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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 incorporationwhether 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 systemswere 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 menand othershave 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 Rene 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.

Continued here:
The Second Amendment vs. the Seventh Amendment: Procedural Rights and the Problem of Incorporation - Reason

Following my piece in the Northwestern Law Review, the last post compared the individual accountability and understanding of responsibilities of gun owners and civil jurors. In this post, I turn to the second major difference between the Second and Seventh Amendments: the distinction between substantive and procedural rights.

Here some definitions are in order. For purposes of this argument, what is a substantive or a procedural right? The meaning of the terms "substance" and "procedure" are not always obvious. The line can be blurry. There will always be some degree of arbitrariness in drawing any legal line, including a line between substance and procedure. Also, a line between categories may be drawn in different places for different purposes.

For purposes of this framework for constitutional rights, substantive rules govern primary conduct outside litigation. That primary conduct may be either the citizen's or the government's. Clear substantive rules provide better guidance about what conduct is permitted and what is not. They improve knowledge of the law, and predictability of the system.

Procedural rules, by contrast, regulate the means by which government adjudicates certain disputes. Separate rules of procedure allow the procedural system to focus more precisely on efficiency and accuracy of adjudication. Again, this enhances knowledge of consequences and predictability. In short, the distinction between substance and procedure is important to the rule of law.

Not everything in the U.S. Constitution is a substantive or procedural right. The vast majority of the provisions of the U.S. Constitution are structural provisions; they set out the rules for establishing and running the federal government and its relations to the states and to foreign powers. Substantive and procedural rights are not structural in this sense.

Applying this distinction between substance and procedure, here is a table setting out the division among the provisions of the first eight amendments to the U.S. Constitution:

Division Among the Provisions of the First Eight Amendments to theU.S. Constitution

Some classifications in this table may seem surprising. Two special notes are in order. First, the Eighth Amendment bans on excessive fines and cruel and unusual punishments are classified as substantive rights. The punishment that may be imposed for crime has traditionally, and rightly, been understood as part of substantive criminal law, not procedure. In contrast, the method of sentencing is procedural.

Second, freedom from unreasonable searches and seizures, the first clause of the Fourth Amendment, is a substantive right. But, to a large extent, the U.S. Supreme Court has transformed that substantive right into a procedural right. This happened in the decision to require the exclusionary rule as a constitutional matter. Instead of the focus being on the substantive rightwas a search or seizure unreasonable?the focus is on whether evidence will be excluded from a criminal trial. But the U.S. Supreme Court has been slowly peeling away the procedural right of exclusion, so there is hope for a more substantive emphasis.

To elaborate further on the distinction between substantive and procedural rights, a "substantive" right does not purport to require a particular procedure in the legal system, and it is compatible with a variety of possible legal systems, including adversarial and inquisitorial systems. In contrast, a specific "procedural" right attempts to ensure the availability of a particular practice to an individual in a legal proceeding, or to require a government official in a legal proceeding to follow a particular practice. These provisions are not compatible with a wide variety of legal systems. They shape a legal system.

In this framework, the Second Amendment right to keep and bear arms is clearly a substantive right. It's compatible with a variety of legal systems, and does not affect the means of adjudication. On the other hand, the Seventh Amendment right to civil jury trial is not compatible with various legal systems and very much affects the means of adjudication. It's a procedural right.

At the end of Federalist No. 83, Hamilton issued a strong warning against constitutionalizing a right to civil jury trial. Concerning the civil jury, he explained, there was need for flexibility to accommodate "the changes which are continually happening in the affairs of society." England, as well as the American states, had reduced the use of civil jury trial, which suggested that its previous extent had been "found inconvenient." There was reason to suspect, he wrote, that this process of limiting the use of juries would continue. In the case of civil jury trial, Hamilton wrote, "I suspect it to be impossible in the nature of the thing, to fix the salutary point at which the operation of the institution ought to stop; and this is with me a strong argument for leaving the matter to the discretion of the legislature." It was better to rely on the structure of government for permanent effects, rather than particular rights. "Particular provisions, though not altogether useless, have far less virtue and efficacy than are commonly ascribed to them ."

But the Anti-Federalists rejected Hamilton's warnings about piecemeal rights and insisted on a constitutional right to civil jury trial. To avoid what he saw as a real danger of a second constitutional convention, James Madison drafted a series of amendments to the new Constitution that included a right to civil jury trial, in what became the Seventh Amendment. (See Rene Lettow Lerner, The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial, 22 William & Mary Bill of Rights Journal 811, 827-828 & n. 96 (2014).)

The danger that Hamilton warned aboutof putting a straitjacket on legislatures and blocking useful reformis powerful but subtle with respect to procedural rights. Substantive rights have a core that can be meaningfully interpreted and protected. They can exist independently of a particular government or a particular legal system. Thus the addition or subtraction of a substantive right does not alter the legal system, the means of adjudicating cases, as a whole. But procedural rights are different. Procedural rights do not have such an independent core because they are necessarily embedded in a whole system of legal procedure. They alter that system, and they depend on that system for their meaning.

The next post demonstrates that specific procedural rights are not compatible with all legal systems; they block reform. The U.S. Supreme Court's struggles over incorporation of federal constitutional provisions against the states reflect these problems with procedural rights.

Continue reading here:
The Second Amendment vs. the Seventh Amendment: The Distinction Between Substantive and Procedural Rights - Reason

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 liablenot 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 otherstates 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 usersand their ability to understand their responsibilitywith 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 jurorstwelveis 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 jurorsparticularly 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.

Excerpt from:
The Second Amendment vs. the Seventh Amendment: Accountability and Understanding of Gun Owners and Civil Jurors - Reason

DES MOINES, Iowa Three counties in Iowa became Second Amendment Sanctuaries this week. With county supervisors in Page, Taylor and Lucas counties approving their sanctuary county resolutions, 26 out of Iowas 99 counties are now Second Amendment Sanctuaries.

At this point, its become a job, in the greatest sense of the word, to keep track of how many communities are affirming their Second Amendment rights, Dave Funk, president of Iowa Firearms Coalition, said earlier this week in a statement after Page County Supervisors approved their resolution.

Guthrie, Dallas, and Benton counties also approved resolutions this month.

While we applaud, and encourage more of Iowas counties to pass their own resolutions, the speed at which local elected leaders are taking a stand against unnecessary federal overreach should send a clear message to Washington that Iowans will not accept any steps to infringe on their civil rights, Funk said in a released statement on Thursday.

A resolution declaring a county be a Second Amendment sanctuary does not negate federal law. Still, it does prevent local resources from being used to enforce measures that are at odds with the U.S. Constitution.

Heading into October, Iowa had 20 sanctuary counties: Adams, Carroll, Cedar, Chickasaw, Clarke, Buchanan, Decatur, Hardin, Humboldt, Jasper, Kossuth, Madison, Mills, Mitchell, Pocahontas, Ringgold, Van Buren, Washington, Wayne, and Winnebago.

SanctuaryCounties.comreported62.5 percent of the nations counties were Second Amendment sanctuary counties. This number has undoubtedly grown since their map did not include any county from Iowa. Currently, 26.2 percent of Iowas counties are now Second Amendment sanctuary counties.

Iowa Firearms Coalition, an affiliate of the National Rifle Association, has worked with local officials to encourage Second Amendment sanctuary status by providinga model resolutionthat county supervisors can adopt as their own.

The Iowa Legislature last sessionapproved for the second time a keep and bear arms amendment to Iowas Constitutionthat will go before voters in 2022. The Legislature also passed, and Gov. Kim Reynolds signed a billallowing permitless carry within the state.

The rest is here:
Number of Second Amendent Sanctuary Counties in Iowa Expands to 26 in October - The Iowa Torch

The legal conflict over abortion often divides Americans along predictable political lines. The fight over Texas' new anti-abortion law, however, has now united gun rights activists and abortion rights activists on the same side.

The Firearms Policy Coalition, a national gun rights outfit, filed a friend of the court brief at the U.S. Supreme Court yesterday in support of Whole Woman's Health, the abortion rights group that is leading the legal fight against Senate Bill 8, the sweeping Texas anti-abortion law that recently went into effect.

"The approach used by Texas to avoid pre-enforcement review of its restriction on abortion and its delegation of enforcement to private litigants," the gun rights group told the Supreme Court, "could just as easily be used by other States to restrict First and Second Amendment rights or, indeed, virtually any settled or debated constitutional right." The Firearms Policy Coalition "takes no position on whether abortion should be protected by the Constitution," the brief stated, "but believes that the judicial review of restrictions on established constitutional rights, especially those protected under this Court's cases, cannot be circumvented in the manner used by Texas."

S.B. 8 was designed by Texas lawmakers to allow the state to dodge accountability for its own law in federal court. How? By outsourcing the law's enforcement to private actors. According to S.B. 8, "any person" may sue "any person whoaids or abets the performance or inducement of abortion" and win a $10,000 bounty plus legal fees if the civil suit is successful. According to Texas, this scheme insulates the state from having to answer for its law in federal court since no state official is enforcing the law.

The Supreme Court declined to block the law from going into effect last month, with a 5-4 majority stating that while Whole Woman's Health had "raised serious questions regarding the constitutionality of the Texas law at issue," the law also raised "complex and novel antecedent procedural questions" that the majority did not wish to tackle at that time.

The Firearms Policy Coalition is now urging the Supreme Court to directly tackle those questions. "This case is important not because of its specific subject matter of abortion," the gun rights group stated in its brief, "but instead for Texas's cavalier and contemptuous mechanism for shielding from review potential violations of constitutional rights as determined by this Court's precedents." Make no mistake, the Firearms Policy Coalition warned, in what may be seen as a direct message to those members of the Court that care about the Second Amendment, "if pre-enforcement review can be evaded in the context of abortion it can and will be evaded in the context of the right to keep and bear arms."

That is exactly right. Texas' legal stunt against abortion will be copied by other states for use against other unpopular rights. Liberals are right to be worried about this law. Conservatives should be worried about it too.

Excerpt from:
Gun Rights Activists Join Abortion Rights Activists To Fight Texas Abortion Law - Reason