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)
41 Pages Posted: 19 Oct 2021
Date Written: 2021
At first glance, there seem to be strong affinities between the Second Amendment and the Seventh Amendment. Both the right to keep and bear arms and the right to civil jury trial potentially empower ordinary citizens. Both could check elites.
But there are crucial differences between these rights. I focus on two of them here. The first is relatively straightforward; it concerns individual accountability—or the lack thereof—and the ability to understand responsibilities. Gun owners and users generally have individual responsibility for their actions, and the ability to understand their responsibilities. In contrast, by design civil jurors lack individual responsibility. And they often have difficulty understanding judicial instructions and complicated scientific or mathematical evidence.
Second, and more broadly, there are important differences between substantive and procedural rights. Substantive rights such as the Second Amendment have a core that can be interpreted and protected, regardless of the type of legal system. But specific procedural rights such as the Seventh Amendment are wholly dependent on the surrounding procedural system for their significance. Changes in the rest of the procedural system can easily subvert a specific procedural right, as we have seen with both criminal jury trials and civil jury trials. Substantive rights are potentially resilient; specific procedural rights are inherently fragile. Unfortunately, procedural rights, even when they have become almost obsolete, can thwart efforts to develop a more accurate and efficient method of adjudication.
Keywords: Second Amendment, Seventh Amendment, right to keep and bear arms, civil jury trial, incorporation of the bill of rights, legal history, individual rights, procedural rights, substantive rights, rule of law, legal theory, constitutional law
JEL Classification: K00, K10, K14, K15, K19, K40, K41, K49, N00, N40, N41, N42, N43, N44
Suggested Citation: Suggested Citation