Guns

The Second Amendment vs. the Seventh Amendment: The Terminal Decay of the Seventh Amendment and the Revival of the Second Amendment

The Second Amendment right is vibrant and prominent for many citizens. The Seventh Amendment right has shriveled to a husk of its former self.

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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.

NEXT: Today in Supreme Court History: October 22, 1915

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  1. You can trace the decay of the jury system, civil AND criminal, to one simple factor: Lawyers control all aspects of the legal system, and regard the exercise of any power in the courtroom by anybody not a lawyer with horror. Never mind the excuses they might produce for neutering juries, this is what is really driving things.

    Since lawyers are largely united in opposition to the jury system, and non-lawyers have very little leverage indeed over how the legal system operates, the result was inevitable. If it weren't for explicit constitutional guarantees that are difficult to rationalize away, trial by jury would likely have already been abolished in America.

    1. Put it up for a constitutional amendment (which at this point you have to because its already incorporated against the states). My guess is repealing the jury trial wont be popular enough to get rid of it.

      1. I don't want it repealed. I've actually jokingly proposed an amendment to precede each of the amendments in the Bill of rights with, "Simeon says," or maybe add, "and, PS: We really mean it!" at the end of each.

    2. As always, conspiracy minded analysis from someone who doesn't know what he doesn't know.

      1. As opposed to your bile-full content-free eruptions which reveal merely that you have nothing to say that anyone need pay any attention to.

    3. You're crazy Brett. Plaintiff's lawyers, and criminal defense lawyers, both like juries.

      1. They like neutered juries.

  2. " Skyrocketing crime rates in the late 1960s provoked restrictions on guns, especially handguns and carrying in public. "

    Again, you're relating the excuse, not the cause.

    America has always had a certain amount of gun control, directed at disarming disfavored racial and ethnic minorities. These gun control laws were enacted by politicians who were members of majority groups, in solidarity with the citizenry. (NOT a defense of these laws, just explicating the dynamic at play.)

    What happened in the 1960's was the combination of two things.

    First, an increasing trend for the political class to be distinct from the general population, a largely closed, self-perpetuating group. You started to see the rise of political dynasties and politicians in high office who'd never had any other real career. So our government fell into control of people who were of the political class first, and any solidarity with the general population came second.

    And, the triggering event: Assassination of President Kennedy, and a few years later his brother the Senator.

    The political class started to see an armed populace as a threat to themselves. The disfavored group being disarmed became everybody else, no longer defined on ethnic or racial terms, but instead whether you were part of their social circle. It was politicians vs everyone else, not the law abiding vs career criminals, or whites vs blacks.

    This also played a part in the revival of the 2nd amendment, because by dramatically expanding the targets, they dramatically expanded the population with an interest in resisting gun control. Being a law abiding member of the majority was no longer a defense, so the law abiding majority found they needed a new defense, a revived 2nd amendment. And fought for it.

    1. Third item: Blacks started to argue for gun control instead of gun rights. Legacy black civil rights leaders saw guns as an equalizer, as a way to fight back against the lynch mob. See Ida Wells. Post 1960s leaders (Panthers nonwithstanding) blamed guns for the crime in the black community. Guns make an easier target than rampant fatherlessness and welfare dependency.

    2. I just wanted to comment one more time to say that that is really is a genius insight.

      It's no longer gun control to disarm black former slaves, or in Cali gun control to disarm Chinese tongs, or NY's Sullivan Law to disarm Italians, etc. etc. It's gun control no longer to disarm the non-elites *in general*.

      While much of the commentary on this blog is rather boring lately, and the blog posts included, there are some real gems here, and I'm glad I come by every once and awhile.

    3. I mean to say "It’s gun control to disarm ALL the non-elites *in general*.

    4. You started to see the rise of political dynasties

      More nonsense from Mr. Dunning-Kruger. What kind of historical ignorance does it take to assert that political dynasties started to rise in the 1960s? What kind does it take to assert that the rise of an elite political class separate from the general population started in the 1960s, rather than going into decline then? Does Brett think that party officials meeting in smoke-filled rooms picked assembly-line workers and bus drivers as their nominees?

      1. That's funny, I just comment on what a great insight the commentator made and you're insulting his intelligence. huh.

        To your point about political parties. I am not 100% in alignment with Brett. The reforms to the primary process, which started with the Dems after party members wanted Eugene McCarthy but party insiders didn't, leading to incredible dissatisfaction and reforms giving the wider electorate the ability to have a real say in their nominee DID change things to a more "pro-gun" direction.

        Today, you have to be pro-gun to get the Texas primary vote, otherwise you will not be a GOP nominee in a national election. Even if it is a bit of lie, like Romney. On a state by state level, this has happened as well, because that's what the party members in the public wanted on that issue, no compromise with gun controllers.

        Likewise, you see this partisan divide, driven by the post 1960s reforms to the party primary process, on a host of issues in both parties. Abortion for the left, for starters.

      2. Career politicians of any sort were not the norm at the federal level until fairly recently.
        According to the Congressional Research Service, the average length of career for a Representative was 3-4 years - meaning on average, a Representative was re-elected no more than once - up until the 20th century. It didn't hit the modern 10+ years of service (6+ terms) until (prepare to be shocked) the 1960s.
        The Senate actually averaged 1.5 terms until the Civil War. Then it jumped to almost 2 terms until... the 1960s. It's currently past 3 terms, about 20 years, years in the Senate on average.
        Incidentally, almost 50% of Senators served previously in the House these days, up from 20% in WW2.

        I think Brett greatly underestimates the local political class, but at the federal level, the professional historians studying Congress have made clear that his basic description of a political elite class arising in the modern era is basically correct.

        And of course, since you are an expert political historian, rather than another Dunning-Krugerer internet rando, you must already know all this, right?

        1. Younger people tend to just assume that things have always been the way they've experienced. While geezers like me have been around long enough to see enough change to be shed of that belief. And maybe have studied some history along the way.

  3. This piece made me think of traffic court. Where I live traffic cases are no longer criminal so defendants do not have the rights of criminal defendants. But because traffic court did not exist c. 1776, they do not have the rights of civil defendants either. So you don't have the right to a fair trial. You are literally presumed guilty -- the ticket itself is prima facie evidence.

    1. this. Get rid of a jury trial and all the other "procedural" rights the Lerner complains about, and the prima facie that you are guilty is that the police arrested you after a lengthy investigation.

      1. ...and the prima facie that you are guilty is that the police arrested you after a cursory investigation.

        FTFY

  4. Lerner is probably from another country and fails to appreciate how deeply culturally ingrained the four boxes of liberty are: Soap, ballot, jury, and ammo.

    Jury system remains a check on the legal system. "Efficiency" was never the goal. Sure there are better ways to convict people, if we get rid of those pesky procedural rights.

    The fundamental problem with the legal system is the proliferation of nuisance laws, regulations, and class action lawsuits. We could go into depth into the whole industry around marketing and generating class action lawsuits. Judges are no better with scientific evidence than juries.

    1. Jury system remains a check on the legal system.

      WRT criminal cases, I agree. We need more, not fewer, checks on prosecutors.

      But isn't the post about juries in civil cases?

      1. The line between civil and criminal regulations has become (maybe always was) blurry. The EPA for example can impose both civil and criminal penalties - come to your business, shut you down forever, impose penalties, and put you in jail. They even have a SWAT team. Defendants are often embroiled in parallel civil and criminal investigations. If we took away civil case protections, think about the implications for big govt agencies enforcement.

      2. The federal govt already abuses the relatively expansive civil procedures for discovery which they then can use to some degree in criminal cases. I am not even sure we have enough protections for civil cases. The EPA, FDA, USDA, ... , conducting parallel civil and criminal cases for the same action, then using civil discovery to further criminal prosecutions raises pretty severe due process concerns.

  5. At least current jurisprudence on the Seventh Amendment pays some respect to the language of the amendment, whereas on the Second Amendment it does not.

    1. Well, you're right: That "shall not be infringed" IS being mostly ignored. They treat it as though it said, "Shall not be utterly obliterated."

      But the 7th doesn't fare any better: The courts have totally blown off that $20 threshold, just as they ignored the "all" in the 6th amendment.

      1. The "right" referred to in the Second Amendment is not the same "right" of individual gun ownership as people think of it today.

        1. Well, sure. It's an individual right, has been all along despite a historically brief fad in the legal community to deny that.

          The modern development is the bifurcation of civilian and military arms that happened after the Supreme court upheld the NFA in Miller. Prior to that military and civilian arms were interchangeable, any advances in one market quickly were adopted in the other.

          Once the Supreme court upheld the NFA, the military and civilian markets started diverging, because civilians faced ever escalating obstacles in buying arms similar to those the military were using.

          Which is deeply ironic, because Miller lost due to not proving his gun was suitable for military use... The lower courts set out to stand that holding on its head.

          So now the right to be armed in the same way as a soldier has been perverted into a right to be armed only with arms deemed inferior to military weapons.

          1. You seem to imagine that you are not conversing with a gun grabbing nut (captcrisis) who thinks that the 2A is only about the National Guard.

    2. Look at you, pretending that you have any grasp at all of the language in 2A.

  6. Hard to speak of the "resilience" of the individual right to bear arms theory when it was declared only in 2008 by the most conservative Supreme Court in 70 years.

    1. All you're doing here is displaying your ignorance of 2nd amendment history.

      No, I can't even say that, because you've been present in threads where that claim was proven wrong.

      All you're doing here is displaying your willingness to falsify 2nd amendment history.

      I don't see why I should even post the proof you're wrong, since you've already seen it many times. But here's an example anyway:

      An excerpt from Dred Scott.

      "For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

      And that was in 1857.

      1. By the Civil War it was almost universally understood that the right to keep and bear arms was an *individual right* separate from militia service. This shows in that Dred Scott quote.

        The temporary death, until the 20th Century, of "incorporation" and the idea of the 14th Amendment protecting citizens from state encroachment against their rights was not the Slaughter House cases as most law professors note, but Cruickshank, where SCOTUS said that since the 2nd Amendment didn't protect citizens from state infringement on that right.

  7. It's incorrect to measure the importance of the civil jury by the minimal percentage of cases that are resolved by a civil jury verdict. As the authors acknowledge, settlements occur "in the shadow" of the jury trial that awaits the parties if they don't settle. Expansive modern discovery in civil cases means that both sides have a better understanding of the strengths of the adversary's case and the vulnerability of their own case, and this, too, encourages settlement. The current system seems to work.
    What would happen to settlements if the civil jury were replaced by some more "scientific" or "sophisticated" mode of decision-making? (And most cases have to be settled, or they would drag on forever whatever form of trial awaits the unsettled dispute -- and remember that Jarndyce v, Jarndyce was a suit in Chancery, supposedly an expert tribunal.) I suspect that some lawyers would learn to be better than others in influencing or predicting the decisions of the "expert" juridical panels and this, rather than the uncertainty of a jury verdict, would influence settlements. I haven't been so favorably impressed by the reliability of "experts" that I would feel comfortable giving them a greater role in deciding civil disputes.

  8. Reminds me that most criminal defendants never make it to a jury trial in the first place, because of tremendous pressure from prosecutors to accept a plea bargain.

    Maybe we'd have a better appreciation, and demand, for criminal jury trials if they were more accessible.

    I'd argue for more ****procedural**** limits on prosecutors.

    As in, say, for the same offense, the prosecutor can try only 1 charge or severity.

    Or every plea deal had to be approved by a judge that would not hear the case. (That may not be a serious impediment. Never mind.)

    Or a prosecutor is allowed to offer a finite number of plea agreements per week. Spend them carefully, Counsel.

    It may lead us down the same rabbit hole that other procedural rights take us.

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