Showing papers by "Nelson Lund published in 2005"

Fig Leaf Federalism and Tenth Amendment Exceptionalism

Abstract: The Supreme Court's jurisprudence of federalism is at best undergoing an unfinished transformation, and is at worst just troubled and unsatisfying. In a little-noticed dissent in Tennessee v. Lane, Justice Scalia proposed an approach that could be generalized well beyond the specific position that he took in that case. Thus generalized, this approach may be understood as an elaboration of a proposal made by Justice O'Connor in her dissenting opinion twenty years ago in Garcia v. San Antonio Metro. Transit Auth. If adopted by the Court, this synthesis of the O'Connor and Scalia suggestions could work a real transformation in its federalism jurisprudence, and without some of the potentially radical side-effects that have thus far made the Court timorous and inconsistent. This very short paper explains how the synthesis would work, and why the Court should adopt it.

Fig Leaf Federalism and Tenth Amendment Exceptionalism

Abstract: The Supreme Court's jurisprudence of federalism is at best undergoing an unfinished transformation, and is at worst just troubled and unsatisfying. In a little-noticed dissent in Tennessee v. Lane, Justice Scalia proposed an approach that could be generalized well beyond the specific position that he took in that case. Thus generalized, this approach may be understood as an elaboration of a proposal made by Justice O'Connor in her dissenting opinion twenty years ago in Garcia v. San Antonio Metro. Transit Auth. If adopted by the Court, this synthesis of the O'Connor and Scalia suggestions could work a real transformation in its federalism jurisprudence, and without some of the potentially radical side-effects that have thus far made the Court timorous and inconsistent. This very short paper explains how the synthesis would work, and why the Court should adopt it.

Have Gun, Can't Travel: The Right to Arms under the Privileges and Immunities Clause of Article IV

Abstract: David Bach is a former Navy SEAL, a commissioned officer in the Naval Reserve, an experienced firearms instructor, and an attorney. He is now employed by the Department of Defense, where he holds a Top Secret security clearance. This model citizen resides in the Commonwealth of Virginia, where he is licensed to carry a concealed weapon. Bach periodically takes his wife and three young children to upstate New York by car in order to visit his parents. This lengthy journey goes through several high-crime areas in New York, and he wants to carry a defensive firearm on his person, either openly or concealed, in case of a criminal assault during one of these trips. New York issues licenses to carry firearms to its own citizens who meet certain statutory criteria, and to nonresidents who have their principal place of employment or business in the state, but not to visitors like Bach. If he carried his personal weapon with him, he would be committing a felony. The Second Circuit rejected Bach's claim that New York law violates the Privileges and Immunities Clause of Article IV. This brief essay argues that Bach's Privileges and Immunities claim is valid, and that the nature of the claim throws an interesting light on a provision of the Constitution whose importance exceeds the amount of attention it has received from the Supreme Court.