximately 2/3 rds of the larger award is due to a bias against out of state defendants and the remainder due to generally higher awards against businesses in partisan states.

48 citations

Posted Content
Abstract: This document is the second installment of three in the Cerro Grande Fire Series. Like its predecessor arXiv:quant-ph/0105039, "Notes on a Paulian Idea," it is a collection of letters written to various friends and colleagues, most of whom regularly circuit this archive. The unifying theme of all the letters is that each has something to do with the quantum. Particularly, the collection chronicles the emergence of Quantum Bayesianism as a robust view of quantum theory, eventually evolving into the still-more-radical "QBism" (with the B standing for no particular designation anymore), as it took its most distinctive turn away from various Copenhagen Interpretations. Included are many anecdotes from the history of quantum information theory: for instance, the story of the origin of the terms "qubit" and "quantum information" from their originator's own mouth, a copy of a rejection letter written by E. T. Jaynes for one of Rolf Landauer's original erasure-cost principle papers, and much more. Specialized indices are devoted to historical, technical, and philosophical matters. More roundly, the document is an attempt to provide an essential ingredient, unavailable anywhere else, for turning QBism into a live option within the vast spectrum of quantum foundational thought.

47 citations