The Volokh Conspiracy
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This is the fifth and final post of a series based on my comparison of the Second and Seventh Amendment in the Northwestern Law Review. The last post discussed the problems with procedural rights and showed how that analysis helps to explain the U.S. Supreme Court's struggles over incorporation. This post illuminates the differences between procedural and substantive rights by comparing the fate of the right to civil jury trial and the right to keep and bear arms.
The vanishing civil jury
As I discussed in the last post, a particular legal procedure is necessarily one part of an entire legal system. The scope and function of any particular procedure can change dramatically depending on changes in the surrounding legal system. We have seen that with respect to criminal jury trial. The same is true of civil jury trial.
Changes in the civil justice system since the late eighteenth century have been deep and many. Elaborate pretrial discovery, rising cost of litigation, permissive joinder of claims and parties, consolidation of cases into class actions and multi-district litigation, lengthy jury selection, ever more complicated claims, an explosion of scientific and statistical evidence, summary judgment procedure—all these and more have taken a toll on civil jury trial. The cost and unpredictability of civil jury trials drive parties to settlement. Currently, fewer than 1% of civil cases reaching disposition in federal court are decided by jury trial.
And yet, the Seventh Amendment states, "In Suits at common law … the right of trial by jury shall be preserved." It turns out that truly preserving a right to civil jury trial would require eliminating many features of modern litigation. (See Renée Lettow Lerner, The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial, 22 William & Mary Bill of Rights Journal 811, 879 (2014).)
Despite the scarcity of civil jury trials today, constitutional rights to jury trial still have a large effect on the legal system. This is for two main reasons. First, settlement negotiations take place "in the shadow" of the jury. (See Renée Lettow Lerner, The Surprising Views of Montesquieu and Tocqueville about Juries: Juries Empower Judges, 81 Louisiana Law Review 1, 53 (2020).) That is, the result of negotiations depends partly on what the parties guess that a jury will do.
Second, the constitutional right to a civil jury blocks the development of more efficient and accurate methods of adjudication. Because of federal and state constitutional rights to a civil jury trial, the United States cannot adopt many features of civil adjudication used in civil law countries. In a previous series of posts for the Volokh Conspiracy, I explained the many reforms that would be possible if we were free from the constraint of civil juries.
The civil jury does have a role to play in those unfortunate places where much of the judiciary is incompetent or deeply biased. But in many places, the advantages of a properly-designed juryless system considerably outweigh any disadvantages.
The resilience of the right to keep and bear arms
Evidence for the robustness of substantive rights, as opposed to the frailty of procedural rights, is that substantive rights can be and have been resurrected. This happened with the Second Amendment, after a period of being moribund. It's much less likely that a procedural right would be resurrected. As we've seen, resuscitating a procedural right would require radical change in the legal system.
Substantive rights protect certain behaviors, or protect against certain actions, that can occur regardless of the particular legal system. There is core behavior that is protected, or prohibited. There are, of course, difficulties in determining exactly what that protected or prohibited behavior is. Questions of translation are inevitable. Changes in technology, in particular, raise important interpretive issues. Internet blogs and social media have joined the printing press; texts and emails have largely taken the place of letters; we now have semi-automatic rifles as well as flintlock muskets and rifles. The scholarly literature is full of descriptions of various possible methods of constitutional interpretation. My point is that a substantive right has some meaning to interpret, to translate—a meaning that exists apart from the particular type of legal system.
This is not to say that substantive rights are always secure. Substantive rights are vulnerable too; they can be undermined, for example, through court interpretations and regulations piling excessive burdens on the exercise of the right.
Despite these vulnerabilities, I suggest that interpreting substantive rights is easier than interpreting procedural rights. Restrictions on a substantive right can usually be more readily identified, and their effects more easily understood. The effects are typically more direct. In a sense, a judge is investigating a narrower sphere. A judge does not have to cope with all the possible ramifications of rules in an entire legal system.
The revival of the Second Amendment is somewhat contingent, by no means assured of lasting. But at least it was possible.
What happened? Skyrocketing crime rates in the late 1960s provoked restrictions on guns, especially handguns and carrying in public. But even with the new restrictions, crime continued to rise. By the early 1980s, scholars began to question both the effectiveness and the legality of gun prohibitions. Stephen Halbrook and others argued that the Second Amendment guarantees an individual right to arms, and that the Fourteenth Amendment was intended to make the Second Amendment enforceable against the states. (See my Northwestern article, p. 310.) Decades later, the U.S. Supreme Court confirmed both of those principles in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). We'll see whether the Court affirms a Second Amendment right to carry a gun outside the home in New York State Rifle & Pistol Association v. Corlett, set for oral argument on November 3.
Meanwhile, apart from this academic and judicial recovery, millions of Americans have been rediscovering the importance of the right to keep and bear arms. Following Florida in 1987, a wave of states allowed almost all law-abiding adults to get a concealed carry permit. And now 21 states are "constitutional carry" states, meaning that no permit is required to carry a firearm in public.
Americans of all races and in all areas are showing by their actions what they think about the right to keep and carry arms. They are doing it. Gun sales have been soaring, especially to first-time buyers. For 2020, the FBI's National Instant Criminal Background Check System (NICS) reported that it conducted 21 million background checks for the sale of a firearm. That was a 60% increase over 2019's figure of 13.2 million. In 2020, there were estimated to be 8.4 million first-time gun buyers. Over forty percent of new gun buyers are women. And a survey of gun retailers reports that gun sales to black Americans were up fifty-eight percent over the previous year, the largest increase for any demographic group.
Summing it up
We have, on one hand, a substantive right, the Second Amendment, that entails individual responsibility and is readily understandable. On the other, a procedural right, the Seventh Amendment, involving deeply complicated decision-making with almost no accountability. These differences have consequences. Many persons seem eager to take advantage of their right to keep and bear arms. But, in practice, few exercise their right to civil jury trial. The Second Amendment right is vibrant and prominent for many citizens. The Seventh Amendment right has shriveled to a husk of its former self.
Alexander Hamilton would not be surprised. He explained that procedures need to adapt to changing conditions.
The procedural rights guaranteed in the Constitution are piecemeal. The Constitution does not set out a complete code of criminal procedure, or a code of civil procedure—nor should it. In a code of procedure, each part is, or ought to be, carefully calibrated with respect to all the others. The Constitution, on the other hand, attempts to preserve particular pieces of what was an entire common law system. That common law system itself was in continual flux.
In contrast, substantive rights are more fixed. In the U.S. constitutional system, substantive rights embody the purposes of a liberal government. And the Second Amendment right to keep and bear arms is at the core of these purposes. Classical liberal thinkers such as John Locke, William Blackstone, Cesare Beccaria, and Adam Smith all linked freedom from political oppression with self-defense and personal safety. (See Renée Lettow Lerner, The Second Amendment and the Spirit of the People, 43 Harvard Journal of Law & Public Policy 319, 324 (2020).) The right to keep and bear arms, they declared, was necessary for both. As Blackstone put it, this right is the "right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression." (See 1 William Blackstone, Commentaries *139.) This is the most fundamental right of all.