Showing papers by "Nelson Lund published in 2009"

The Second Amendment, Heller, and Originalist Jurisprudence

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.

Judicial Duty and the Supreme Court’s Cult of Celebrity

Abstract: Judging from recent confirmation hearings, there is now a consensus that Supreme Court Justices should be humble servants of the law, highly respectful toward precedent and without personal agendas of any kind. Few informed observers expect this to happen. After describing some of the institutional factors that operate to discourage adherence to the traditional ideal of judicial duty, this article proposes four statutory reforms that could help the Justices stick a little closer to the promises they are expected to make, and do make, at their confirmation hearings.First, Congress should require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. This should lead to fewer self-indulgent separate opinions, more coherent and judicious majority opinions, and more reason for future Justices to treat the resulting precedents respectfully.Second, Congress should require the Court to hear at least one case certified from a circuit court for every federal question case they choose from their discretionary docket. This would reduce the temptation to assemble a docket consisting largely of interesting or high-profile cases, and encourage the Justices to grapple with more of the important but unglamorous issues vexing the lower courts.Third, Congress should forbid law clerks to draft judicial opinions, and move them to the office of the Court’s Librarian, where they would do legal research for the Court rather than for individual Justices. Truly humble and old-fashioned judges should study the precedents themselves, discuss the law with their colleagues (rather than with their handpicked votaries), and write their own opinions.Fourth, Congress should require Justices to serve part of their time on lower federal courts, as they did for the first century of the republic’s existence. Restoring “circuit riding” would give the Justices some on-going experience with playing the role of a modest judge whose decisions are subject to appellate review and who is often required to interpret and apply muddled Supreme Court opinions.If serving as a Supreme Court Justice were to become a full-time, non-delegable job with fewer opportunities for personal aggrandizement, the Justices would behave more like judges than legal celebrities, Presidents would have more incentive to appoint genuinely able people, and fewer Justices would insist on staying in the saddle past the time when they can even mount the horse.

The Second Amendment, Heller, and originalist jurisprudence

Abstract: District Of Columbia v. Heller gave the Supreme Court an opportunity to apply a jurisprudence of original meaning to the Second Amendment's manifestly puzzling text. Notwithstanding the Chief Justice's decision to assign the majority opinion to Justice Scalia, the Court squandered the opportunity. 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 non-originalist in some respects-that Heller should be seen as an embarrassment for those who joined the majority opinion. 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 exponents. Language: en

Resolved, Presidential Signing Statements Threaten to Undermine the Rule of Law and the Separation of Powers

Abstract: This short piece, part of a debate with Peter Shane, argues that presidential signing statements do not threaten the rule of law and the separation of powers. It discusses the theory and practice of signing statements, and concludes that President Obama rightly rejected the position taken by the American Bar Association when it denounced President Bush for his use of signing statements.

Heller and Nonlethal Weapons

Abstract: Two important opinions in the past decade, both written by Justice Antonin Scalia, have sought to apply originalist jurisprudence to constitutional issues raised by technologies that were unknown at the time of the founding. In Kyllo v. United States, the Court held that using sense-enhancing technology to obtain information about the interior of a home, even without a physical intrusion, constitutes a Fourth Amendment search, at least if the technology is not “in general public use.” This rule appropriately preserves the privacy that could only have been violated by a trespass in 1791. In District of Columbia v. Heller, the Court endorsed a superficially similar rule under which weapons are protected by the Second Amendment only if they are “in common use” today. This dictum disserves the purpose of the constitutional right to arms, for it allows the government to create Second Amendment exceptions almost at will, by preventing disfavored types of weaponry from remaining or coming into “common use.”Heller’s dictum threatens to frustrate the right of civilians to possess new types of nonlethal weapons that may be superior to firearms for the constitutionally protected purpose of self defense. We propose that the Court repudiate this dictum, and adopt a different rule that is consistent with Kyllo’s sound approach to emerging technologies: Just as Kyllo adopted a presumption that the police may employ surveillance technologies that are in widespread use by civilians, so the courts should adopt a presumption that civilians may employ self-defense technologies that are in widespread use by the police.

Anticipating the Second Amendment Incorporation: The Role of the Inferior Courts

Abstract: In District of Columbia v. Heller, the Supreme Court finally decided that the Second Amendment really does protect the right of the people to keep and bear arms, and that this includes at least the right to keep a handgun in the home for self defense. Understandably, all eyes have turned to the next logical question. Is the right to arms protected only from federal infringement, as in Heller, or is it also good against state and local governments? Test cases have already been filed challenging Chicago's handgun ban, which is similar to the regulation invalidated in Heller. The "incorporation" issue - whether the Fourteenth Amendment protects the right to keep and bear arms from infringement by the states - may be virtually dispositive in those cases, and it will be a threshold issue in many others as well. This short essay reviews the principal precedents that the courts will have to confront. Part II concludes that the lower courts, though not the Supreme Court, are probably barred by precedent from finding that the right to keep and bear arms is protected by the Fourteenth Amendment's Privileges or Immunities Clause. Part III shows that existing Supreme Court precedent points very strongly in favor of incorporation under substantive due process. Part IV argues, on the basis of existing precedent, that the inferior courts need not wait for the Supreme Court to reach this conclusion. They can best perform their role in our hierarchical judicial system by treating the Supreme Court's modern incorporation jurisprudence as law. If they do, they should conclude that the right to keep and bear arms is protected against infringement by the state governments, just as it is protected against the federal government.

Heller and Nonlethal Weapons

Abstract: Two important opinions in the past decade, both written by Justice Antonin Scalia, have sought to apply originalist jurisprudence to constitutional issues raised by technologies that were unknown at the time of the founding. In Kyllo v. United States, the Court held that using sense-enhancing technology to obtain information about the interior of a home, even without a physical intrusion, constitutes a Fourth Amendment search, at least if the technology is not "in general public use." This rule appropriately preserves the privacy that could only have been violated by a trespass in 1791. In District of Columbia v. Heller, the Court endorsed a superficially similar rule under which weapons are protected by the Second Amendment only if they are "in common use" today. This dictum disserves the purpose of the constitutional right to arms, for it allows the government to create Second Amendment exceptions almost at will, by preventing disfavored types of weaponry from remaining or coming into "common use." Heller's dictum threatens to frustrate the right of civilians to possess new types of nonlethal weapons that may be superior to fire-arms for the constitutionally protected purpose of self-defense. The Authors propose that the Court repudiate this dictum, and adopt a different rule that is consistent with Kyllo's sound approach to emerging technologies: Just as Kyllo adopted a presumption that the police may employ surveillance technologies that are in widespread use by civilians, so the courts should adopt a presumption that civilians may employ self-defense technologies that are in widespread use by the police. Language: en