The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In yesterday's post, I laid out two fundamental differences between the Second and Seventh Amendments that I discuss in a piece in the Northwestern Law Review. In this post, I address the first difference: I compare the individual responsibility and understanding of responsibilities of gun owners and civil jurors.
Successful public policy depends on paying close attention to the accountability principle. Who is accountable, and how is that accountability enforced? Incentives matter. Gun owners and users have considerable incentives to behave responsibly; civil jurors have very few.
Incentives and knowledge of gun owners and users
Gun owners and users have direct, individual responsibility for their actions. They have an incentive to be careful because of concern for the safety of their families and friends. And if they do something foolish or malicious with a gun, they are individually liable—not just liable under civil law but also criminal law. They may be sued or prosecuted for what they do. Such individual liability has a way of focusing the mind.
This individual responsibility seems to influence behavior. Proponents of gun-carry bans predicted mayhem in the streets after Florida passed a permissive concealed-carry law in 1987. But these dire predictions have not come to pass. Permissive concealed-carry laws appear to have had no adverse effect on public safety. In 1995, the New York Times admitted that "Florida's experience has generally provided strong arguments for proponents of the right-to-carry bills …. Even those who opposed the measure said it had not led to the increase in violence they had feared…. [H]andgun-related homicides in Florida dropped by 29 percent from 1987 to 1992 …." (Sam Howe Verhovek, States Seek to Let Citizens Carry Concealed Weapons, N.Y. Times, Mar. 6, 1995, at A1, A14.)
The most solid data available on crime rates for legal gun owners in the United States concern holders of concealed-carry licenses. States generally keep track of how many licenses are issued, and the crimes that holders of these licenses commit. John Lott has made calculations using such data; I have followed his general method, but have used different data. There may well be differences between the crime profiles of carry license holders and those of other legal gun owners. But for now, the best data we have concerns carry permit holders.
The data show that concealed-carry permit holders are remarkably law-abiding. And there are a lot of them. According to statistics through April 30, 2021, Florida alone had 2,363,898 valid concealed-carry license holders. For the period from July 1, 2019 to June 30, 2020, Florida revoked 1,546 concealed-carry permits. Using these numbers, which are close in time, this is an annual revocation rate of just under 0.068%—hundredths of a percent. Florida requires revocation of these licenses for all felony convictions and certain misdemeanor convictions, and there is an option to revoke in certain instances such as mental or physical incapacitation. To provide some comparison, in 2019 the rate of violent crime in Florida as a percentage of the population was 0.382%. As I explain in the Northwestern Law Review article (pp. 282-83), the crime rates of carry-permit holders are low in other states as well. They may even be lower than that of police officers.
The data therefore suggest that legal gun owners and users are careful to obey the law. Furthermore, the legal responsibilities that gun owners and users have are relatively simple and readily understood by ordinary persons. It doesn't require an advanced degree to understand the notion of reckless endangerment, or the possible consequences of a toddler getting hold of a loaded gun. To be sure, certain requirements that governments impose can be precise, such as storing guns in a locked container unless they are equipped with certain safety devices. But again, these requirements are not difficult to understand.
This ability to understand, together with concern about consequences, affects not only crime rates, but accident rates. Gun accidents are extremely rare, except among a small, identifiable subset of the population. As Gary Kleck put it in his 1997 book Targeting Guns, p. 321, "Gun accidents are generally committed by unusually reckless people with records of heavy drinking, repeated involvement in automobile crashes, many traffic citations, and prior arrests for assault." Notwithstanding these reckless folks, accidental firearms deaths have been falling for the past four decades, including for children, and are today at an all-time low. (Nicholas J. Johnson, David B. Kopel, George A. Mocsary & Michael P. O'Shea, Firearms Law and the Second Amendment: Regulation, Rights, and Policy 18, 22-25 (2d ed. 2018).)
Civil jurors: collective decision-making and confusion
Contrast the individual responsibility of gun owners and users—and their ability to understand their responsibility—with that of civil jurors. Juries are designed precisely to avoid individual responsibility. English high court judge and criminologist James Fitzjames Stephen pointed out that the traditional number of jurors—twelve—is enough to preclude any notion of individual responsibility. The modern move to six jurors focuses responsibility somewhat more, but still leaves individual jurors with cover. The traditional requirement of unanimity further shields jurors from individual responsibility. Unless the parties agree otherwise, federal civil juries are still required to be unanimous. And jury deliberations occur in secret. Jurors do not give reasons for what they do.
Not only do jurors engage in purely collective, secret decision-making, they are entirely shielded from the consequences of a faulty decision. If a jury completely misunderstands the evidence, or the instructions on the law, or is improperly swayed by the emotional arguments of counsel, or flagrantly disregards the law or the evidence, there is no consequence to the jurors whatsoever. The judge congratulates the jurors on reaching a verdict and thanks them profusely for their service, regardless of whether they have botched the decision.
The consequences of civil jurors' lack of individual responsibility for their decisions are legion. One of the most salient has to do with giving away other peoples' money. Studies have consistently shown that the area of greatest disagreement between judges and jurors is damages. (See my Northwestern piece at p. 284, note 31.) Judges do have some individual responsibility for their decisions. Judges are named as the decision-makers, either alone or in a small group; must generally give reasons for their decisions; usually care about reversal by appellate courts; and often are concerned about their reputations among other judges and lawyers. Jurors lack almost all these characteristics. There is therefore some constraint on judges in awarding damages that there is not on jurors. Jurors are prone to the typical effects on most humans of spending others' money on someone else, with no accountability. The problem is well illustrated by the 2009 tweet of an Arkansas civil juror: "I just gave away TWELVE MILLION DOLLARS of somebody else's money!"
But even if a juror is soberly trying to do his or her level best, the task is daunting. Civil cases today are often complicated. Many studies have shown that jurors have trouble understanding the judge's instructions on the law, especially concerning damages. (See my Northwestern piece at p. 284, note 31.)
Jurors also can have difficulty understanding the facts. Much evidence today concerns complex transactions or advanced technology, and is in scientific or mathematical form. These topics and forms of evidence do not play to the strengths of ordinary jurors—particularly when one side has great incentive to remove anyone educated from the jury. And dueling partisan expert witnesses can add to juror confusion. Jurors are often baffled. As a result, litigators presenting a case to a jury go to great lengths to reduce the case to simple terms. In the process, the issues can be hopelessly distorted. For example, a litigant at trial in an intellectual property case might strongly emphasize a trade dress claim because that is easier for jurors to understand, and thus hope to win jurors' favor on a complicated patent infringement claim, which is really the most important issue in the case.
Unlike gun owners, civil jurors lack individual responsibility and have difficulty understanding the tasks that they are assigned. This lack of accountability and confusion were why civil juries were controversial at the time of the founding.
The next post dives into Alexander Hamilton's critique of the civil jury and concern about constitutionalizing such a right. This leads into the second major difference between the Second Amendment and the Seventh: the difference between substantive and procedural rights.