Guns

The Second Amendment vs. the Seventh Amendment: Procedural Rights and the Problem of Incorporation

Recognizing the difference between substantive and procedural rights helps enormously in understanding the battles over applying the first eight amendments of the U.S. Constitution to the states. Procedural rights have failed; not only have they not improved procedures, they have made things worse.

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This is the fourth in a series of five posts based on my piece in the Northwestern Law Review comparing the Second and Seventh Amendment. The last post described the distinction between substantive and procedural rights, and the importance of that distinction. In this post, I look more closely at the problem of procedural rights and explain how they block important reforms.

The U.S. Supreme Court's struggles over whether to apply the first eight amendments of the Constitution to the states illustrate the problem with procedural rights. Applying one of these rights to the states is called incorporation. Early on, the federal courts shut down any notion of applying the first eight amendments to the states, as explained in Chief Justice John Marshall's 1833 opinion in Barron v. Mayor of Baltimore. After ratification of the Fourteenth Amendment in 1868, the question became more acute.

Understanding the difference between substantive and procedural rights helps enormously in explaining the otherwise seemingly chaotic decisions about incorporation. The U.S. Supreme Court first incorporated substantive rights. In 1897, the Court applied the Takings Clause against the states, and in 1925, the free speech and free press rights of the First Amendment. The process of incorporating substantive rights has continued, right up to the decision to incorporate the Second Amendment in McDonald v. City of Chicago in 2010. The Court understood these substantive provisions to be fundamental to a free society.

But the procedural provisions long resisted incorporation. Some justices, especially Benjamin Cardozo, Felix Frankfurter, and the younger John Harlan, understood that the states needed flexibility to develop effective systems of adjudication. In Palko v. Connecticut in 1937, for example, Justice Cardozo wrote for the Court refusing to incorporate the Double Jeopardy Clause against the states. Connecticut allowed the prosecution to appeal an acquittal. Although he did not use the terms, Justice Cardozo drew a significant distinction between substantive rights and most procedural rights. Describing "freedom of thought, and speech," he wrote, "Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom." Therefore it was properly applied against the states. On the other hand, the rights to jury trial, grand jury indictment, the prohibition against double jeopardy, and the privilege against self-incrimination "are not of the very essence of a scheme of ordered liberty…. Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them." Justice Cardozo took an informed comparative view, one that allowed the states flexibility.

Likewise, in Wolf v. Colorado in 1949, Justice Frankfurter wrote the Court's opinion incorporating the substantive Fourth Amendment right to be free from unreasonable governmental searches and seizures. He declared that right to be "basic to a free society." But he refused to incorporate the procedural exclusionary rule that the Court had developed for the federal courts. Justice Frankfurter explained that the methods of checking violations, the remedies for violations, and the means of enforcing those remedies "are all questions that are not to be so dogmatically answered as to preclude the varying solutions which spring from an allowable range of judgment." Again, flexibility was to be permitted to the states on matters of procedure.

And in Duncan v. Louisiana in 1968, Justice Harlan vigorously argued in dissent against incorporating the criminal jury right: "The States have always borne primary responsibility for operating the machinery of criminal justice within their borders, and adapting it to their particular circumstances." Interfering with state procedure through incorporation of federal constitutional provisions was a mistake: "neither history, nor sense, supports using the Fourteenth Amendment to put the States in a constitutional straitjacket with respect to their own development in the administration of criminal or civil law."

Unfortunately, Justice Harlan was fighting a losing battle. By 1968, the Court was launched on its procedural rights revolution. Justice White wrote for the Court in Duncan, incorporating the right to criminal jury trial against the states. He came up with a test for incorporation—whether a particular right is "necessary to an Anglo-American regime of ordered liberty"—which he buried in a footnote. The test was disingenuous because it did not explain the cases at all, though Justice White claimed that it did. Recently-created procedural rights unknown in England were said to meet this test. Such a test would be unworkable even if the Court were really trying to apply it. The "Anglo-American" regimes of "ordered liberty"—that is, procedural systems—were constantly changing, in important ways.

Most likely, what was really behind Duncan and many other 1960s cases was concern about the treatment of black defendants. (Duncan was a 19-year-old black man charged with assaulting a white boy.) The constitutional procedural-rights revolution was essentially part of the civil rights movement, and importantly linked to the Cold War. The United States could hardly claim to be a beacon of liberty for the free world if it treated black defendants badly.

But insisting on certain procedural rights turned out to be a terrible way to address that concern. The good intentions of the justices backfired, because they ignored the law of unintended consequences. Insisting on jury trial has resulted in the denial of any form of adjudication. Jury trials are long, expensive, and unpredictable. The state and federal systems have turned to plea bargaining instead, and applied ever-greater pressure on defendants to make that happen. Today, in the federal system, over 97% of criminal convictions are the result of a guilty plea, with no trial of any kind, jury or bench. Hundreds of thousands of black men—and others—have gone to prison through plea bargains, without any adjudication at all.

Specific procedural rights have failed. Not only have they not improved procedures for criminal defendants; they have made things worse.

Despite its criminal procedure binge, even now, the U.S. Supreme Court is reluctant to incorporate all procedural rights against the states. The Fifth Amendment right to grand jury indictment and the Seventh Amendment right to civil jury trial have not been incorporated. At least to some extent, the federal courts seem to have understood that procedure needs to be flexible, to adjust.

The experience of other countries shows the wisdom of flexibility concerning procedure.

Unlike substantive provisions, specific procedural provisions are not compatible with a wide variety of legal systems. Many are deeply incompatible. As an example, the independent jury has proved to be deeply incompatible with civil law, or inquisitorial, systems. By independent jury, I mean groups composed entirely of laypeople who deliberate and make adjudicatory decisions apart from professional judges. The independent jury is at odds with the goals of reasoned decision-making and full appeal that are so important to civil law systems. Inquisitorial systems have tried to adopt the independent jury for criminal cases, and it has failed. Germany, Italy, and France abandoned the independent jury in favor of a mixed panel of professional judges and lay jurors. Japan also uses a mixed panel. In theory, Spain and Russia today have independent criminal juries for serious cases. But in practice, judges and lawyers in those countries have greatly diminished jury trial, by prosecutors undercharging and courts using abbreviated procedures. The use of civil juries is so alien to civil law systems that almost none of them adopted it, or even tried to.

The civil jury has also proved to be incompatible with the current legal system of every other common law country. In England, Canada, Australia, and New Zealand, the civil jury has been virtually eliminated. Those legal systems developed independent and reasonably competent judiciaries. Under the circumstances, the legal profession and members of the general public thought that the use of civil juries was an unnecessary expense and delay. (See Renée Lettow Lerner, The Surprising Views of Montesquieu and Tocqueville about Juries: Juries Empower Judges, 81 Louisiana Law Review 1, 49 (2020).) Loss of the civil jury doesn't seem to have done these countries any harm. One would be hard pressed to argue that their civil justice systems are worse than that of the United States. Alexander Hamilton was right. The trend in favor of limiting civil juries continued, to the point of elimination. Free from the constraint of constitutional rights to civil jury trial, other common law countries have been able to make appropriate reforms.

The next and final post shows the results of the weakness of procedural rights, and the relative resilience of substantive rights. It describes the terminal decay of the Seventh Amendment, and the revival of the Second Amendment.

NEXT: The Academic Freedom Podcast #6 on Tenure in Georgia

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  1. The last incorporated part of the Bill of Rights is the Excessive Fines Clause of the Eighth Amendment (Timbs v. Indiana, 2019)

  2. But insisting on certain procedural rights turned out to be a terrible way to address that concern. The good intentions of the justices backfired, because they ignored the law of unintended consequences. Insisting on jury trial has resulted in the denial of any form of adjudication. Jury trials are long, expensive, and unpredictable.

    This is nutpicking. You mentioned several procedural rights earlier. You don't think the protections against double jeopardy protect defendants? And how about the exclusionary rule? Defendants win lots of motions to suppress illegally seized evidence, sometimes resulting in dropped cases.

    And how about Miranda, whose warnings are now read in stationhouses all over the country and which results in a lot of defendants asking for a lawyer and not incriminating themselves?

    And speaking of the right to counsel, how about Gideon? You really think defendants would be just as well off without having lawyers? And how about Strickland v. Washington- is having a lawyer who sleeps through the trial or something, effective representation for the defendant?

    You picked the one right- the jury trial- where it's really tough to measure the impact (although even here, it's worth noting many criminal defense lawyers call a bench trial a "slow guilty plea").

  3. idk, maybe the right against self incriminating is "procedural," bit explain to me why the government should be able to force you to incriminate yourself.

    1. You could conceivably have a system that deals with illegally obtained evidence without the exclusionary rule as we have it. You could allow the evidence (the means of how it is obtained does not necessarily alter the validity of the evidence itself) to further justice while also prosecuting as a separate event the violation of the defendant's rights. A cop could face discipline for obtaining evidence in an underhanded way. But that evidence may also still be used to convict a murderer (which furthers justice for the murder victim AND justice for the defendant who still has rights as opposed to forgoing justice for the murder victim for the sake of the defendant's rights).

      The point being that procedural rights should not really be thought of as rights at all and should not be forced upon various jurisdictions. They may be good systems to reach justice. They may be the best. But they are not necessarily fundamental to justice and as such forcing one logistical process upon all systems limits the ability to potentially better serve justice with a different procedure.

      I don't get the idea that the author is speaking out against the procedures themselves per se... just the incorporation of them based on the belief they are the best, purest, and necessary systems for reaching justice (because as he points out... this may not he the case and flexibility or an opportunity to change would be preferable).

      1. Just realized this post should be a response to Dillan above. Sorry for any confusion.

      2. I like your idea in theory but even with the present 4A warrant requirement, there are PLENTY of violations.

        At least 4A provides some level of procedural protection.

        And we would absolutely have to get rid of QI otherwise it would be open season on all civilians.

      3. In practice, what you are going to end up with is highly unfair procedures. States don't waive sovereign immunity enough, and would probably limit damages claims even if they did. And some procedural rights protect valuable substance- e.g., Miranda is a procedure, but it prevents wrongful convictions that result from coerced confessions, so it has a substantive end.

        1. As far as I can tell, the US the only country with a strong exclusionary rule (at least in theory.) Now, the US should be exceptional in some respects! We have by far the strongest freedom of speech regime, and I think that is good!

          But per the post, free speech is substantive, exclusionary procedural. Procedural rights exist to safeguard substantive ones ... what happens if they don't do a good job of it, or someone creates a better plan to safeguard it?

          But surely we can learn something from other countries handling of this? It so happens that despite having the strongest exclusionary rule in the world, we also have some of the weakest privacy laws! Isnt one of the purposes of the 4th amendment to protect privacy in a criminal context? Perhaps another system would be better?

          At the very least, here is my position: You cannot have stare decisis and a statement that "this is what works in practice so let's go with it" The courts can create practical rules to satisfy 4th amendment inquiry, but if it turns out later those rules don't work or they are ineffective or times change or a government says, hey court, we have a plan to change our entire system so we won't have an exclusionary rule but the 4th amendment is satisfied and look we passed it ... a court should be able to say, yep said plan meets 4th amendment scrutiny so thats totally fine.

          I'm not being original or anything, this is essentially what Posner proposed regarding the exclusionary rule, have a government come up with something and if it is sufficient to meet 4th amendment scrutiny, fine.

          But how can both be justified? On one hand, sure, let's have the courts create practical rules. On the other, if someone did a study saying actually, the exclusionary rule causes all sorts of distortions and doesn't actually do a very good job safeguarding the 4th ... why not scrap it on that basis instead of invoking stare decisis?

      4. "You could allow the evidence (the means of how it is obtained does not necessarily alter the validity of the evidence itself) to further justice while also prosecuting as a separate event the violation of the defendant’s rights."

        The reason the Court eventually came up with the exclusionary rule was that, in practice, that prosecution never actually happened. Prosecutorial discretion was invoked basically every single time. It was either exclude the evidence, or ignore the right altogether.

        1. To Brett and everyone above...

          That my suggestion is not perfect is not relevant to the author's point. The point is that by incorporating the current system, we lose the ability to consider other methods by which to reach justice and security of substantive rights.

          It is conceivable that my suggested system would work. Therefore it is not a statement of holy writ that the current exclusionary rule should never be challenged. Which is very different from saying the freedom of speech shouldn't be challenged in the same way.

          We incorporated procedural rights thinking they were the safeguard of substantive rights. But in doing so tied our hands when we get to now... a time in which these procedural "rights" are causing problems with the enjoyment of substantive rights.

          1. "It is conceivable that my suggested system would work."

            Look, your suggested system has already been tried, and didn't work. It's not working is why we ended up with the exclusionary principle.

            1. I think that assumes that there's only one possible version of sparkstable's suggestion.

              Presumably the reason why prosecution of the violation of the defendant's rights never happens is that the prosecutor and the alleged violator are on the same team.

              But if we can have a Special Counsel appointed to investigate the President, we can surely have a special counsel appointed to investigate police violations. So, for example, if the judge conducting the trial with the dodgily acquired evidence thinks there's prima facie evidence of a violation of the defendant's rights, he can allow the evidence as evidence but refer the relevant police officers / prosecuting attorneys to a special prosecutor who can investigate and prosecute the case (in front of a different judge, naturally.)

    2. Take away the right to self-incrimination, and all it means is that the state can have you take the witness stand and answer truthfully if you did or did not commit the crime. It doesn't mean the state can torture you into confessing to a crime that you did not commit. When you really think about it, for thousands and thousands of years, I'm sure it would have been unthinkable to people that a person accused of a crime would not have to explain himself in front of the trier of fact.

      1. Take away the right to self-incrimination, and all it means is that the state can have you take the witness stand and answer truthfully if you did or did not commit the crime. It doesn’t mean the state can torture you into confessing to a crime that you did not commit.

        This isn't true. Read Miranda. People criticize the Warren Court on various grounds, but one thing it was very good at is detailing the practical effects of bad doctrines. In the case of self-incrimination, the reality is without strict police procedures, the basic police/prosecutorial calculus is that getting convictions outweighs procedural considerations. So you end up with widespread use of incredibly coercive tactics. And that is all set forth in the Miranda opinion.

        So there isn't this happy utopia where there are no coerced confessions but you don't need a strong self-incrimination right. To prevent one, you need the other.

        1. When I am unfortunate enough to be watching a British crime drama, the cops are always advising suspects that they have the right to remain silent, but their refusal to cooperate in a police investigation may be held against them in court.

          In a world where the cops were always scrupulously careful and competent and incorruptible, this might work, but such a world would be so wonderful there probably wouldn't be any crime in the first place. Meanwhile we're stuck in this world.

  4. The author seems to suggest that abolishing criminal juries would reduce the number of plea bargains. Are there any studies on this?

    1. I agree that I didn't really understand this point from the author, and I think it needs further clarification. Just because criminal defendants are provided the right to a jury trial, doesn't mean they are forced to exercise that right. If they want a bench trial they can have it (although most would rather have a jury). Most states would probably provide for a jury trial in their own constitutions even if not required to do so by federal law, but in the event that the right to jury trial was not incorporated against the states and a particular state did not provide for jury trials, a criminal defendant would still have a huge pressure to enter into a plea deal instead of leaving his/her life in the hands of the judge.

    2. I think a criminal defendant is more likely to take a plea deal if there were no juries, because with a jury he may believe he can convince at least one of the jurors of his innocence. A prosecutor might be less likely to offer a plea, believing a bench trial to be an easy win.

    3. This is a good question. I have often wondered (but not enough to come to an opinion) if we would be best served to remove plea deals and force states to go to trial. By having only one avenue of obtaining a conviction they can't offer the "10 years if you plead, maybe life if we go to trial" bit. There's just the one option meaning there isn't a "better" option for defendants.

      And yes... money, time, etc would be a concern. But simply in terms of "justice" without consideration of cost... would it be better to always force the state into a "put up or shut up" position?

      1. My concern with this approach is that understaffed prosecutor's offices would simply not be able to handle the workload of taking every alleged criminal's case to trial. Thus, they would be forced to simply select the 5% of cases that were the worst or strongest (or whatever other criterion they would use--probably politically motivated) and take those to trial, and simply decline to prosecute the other 95% of cases, letting many actual criminals go free.

        1. My support for this approach is that understaffed prosecutor’s offices would simply not be able to handle the workload of taking every alleged criminal’s case to trial. Thus, they would be forced to simply select the 5% of cases that were the worst or strongest (or whatever other criterion they would use–probably politically motivated) and take those to trial, and simply decline to prosecute the other 95% of cases.

        2. Well, maybe if you're charging too many people with crimes to actually hold that many trials, you've made too many things illegal...

  5. _In Re Winship_ is another attempt to be defendant-friendly that may have backfired. The prosecution must prove every element of a crime beyond a reasonable doubt. In the interests of justice certain presumptions are not allowed.

    Consider three types of DUI laws:

    1. If you drive with alcohol in the blood, you are guilty of DUI.
    2. If you drive with alcohol in the blood, you are presumed guilty of DUI and the burden shifts to you to show lack of impairment.
    3. If you drive with alcohol in the blood, the jury decides without the aid of a presumption whether the evidence is sufficient.

    The middle one is a mandatory presumption which courts will call a violation of rights, but it is clearly intermediate between the first and the third which are allowed.

    Complicating matters even further, the state can create affirmative defenses and the courts will sometimes pretend they are different from the presumptions that are no longer allowed.

    (And while I'm on the subject, we have an ongoing experiment that disproves the supposed need to test drivers without a warrant so the BAC level could be used in court. Most prosecutors stopped relying on breath test machines because the common brand being used was deemed unreliable.)

  6. This is so poorly written you actually cite Frankfurter as backing up your theory?
    ‘The history of American freedom is, in no small measure, the history of procedure.' Malinski v. People of State of New York, 324 U.S. 401, 414, 65 S.Ct. 781, 787, 89 L.Ed. 1029 (1945)

    Are you even a lawyer? Setting procedures for states doesn't "straight jacket" anyone, it sets a floor for proper procedures to protect the accused. This paper is academic garbage.

    1. IANAL but from where I am sitting it seems you missed the boat.

      He isn't saying that the procedure is necessarily bad. But by limiting our options of procedure we are doomed to live with bad procedures (if/when they cause unintended consequences). We elevated good ideas of practice to "rights" which sets in motion conflicts of competing ends. If you have a right to a jury trial but the system is set up so that it is better to plead guilty... then perhaps the set up needs to be changed. But the set up is now elevated to a "right" meaning change is not just difficult but often discarded out of hand as "radical" or "wrongthink."

      1. But this isn't an argument against incorporation, it's an argument against written constitutions.

  7. "Some justices, especially Benjamin Cardozo, Felix Frankfurter, and the younger John Harlan, understood that the states needed flexibility to develop effective systems of adjudication."

    You understand things, when the author agrees with you. If she doesn't, you merely claim them.

    "Insisting on jury trial has resulted in the denial of any form of adjudication. Jury trials are long, expensive, and unpredictable. The state and federal systems have turned to plea bargaining instead, and applied ever-greater pressure on defendants to make that happen."

    In the case of a right the author actually valued, this would have been recognized, not as evidence that the right was impractical, but that it was being denied...

  8. "Insisting on jury trial has resulted in the denial of any form of adjudication. Jury trials are long, expensive, and unpredictable. The state and federal systems have turned to plea bargaining instead, and applied ever-greater pressure on defendants to make that happen. Today, in the federal system, over 97% of criminal convictions are the result of a guilty plea, with no trial of any kind, jury or bench. Hundreds of thousands of black men—and others—have gone to prison through plea bargains, without any adjudication at all."

    This seems like a cause/affect issue which the author is missing.

    For the "hundreds of thousands of black men" thing, that's simply because of over-criminalization (e.g. marijuana), racial bias among law enforcement, and the socio-economic status of many black communities.

    Additionally, law enforcement, forensics, and criminal science are highly technical (and obviously when done right), highly effective in gathering evidence and identifying suspects.

    Add in ubiquitous cameras capturing a lot of movement (e.g. the Boston Marathon bombers, and they could follow their movements in and around Boston by reviewing restaurant and subway cameras, etc.), and law enforcement is getting really good at catching criminals.

  9. I don't think the US Supreme Court will proclaim the incorporation of the 7th Amendment, but I can't say for sure.

    I'm fairly sure they'll *never* incorporate the grand jury clause. I regret this, because a ringing incorporationist opinion, with suitable rhetoric about the role of grand juries in protecting the innocent, might put some spine into the grand jurors and make them more willing to question at least the more "out there" prosecutions that are attempted to be foisted on them.

    But I hasten to add - the opponents of grand juries have won this one - they will never be imposed by the US Supreme Court. I would simply add that we should be spared the hand-wringing about "none of these serious criminal charges are ever considered by a jury!" That's as you wish it. Savor your victory.

  10. Doesn’t a position that the phrase “due process of law” should interpreted as covering any procedural rights, only substantive rights and nothing else, seem - how shall I put this — ever so slightly atextual?

    Professor Lerner’s view may be good policy. Maybe the States should be bound only by due substance of law, never due process. Perhaps the constitution should be amended and the written policy changed to reflect Professor Lerner’s view. Maybe the Due Process clause should be interpreted to be a nullity and substance brought in as Priveleges and Immunities.

    But in the meanwhile, amidst all these most wonkish policy considerations, shouldn’t what the written constitution actually says, at least the clause we are claiming to be construing, count for even a little bit?

    1. It's wildly atextual. Due process was entirely about procedural rights, and nothing else.

      The substantive rights were all supposed to be covered by the Privileges and Immunities clause, before the Slaugherhouse court gutted it.

      1. You have a right to due process... but do you have a right to one, and only one process to determine justice?

        If we incorporate the type of court system we have now with competing lawyers (the word escapes me) is that really a good idea? Do you really have a RIGHT to that type of trial and not an inquisitive court? Or do you have a right to 1) justice which is provided by 2) following a fair process (no matter the form it takes so long as it is fair and just in its process)?

        When I read "Due Process" I think of a fair trial versus an unfair one (but the particulars are irrelevant). I think of an impartial judge, not a biased one. Of honest prosecutors, not hacks. Of a system that serves justice wherever she may be, not the state or the defendant solely.

        The process we are due is a fair one, not "this" one instead of "that" one.

        1. OK, but then there's the whole thing about the privileges and immunities of U. S. citizens.

          This is a situation where, rather than making up our own traditions or looking to traditions elsewhere, we follow what have been recognized as Americans' privileges and immunities from the beginning of the Republic. I believe this would include the rights listed in the first 8 amendments (though not exclusively those rights). While it would be nice if the text of the 14the Amendment were more specific, when faced with this broad liberty-affirming clause, the most plausible reading would give that clause (a) a broad interpretation which (b) aligns with traditional American rights.

          The Slaughterhouse Cases may have grossed out the court since New Orleans was a plague spot and the slaughterhouse monopoly was justified as a public-health measure. One can certainly see the force of this argument, but to throw in extra remarks about the narrowness of privileges and immunities strikes me as uncalled for. They could have just said that privileges and immunities can be regulated in the name of public health (though this would not end the controversy, especially among libertarians - but it would have been less damaging than the sweeping opinion they issued.

          1. "I believe this would include the rights listed in the first 8 amendments (though not exclusively those rights).

            Sure, and you can read the Congressional debates on the 14th amendment, they confirm that. Even Taney, prior to the 14th amendment, gave a pretty good list of privileges and immunities, in the course of announcing how horrible it would be if blacks were regarded to be citizens.

            " but to throw in extra remarks about the narrowness of privileges and immunities strikes me as uncalled for. "

            You have to look at the Slaughterhouse cases in context. They didn't throw that in there just at random, the damage was intended. Gutting the 14th amendment was part of the process of ending Reconstruction, and the Court of the time wanted it ended.

      2. Any time I see a piece of writing purporting to discuss the United States Constitution, and the author fails to cite any source older than my grandfather, I know the argument can be safely ignored.

  11. The primary question about due process and gun permits has less to do about the right to any particular gun permit, but more about can the government maintain a discretionary permitting system that is essentially "rigged" to produce the desired results.

    (I would argue that the Second Amendment requires the government to maintain some type of permitting system that would allow private, law abiding citizens to carry a firearm without demonstrating some kind of special need, but that is not part of the analysis required here. Let's just assume for the sake of argument that the government has decided to maintain a gun permitting system whether or not the constitution compels such a system.)

    The issue with most of these "may issue' permitting schemes is they are designed to look like it will provide some type of fair system in which someone who qualifies will be considered for a permit, but in practice delivers an extremely limited, essentially "no issue" result except for people with special considerations or a particular class of individuals. These "rigged" permitting systems violate due process in of itself in that the government should be required to maintain a fair process and implicit in that is to NOT have prefabricated results. You can't have any type of due process if the adjudicator knows they will just find you guilty regardless of the hearing outcome.

    That is my main issue with these gun permitting systems like NY of NJ maintain. And I think even without Second Amendment concerns, the federal courts should not tolerate this type of governmental conduct.

  12. Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them

    An excellent jab from Justice Cardozo. There can be very few things the modern judge fears more than the humiliation of being thought narrow or provincial.

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