Showing papers by "Nelson Lund published in 2016"

Antonin Scalia and the Dilemma of Constitutional Originalism

Abstract: Antonin Scalia has had a very significant and healthy impact on the way people talk about American constitutional law. Before he took his seat on the Supreme Court, it was barely respectable to treat the Constitution, understood to mean what it meant to those who wrote and ratified it, as the law. Constitutional law was - as every sophisticated lawyer, jurist, and academic understood - whatever the courts said it was, and the written document had been superseded in significant part by a “living constitution” that reflected the progressive political agenda of the modern left. Thanks largely to Justice Scalia’s forceful and eloquent voice, originalism is now so respectable that even those who seek to move the law ever farther to the left frequently find it prudent to pose as expositors of the Constitution’s original meaning. Scalia’s substantial effect on the terms of debate in constitutional law, however, is not likely to be matched by a comparable influence on the future of the law itself. His effort to alter the Supreme Court’s approach to constitutional adjudication faced serious obstacles that will continue to frustrate Justices - and observers like me - who share Scalia’s desire for a revival of respect for the written Constitution. Most obviously, political realities could easily prevent presidential appointments from producing a majority of like-minded Justices any time soon, if ever. There are, however, some more interesting obstacles that have deep historical roots. This essay explores those obstacles before considering two examples that suggest why Scalia’s originalism is unlikely to make a decisive contribution to the reformation in constitutional law that he sought.

Second Amendment Standards of Review in a Heller World

Abstract: Introduction I. The Supreme Court's Heller Decision II. The D.C. Circuit's Heller II Decision A. The Majority Opinion B. The Kavanaugh Dissent III. Applying Heller A. The Rights and Wrongs of the Majority Approach in Heller II B. A Better Approach: Eze11 v. City of Chicago Conclusion INTRODUCTION In 2008, in District of Columbia v. Heller, the Supreme Court invoked the Second Amendment to invalidate a law that forbade almost all citizens from possessing a handgun or other operable firearm. Since that decision was announced, the lower courts have resolved a large number of Second Amendment challenges to less restrictive gun control laws. This Article reviews and evaluates the principal debates that have arisen in the federal courts, focusing primarily on a sharply divided panel decision from the D.C. Circuit and a majority opinion from the Seventh Circuit. The three opinions considered in this Article articulate the most important extant alternative interpretations of the Supreme Court's Heller opinion. The Article concludes that the approach taken by the Seventh Circuit is superior to either of the approaches offered in the D.C. Circuit case. I. THE SUPREME COURT'S SELLER DECISION For a long time, gun rights advocates have hoped that the Supreme Court would begin reviewing gun control laws under the standard of "strict scrutiny," which requires the government to demonstrate that its regulations are narrowly tailored to serve a compelling governmental interest. (1) Gun control advocates would prefer "rational basis" review, which requires the government only to articulate some legitimate purpose that the legislature could conceivably have sought to serve with its regulations. (2) In District of Columbia v. Heller, (3) the seminal case involving a general ban on the possession of any handgun or other operable firearm, the United States urged the Court to adopt a standard of "intermediate scrutiny." Relying primarily on a First Amendment free speech case upholding a ban on write-in voting, the federal government urged the Court to remand the case with instructions to balance the degree of the burden on constitutionally protected conduct against the strength of the government's regulatory interests. (4) When the Solicitor General pressed this point at oral argument, Chief Justice Roberts expressed his skepticism: Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these--how this restriction and the scope of this right looks in relation to those? I'm not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case? (5) When the Court issued its opinion in Heller, Justice Scalia's majority opinion rather pointedly declined "to articulate some very intricate standard." (6) But neither did the Court adopt the approach that Chief Justice Roberts suggested at oral argument. Notwithstanding the opinion's extended examination of the historical record before and after the ratification of the Second Amendment, it did not "determine the scope of the existing right that the amendment refers to." (7) The Chief Justice clearly was referring to the scope of the right to bear arms as it was understood in 1791, and the Court's opinion does pay lip service to that standard. …

The Right to Arms and the American Philosophy of Freedom

Abstract: The right to keep and bear arms is a vital element of our liberal order, but its philosophic basis is no longer appreciated by American elites. The left rejects the understanding of politics on which our nation was founded, and conservative intellectuals have been remarkably uncomfortable with the right to arms. George Will and Charles Krauthammer, for example, have advocated repeal of the Second Amendment, and conservative pundits have generally stayed silent in the face of such attacks on the Constitution.People who do not understand why they should defend the right to arms are not likely to be its most effective defenders, and ignorance about the philosophy underlying our free institutions is among the least excusable failings of public intellectuals. Conservative pundits constantly complain about the erosion of individual liberty by bureaucratic government, about the enervating effects of the nanny state, and about the suffocating atmosphere of euphemisms and repressed resentment imposed by the political correctness police. If they had a better understanding of John Locke, William Blackstone, Cesare Beccaria, Alexis de Tocqueville, and every one of our founding fathers, these opinion leaders would not display an effete abhorrence of what Krauthammer calls “America’s frontier infatuation with guns.” Our nation’s founding philosophy was not infected with some silly romanticism about guns or an outmoded frontier mentality. It was based on the reality of human nature and on reason, neither of which has changed since the eighteenth century.