The Second Amendment vs. the Seventh Amendment: Procedural Rights and the Problem of Incorporation – Reason
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
- Second Amendment doesn't cover convicted felons caught trying to exchange drugs for guns at a South Boston skating-rink parking lot, judge concludes -... - July 18th, 2025 [July 18th, 2025]
- Missouri sheriffs form alliance to protect Second Amendment rights - First Alert 4 - July 18th, 2025 [July 18th, 2025]
- GrabAGun, a Mobile-Focused Online Firearms Retailer and Defender of the Second Amendment, Completes Business Combination with Colombier II and Will... - July 16th, 2025 [July 16th, 2025]
- Missouri sheriffs form alliance to protect Second Amendment rights - KY3 - July 16th, 2025 [July 16th, 2025]
- Guns & Moses Reminds Us All About the Importance of Faith and the Second Amendment - The Daily Signal - July 16th, 2025 [July 16th, 2025]
- Nathan Magsig: Why Our Second Amendment Resolution Matters to the People of the Central Valley - GV Wire - July 10th, 2025 [July 10th, 2025]
- College student claims professor wouldnt grade her paper on the Second Amendment - WWNY - July 10th, 2025 [July 10th, 2025]
- College student claims professor wouldnt grade her paper on the Second Amendment - WAFB - July 8th, 2025 [July 8th, 2025]
- The Department of Justice Started a Second Amendment Task Force | An Official Journal Of The NRA - Americas 1st Freedom - July 8th, 2025 [July 8th, 2025]
- College student claims professor wouldnt grade her paper on the Second Amendment - Action News 5 - July 6th, 2025 [July 6th, 2025]
- College student claims professor wouldnt grade her paper on the Second Amendment - WABI - July 4th, 2025 [July 4th, 2025]
- The Second Amendment And The Federal Prohibition On Unlawful Drug Users From Possessing Firearms Analysis - Eurasia Review - July 4th, 2025 [July 4th, 2025]
- Two illogical GOP issues: The Electoral College and Second Amendment - The Durango Herald - June 28th, 2025 [June 28th, 2025]
- Second Amendment 'setback': Gun tax cuts stripped from Trump's 'big, beautiful bill' - Fox News - June 28th, 2025 [June 28th, 2025]
- Mass Shooting Prevented Because of Second Amendment, Expert Says - The Daily Signal - June 28th, 2025 [June 28th, 2025]
- An Official Journal Of The NRA | Why This UFC Fighter Believes in the Second Amendment - Americas 1st Freedom - June 24th, 2025 [June 24th, 2025]
- InfluenceWatch Podcast #369: Suppressors, the Second Amendment, and the Fight Against the NFA - Capital Research Center - June 24th, 2025 [June 24th, 2025]
- Cornyn Praises Second Amendment Provisions Included in Senates One Big Beautiful Bill - Senator Cornyn (.gov) - June 20th, 2025 [June 20th, 2025]
- DOJ Says AR-15s, Ammo Magazines Protected by Second Amendment in Seventh Circuit Brief - The Reload - June 20th, 2025 [June 20th, 2025]
- Chair Khatiwada submits report on Nepal Citizenship (Second Amendment) Bill in House - myRepublica - June 20th, 2025 [June 20th, 2025]
- Coders are saving the Second Amendment: DIY guns and digital resistance - The Hill - June 20th, 2025 [June 20th, 2025]
- Senate Version of One Big Beautiful Bill Could Hand a Big Win to Second Amendment Supporters - The New York Sun - June 20th, 2025 [June 20th, 2025]
- SCOTUS Turns Down Pair of Second Amendment Cases | An Official Journal Of The NRA - Americas 1st Freedom - June 12th, 2025 [June 12th, 2025]
- GOA Celebrates Supreme Court Smackdown of Mexican Gun Control Lawsuit: A Massive Victory for U.S. Sovereignty and the Second Amendment - Gun Owners of... - June 12th, 2025 [June 12th, 2025]
- New Political Thriller Explores Parental Vigilantism and the Second Amendment in the Wake of Tragedy - PR Newswire - May 22nd, 2025 [May 22nd, 2025]
- Second Amendment Victory: Trump Administration Overturns Forced Reset Trigger Ban - SOFREP - May 22nd, 2025 [May 22nd, 2025]
- Legal Adults, Limited Rights: The Second Amendment Fight For 1820-Year-Olds - concealedcarry.com - May 5th, 2025 [May 5th, 2025]
- Making the Fourth Amendment the New Second Amendment - The Assembly NC - May 5th, 2025 [May 5th, 2025]
- Federal Government Urges S. Ct. to Take Second Amendment Case - Reason Magazine - May 5th, 2025 [May 5th, 2025]
- Trumps Second 100 Days and the Second Amendment | An Official Journal Of The NRA - Americas 1st Freedom - May 5th, 2025 [May 5th, 2025]
- This Bill Doesnt Ban GunsIt Dismantles the Second Amendment Another Way - The Truth About Guns - May 5th, 2025 [May 5th, 2025]
- NRAs John Richardson admits he cant stand listening to Trump despite praising Second Amendment support - The Mirror US - April 30th, 2025 [April 30th, 2025]
- Trump administration says machine guns arent protected by Second Amendment - Washington Times - April 30th, 2025 [April 30th, 2025]
- Colorado Escalates its War on the Second Amendment : News Article - Independent Institute - April 25th, 2025 [April 25th, 2025]
- Stop the Second Amendment insanity | Letters to the editor - Sun Sentinel - April 25th, 2025 [April 25th, 2025]
- Labrador Backs DOJs Second Amendment Task Force, Joining Other States - Idaho Dispatch - April 25th, 2025 [April 25th, 2025]
- Voices of the Second Amendment Launches Live from NRA Annual Meetings & Exhibits - NRA Women - April 21st, 2025 [April 21st, 2025]
- Oswego Village Board approves second amendment of econoimic incentive agreement with Freddie's Off the Chain, increasing total grant funding to... - April 21st, 2025 [April 21st, 2025]
- Bills Protecting Veteran Second Amendment Rights Hit The House And Senate - The Truth About Guns - April 21st, 2025 [April 21st, 2025]
- Feenstra Leads Legislation to Protect Second Amendment Rights of Law-Abiding Renters and Tenants - Mix 107.3 KIOW - April 21st, 2025 [April 21st, 2025]
- Second Amendment advocate fires back against controversial gun bill: This is going to cost lives in the long run - MyNorthwest.com - April 3rd, 2025 [April 3rd, 2025]
- Restoration of Second Amendment Rights After They Are Lost - The Truth About Guns - April 3rd, 2025 [April 3rd, 2025]
- House Republicans Honor Second Amendment Promises, Advance Key Legislation - National Shooting Sports Foundation - March 28th, 2025 [March 28th, 2025]
- Congress poised to strengthen Second Amendment rights with national concealed carry reciprocity - Washington Times - March 28th, 2025 [March 28th, 2025]
- Senators team up to support proposed legislation protecting veterans Second Amendment rights - Washington Examiner - March 28th, 2025 [March 28th, 2025]
- Governor vetoes local lawmakers Second Amendment Protection Act bill - County 10 News - March 28th, 2025 [March 28th, 2025]
- Second Amendment Roundup: Court Seems Disposed to Rule for S&W and Against Mexico - Reason - March 13th, 2025 [March 13th, 2025]
- Governor Murphys Latest Plan is to Tax the Second Amendment Rights of New Jerseyans - Shore News Network - March 5th, 2025 [March 5th, 2025]
- Second Amendment Protection Act changes head to governor's desk - Wyoming Tribune - March 5th, 2025 [March 5th, 2025]
- WY: TELL THE GOVERNOR Support Second Amendment Protections! - Gun Owners of America - March 5th, 2025 [March 5th, 2025]
- Second Amendment Protection Act changes head to governor's desk - Wyoming News Now - March 5th, 2025 [March 5th, 2025]
- Gun Advocates Demand Results After Second Amendment Executive Order - MSN - March 5th, 2025 [March 5th, 2025]
- Could The Washington Post Go Pro-Second Amendment? | An Official Journal Of The NRA - America's 1st Freedom - March 1st, 2025 [March 1st, 2025]
- Second Amendment Concerns Raised After Long Island Village Bans All Gun and Ammo Sales - MSN - March 1st, 2025 [March 1st, 2025]
- Trumps bold move to strengthen the Second Amendment - Washington Times - February 27th, 2025 [February 27th, 2025]
- After York County shootings, its time to update the Second Amendment [letter] - LNP | LancasterOnline - February 27th, 2025 [February 27th, 2025]
- NSSF Praises South Dakotas Gov. Larry Rhoden for Protecting Second Amendment Privacy - National Shooting Sports Foundation - February 27th, 2025 [February 27th, 2025]
- Fear not the endless presidency: The Twenty-second Amendment - Convention of States Action - February 27th, 2025 [February 27th, 2025]
- New Florida bill would strengthen Second Amendment rights at colleges and universities - Campus Reform - February 27th, 2025 [February 27th, 2025]
- How USAID Funded the War on the Second Amendment | An Official Journal Of The NRA - America's 1st Freedom - February 14th, 2025 [February 14th, 2025]
- Bills affect homeless, addresses wildfires, makes OK a Second Amendment sanctuary state - Yahoo - February 14th, 2025 [February 14th, 2025]
- Trump Issues Executive Order: Protecting Second Amendment Rights Where are we now? - Firearms News - February 12th, 2025 [February 12th, 2025]
- Executive Order 14206Protecting Second Amendment Rights - The American Presidency Project - February 12th, 2025 [February 12th, 2025]
- Trump is protecting the Second Amendment - Washington Times - February 12th, 2025 [February 12th, 2025]
- Trump Signs Executive Order Strengthening Second Amendment | An Official Journal Of The NRA - American Hunter - February 12th, 2025 [February 12th, 2025]
- Executive Order Seeks to Protect Second Amendment After Prior Administration - Turning Point USA - February 12th, 2025 [February 12th, 2025]
- Executive Order on the Second Amendment, which doesn't need any help - Daily Kos - February 12th, 2025 [February 12th, 2025]
- NRA Statement on President Trumps Executive Order Protecting Second Amendment Rights - NRA Women - February 9th, 2025 [February 9th, 2025]
- President Trump signs executive order 'protecting Second Amendment rights' - Buckeye Firearms Association - February 9th, 2025 [February 9th, 2025]
- Trump starts unwinding Biden regulations that infringe on Second Amendment rights of Americans - Must Read Alaska - February 9th, 2025 [February 9th, 2025]
- White House Wields Executive Power to Bolster Second Amendment: - Hoodline - February 9th, 2025 [February 9th, 2025]
- DeSantis Second Amendment Summer is more about his aspirations than Floridas budget | Opinion - Miami Herald - February 5th, 2025 [February 5th, 2025]
- Dueling Gun Groups Strike Truce To Push Wyoming Second Amendment Rights Bill - Cowboy State Daily - February 5th, 2025 [February 5th, 2025]
- Trump AG Pick: I Am an Advocate for the Second Amendment, but I Will Enforce the Laws of the Land - The Reload - January 19th, 2025 [January 19th, 2025]
- Second Amendment advocates skeptical of Pam Bondi - Washington Examiner - January 19th, 2025 [January 19th, 2025]
- Federal Judges (Still) Have No Earthly Idea What to Do With the Supreme Courts Second Amendment Cases - Balls & Strikes - January 19th, 2025 [January 19th, 2025]
- Tuberville, Britt reintroduce pro-second amendment Constitutional Concealed Carry Reciprocity Act - Yellowhammer News - January 19th, 2025 [January 19th, 2025]
- Donald Trump Jr. says younger people are getting into the Second Amendment amid GrabAGun SPAC deal - Fox Business - January 9th, 2025 [January 9th, 2025]
- GrabAGun, a Mobile-Focused Online Firearms Retailer Defending the Second Amendment, to Become a Public Company through a Business Combination with... - January 9th, 2025 [January 9th, 2025]
- Secretary Gray Calls on Wyoming Legislature to Protect Second Amendment Rights by Repealing Gun Free Zones - Sheridan Media - January 9th, 2025 [January 9th, 2025]