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In the movieTrue Grit, federal marshal Rooster Cogburn is asked if the gun that he brandished at a crime scene was loaded. Cogburn, played by John Wayne, dryly responds,A gun thats unloaded and cocked aint good for nothing.Something similar might be said of a Supreme Court docket, particularly when there is a Second Amendment case that could prove one of the most impactful decisions of the term.

The court will soon take upNew York State Rifle & Pistol Association Inc. v. Bruen, more than a decade after its last major gun rights decision. The case promises to be a showdown between the Supreme Court and lower courts, which have been chipping away at the high court's prior Second Amendment rulings.

In 2008, the Supreme Court handed down a landmark ruling inDistrict of Columbia v. Heller, recognizing the Second Amendment as encompassing an individual right to bear arms. Two years afterHeller, inMcDonald v. City of Chicago, the court ruled that this right applied against the states.

The new case concerns concealed-carry restrictions underN.Y. Penal Law 400.00(2)(f) that require a showing of proper cause. Lower courts have upheld the New York law, but there are ample constitutional concerns over its vague standard, such as showing that you are of good moral character. The case presents a single short, direct question whether New Yorks denial of petitioners applications for concealed-carry licenses for self-defense violated the Second Amendment.

The high court has been carefully waiting for just the right case to address states and cities that have sought to limit gun rights. Indeed, just this week, the courtturned down a challengeof a Wisconsin law imposing a lifetime ban on gun ownership for former felons, including cases involving nonviolent crimes. That and other cases seemedtailor-made for Justice Amy Coney Barrett, who wrote a strong defense of the Second Amendment in a similar case as an appellate judge.

It often is difficult to determine which side of the court supplied the votes to grant review in a case. That is not the situation here. The New York case was clearly accepted by conservative justices with a mind toward reversal of the U.S. Court of Appeals for the2nd Circuit.

The selection of a New York case is particularly poignant. Some of the justices were none too pleased with the Big Apple last year when city officials suddenly sought to withdraw a case on the courts docket.New York politicians had passed a law that many of us viewed as unconstitutional, with its imposition of burdensome limits on the transportation of lawful guns from homes. Those politicians publicly thumped their chests about going to the Supreme Court with the law and limiting the Second Amendment precedent; professing absolute confidence, they litigated the law, and, again, the2nd Circuit supported the dubious statute. The Supreme Court accepted the case for review and was expected to overturn the law until New York suddenly changed the law and then quietly sought to withdrawits case before any ruling.

The courtultimately dismissed the casebut did so over the objections of three dissenting justices. It was a rare instance in which the court resisted such a mootness ruling after a party sought to withdraw but, then, few litigants have had the temerity to do what New York did. Justices Samuel AlitoSamuel AlitoA politicized Supreme Court? That was the point Locked and Loaded: Supreme Court is ready for a showdown on the Second Amendment The Hill's Morning Report - Presented by Altria - Jan. 6 panel flexes its muscle MORE,Neil GorsuchNeil GorsuchLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Justices weigh request for information on CIA's post-9/11 torture program Supreme Court declines to hear dispute over DC representation in Congress MOREandClarence ThomasClarence ThomasA politicized Supreme Court? That was the point Locked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Two conservatives resign from Biden's Supreme Court commission MOREspecifically called out New York for manipulating the docket by withdrawing an unconstitutional law just before a final opinion. Justice Brett KavanaughBrett Michael KavanaughLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Why Latinos need Supreme Court reform Feehery: A Republican Congress is needed to fight left's slide to autocracy MORE joined in the condemnation and added menacingly that some federal and state courts may not be properly applyingHellerandMcDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.

The court then did precisely that, by accepting a case with the very same plaintiffs:New York State Rifle & Pistol Association.On this occasion, however, the court is unlikely to tolerate another bait-and-switch by state officials trying to withdraw the case at the last minute.

If those four justices are still intent on pushing back on lower courts, they need only Chief Justice John Roberts or Barrett to hand down a major ruling in favor of gun rights.

The briefs filed in the case include groupssuch theCato Institute,which directly confronted the court about it being legally absent without leave on gun rights for more than a decade. Cato has argued that judicial inaction has contributed to the Second Amendments demise. Its no secret that many federal courts have engaged in systematic resistance toHellerandMcDonald.

Many point to the courts statement inHeller,which acknowledged that like most rights, the right secured by the Second Amendment is not unlimited. It then listed possible sensitive places for denying permits to former felons. Lower courts limiting gun rights have repeated those lines like a mantra, and the high court appears poised to bring clarity to that ambiguity.

Bruenhas many of the same elements asHeller, including a rich historical discussion of what gun ownership has meant through history. Notably, English subjects in the American colonies were the first to receive written guarantees of the right to bear arms for self-defense;settlers of the Virginia colony in 1607 and the New England colony in 1620 were subjects under royal charters recognizing that right. In England, the right to bear arms was formally declared in the 1689 Declaration of Rights that stated that the right to arms was among the subjects true, ancient and indubitable rights.

That history will weigh heavily in the court defining the right of people to carry weapons in self-defense outside of the home. In many ways,Bruenis the shot not taken last year inNew York State Rifle & Pistol Association Inc. v. City of New York.Now the same plaintiffs are back, and New York has supplied another perfect case for the expansion of gun rights. So if you are wondering ifBruenis loaded, at least four justices are likely to agree that a Second Amendment case thats unloaded and cocked aint good for nothing.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter@JonathanTurley.

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Locked and Loaded: Supreme Court is ready for a showdown on the Second Amendment | TheHill - The Hill

By TCR Staff | October 20, 2021

U.S. District Judge Cynthia Bashant has been asked by several gun owners to issue a temporary restraining order blocking a novel ban on non-serialized, unfinished, untraceable firearms known as ghost guns signed into law by San Diego Mayor Todd Gloria law, which is set to go into effect Oct. 23, 2021, and may violate state law allowing gun owners to assemble their own weapons, reports the Courthouse News Service. The Second Amendment proponents are suggesting San Diegos ban criminalizes legal conduct rather than preventing untraceable weapons from getting into the wrong hands.

Attorneys for the gun owners argued San Diegos ordinance was an outlier in California, where those who want to DIY assemble their own firearms must apply for and receive a California Department of Justice-issued serial number to engrave or permanently affix to their firearm within 10 days of assembling it. According to the mayors office, in 2020 San Diego saw a 169 percent increase in the number of ghost guns retrieved and impounded compared to the previous year.

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Second Amendment Backers Want San Diego Ban on Ghost Guns Reversed - Crime Report

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.

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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.

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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