The Second Amendment vs. the Seventh Amendment: Substantive vs. Procedural Rights; Part 1: Similarities and Differences

October 18, 2021   |   Tags:

A few years ago, I mentioned to Eugene Volokh that I'm a firm supporter of the Second Amendment right to keep and bear arms, but believe the Seventh Amendment right to civil jury trial should be abolished. He was surprised; the amendments seemed to him to have strong affinities. And so they do. But I believe the differences conquer the similarities. With Eugene's usual curiosity, he suggested I write about why. Who can resist Eugene's enthusiasm? I explained the differences, in a piece I just published, The Resilience of Substantive Rights and the False Hope of Procedural Rights: The Case of the Second Amendment and the Seventh Amendment, 116 Northwestern Law Review 275 (2021). This series of five posts lays out my argument. It goes beyond comparison of these two rights, and makes broader claims about the differences between substantive and procedural rights.

We'll start with the similarities. Both the right to keep and bear arms and the right to civil jury trial potentially empower ordinary citizens. Both could act as a check on elites. With eloquence and vigor, Akhil Amar illuminated the populist origins of these rights in his books The Bill of Rights: Creation and Reconstruction (1998) and America's Constitution: A Biography (2005). In a 2013 article, Darrell Miller recommended parallel interpretation of the two amendments, arguing that Seventh Amendment jurisprudence can be a model for crafting a test for the Second Amendment. (Darrell A.H. Miller, Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second, 122 Yale L.J. 852 (2013).)

But there are crucial differences between these rights. I focus on two of them. The first is relatively straightforward—it concerns individual accountability, or the lack thereof, and the ability to understand responsibilities. Gun owners and users have direct individual liability for their actions. They are subject to criminal prosecution and civil liability for their behavior. This individual liability has a way of concentrating the mind. It seems to encourage decent behavior; holders of carry permits, in particular, are remarkably law-abiding. They may even be more law-abiding than police officers. Furthermore, their responsibilities are relatively easy for ordinary persons to understand.

In contrast, by design civil jurors lack individual responsibility. And they often have trouble understanding judicial instructions and complicated scientific or mathematical evidence. The result is unpredictable and wayward verdicts. These drawbacks are why the right to a civil jury trial was so controversial at the time of the founding. Alexander Hamilton's critique of the civil jury in Federalist No. 83 is little known, but deserves more attention. He and other founders thought that civil juries could not handle more complicated disputes. Hamilton was afraid that a constitutional right to civil jury trial would hobble the legislature in reforming the civil justice system.

The second difference is more complicated. It has to do with the distinction between a substantive right and a procedural right. Substantive rights, I hope to show, are potentially more durable and effective than detailed procedural rights. There is a solid core to a substantive right that is amenable to meaningful interpretation.

On the other hand, specific procedural rights are flimsy. The meaning of a particular procedure or legal institution wholly depends on the surrounding legal system. When other parts of the legal system change, the significance of that procedure or legal institution can change dramatically—it can essentially be nullified, even though nominally, it still exists.  Worse, procedural rights cause positive harm to the legal system by requiring clumsy work-arounds for problems and thwarting more direct solutions.

In the past few decades, the contrast between the Second and the Seventh Amendments has been striking. The right to keep and bear arms has had a remarkable resurgence, at both the popular and the judicial levels. This revival is not guaranteed to last—especially at the judicial level—but at least it can be done.

Meanwhile, the Seventh Amendment by its terms requires an originalist interpretation ("shall be preserved"), and the federal courts have indeed tried to apply a historical test. Even so, the attempt at preservation has been a failure. (See Renée Lettow Lerner, The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial, 22 William & Mary Bill of Rights Journal 811 (2014).) Courts have developed many mechanisms to avoid civil jury trial, and litigants have fled from it by settling. As of 2020, fewer than 1% of civil cases reaching disposition in federal court are decided by jury trial. Our civil justice system today is vastly expensive to litigants, full of delays, and unpredictable. Persons of modest means are almost entirely shut out of it, or suffer grievous disadvantages. The civil justice system could be greatly improved if we were free from the constitutional constraint of the civil jury. The Seventh Amendment, as Hamilton warned, illustrates the problems of constitutionalizing specific procedural rights.

In the next post, I compare the individual accountability and ability to understand their responsibilities of gun owners and civil jurors. These differences produce markedly different results.