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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

Clarence Thomas quest to cement conservative principles into U.S. Supreme Court precedent could soon pay off, as he marks his 30th anniversary as a justice.

Thomas, 73, who isnt shy about dissenting alone when he thinks the court got it wrong, may see some of those dissents transformed into majorities on a court where ascendant conservatives now hold a 6-3 majority.

Even those who dont agree with Thomas approach to the law acknowledge that his influence is rising as the court prepares to consider cases ranging from abortion to guns.

There are instances where yesterdays radical views become todays mainstream constitutional interpretation, said Yale law professor Justin Driver, who noted that Thomas has been able to drag the constitutional conversation in his direction.

When Thomas joined the court in 1991, it was under a cloud due to allegations of sexual harassment by Anita Hill during his confirmation hearings, said Carolyn Shapiro, of the Chicago-Kent College of Law. Shapiro, like Driver, emphasized that she often doesnt see eye-to-eye with Thomas.

Nevertheless, Driver said his confirmation controversy is part of why Thomas jurisprudence has received insufficient attention. People have failed to grapple with his views, Driver said.

Both noted that the common perception was that Thomas followed the lead of the late Justice Antonin Scalia, who Thomas said is the one person I truly miss at the court at a Heritage Foundation event Thursday marking his anniversary. Scalia is known as the father of the originalist movement, the idea that the Constitution should be interpreted according to its common meaning at the time of the founding.

From the very beginning, he was much more of a leader on the court than people recognized at the time, said Carrie Severino, who clerked for Thomas and now heads the conservative advocacy group Judicial Crisis Network.

She pointed to cases dealing with how much deference courts should give to administrative agencies interpretations of statutes.

Thomas has long been skeptical about such deference and he eventually brought Scalia around to his way of thinking, Severino said. In a 2020 dissent from the courts decision not to hear a case, Baldwin v. United States, involving the Administrative Procedure Act, Thomas lamented that the core of agency deferencea case called Chevron v. NRDC"is in serious tension with the Constitution, the APA, and over 100 years of judicial decisions.

Theres now a clearer majority of justices who appear to want to cut back on whats been the law for decades, even before Thomas arrived.

While Severino said Thomas has long been an intellectual leader for the constitutionalists on the court, she said the pattern is accelerating. Justice Thomass greatest contributions to the law may still lie ahead of him, Severino said.

His influence may be easier for the public to see now that hes taking on a more prominent role in oral arguments, she added. Thomas, who went 10 years without asking a question during argument, recently started to reengage with advocates. His comments are frequently picked up by the other justices, who tend to ask follow-up questions.

If Thomas views prevail, other precedents could get overturned.

In some instances, were seeing that Thomas has moved from an outlier position to seeing his vision prevail, Shapiro said.

And the fact that those changes in the law could be enormously disruptive, is something that isnt a concern for Thomas, Shapiro said.

One thing thats is striking about his opinions is that he doesnt care how his opinions would disrupt the status quo, she said.

Thomas wrote in a 2019 concurring opinion that in my view, if the Court encounters a decision that is demonstrably erroneousi.e., one that is not a permissible interpretation of the textthe Court should correct the error, regardless of whether other factors support overruling the precedent.

A willingness to overturn precedent is another way in which he differed from Scalia. Im an originalist and a textualist, not a nut, Scalia said in 2008, a remark thats been interpreted to refer to Thomas comfort with overturning longstanding precedent.

Thomas is less willing to compromise about getting the law right, said Elizabeth Slattery, of the libertarian public interest law firm Pacific Legal Foundation. That includes on issues ranging from the structure of government to individual rights, Shapiro said.

And hes not afraid of going it alone when none of his colleagues agree, Driver said.

During the Roberts Courtdating to 2005 when John Roberts was named chief justiceJohn Paul Stevens was the only one of the 14 justices to have served on the bench who dissented alone more often than Thomas.

Convincing other justices to join in some of those dissents is going to be an uphill battle for Thomas, Slattery said. He pointed to a 2014 concurring decision arguing that while the First Amendments idea of the separation of church and state likely prevents the federal government from creating a national religion, it probably doesnt bind the states.

The First Amendment was simply agnostic on the subject of state establishments; the decision to establish or disestablish religion was reserved to the States, Thomas said. No other justice joined that part of his decision.

Thomas, though, has been extremely consistent in pushing his vision of the Constitution, Shapiro said, regardless of how out of step it may be with the mainstream.

In a 2019 case about whether the Eighth Amendment constricts the states as well as the federal government, Thomas once again stressed that he thought the court got the right result via the wrong method.

Instead of incorporating the Bill of Rights to the states via the due process clause, the court should do so via the privileges or immunities clausea route seemingly barred by the courts case law dating back to the 1870s.

As I have previously explained, this Court marginalized the Privileges or Immunities Clause in the late 19th century by defining the collection of rights covered by the Clause quite narrowly, Thomas wrote in his concurrence, citing another concurrence he wrote nearly a decade before.

Thomas Jipping, who helped shepherd Thomas nomination by George H.W. Bush, said he hasnt drifted at all.

Im not surprised, but pleasantly pleased, that hes become the kind of justice we expected him to be, Jipping said.

Its no coincidence that the current court is set to take on cases addressing abortion, guns, and maybe affirmative action, since the newer justices align more with Thomas legal view.

For half a century, the court has consistently refused to reinstate state laws that ban abortion before viability, which is the line the court set in 1973 Roe v. Wade and the cases that followed. That could change when the Supreme Court hears Dobbs v. Jackson Womens Health Organization, a case involving Mississippis 15-week abortion ban.

Many constitutional scholars think Roes days are numbered, something Thomas has been pushing for since he joined the court.

Gun rights is another area where the court is moving in Thomas direction. He objected to the court repeatedly turning away Second Amendment cases, lamenting that the Second Amendment is treated like a second-class right in a 2015 dissent from denial.

Next month, the court will hear the biggest gun rights case in a decade, New York State Rifle & Pistol Association Inc. v. Bruen. The court, which now includes three conservative appointees of former President Donald Trump, seems primed to expand the Second Amendment right to carry a gun outside of the home, calling into question carry permit schemes in a swath of states.

Yet another blockbuster case of particular interest to Thomas could still get added to the courts docket. The justices have signaled an interest in taking up the latest challenge to university affirmative action programs by asking the federal government to weigh in on the issue in Students for Fair Admissions Inc. v. President & Fellows of Harvard College.

Thomas, a beneficiary of affirmative action at Yale Law School, has argued that such programs hurt minority students by stamping them with with a badge of inferiority, as he said in a 2013 opinion.

He is now in a position to lead the court to strike down not only affirmative action, but any form of race consciousness, like the Voting Rights Act and disparate impact claims, Shapiro said.

Striking down affirmative action schemes might be Thomass crowning achievement, Driver said.

Thomas influence also extends to lower courts, where a number of his former clerkswho Thomas referred to as his kids during the Heritage event Thursday, which was co-sponsored by the Gray Center for the Study of the Administrative Statenow sit as judges, said Goodwin partner William Jay.

Several were appointed by President Donald Trump, whose administration had close ties with Ginni Thomas, the justices conservative-activist wife. Former Thomas clerks currently on the federal appeals bench include Fifth Circuit Judge James Ho, D.C. Circuit Judges Gregory Katsas and Neomi Rao, and Eighth Circuit Judge David Stras.

Its well worth watching whether any of them seek to develop points that Justice Thomas has flagged in his separate opinions over the years, Jay said.

Read this article:
Clarence Thomas Waited 30 Years for Court That Thinks Like Him - Bloomberg Law

On Oct. 18, the Texas State Legislature voted to refer to the ballot a constitutional amendment that would increase the homestead exemption for school district property taxes from $25,000 to $40,000. Voters will decide the measure on the May 2022 ballot. It would take effect for the 2022 tax year. The Legislative Budget Board estimated that the increase would cost the state $355 million in fiscal year 2023.

The amendment was filed as Senate Joint Resolution 2 (SJR 2) on Oct. 18, the last day of the legislatures third special session this year. It was approved by both chambers unanimously. The enabling legislation, Senate Bill 1 (SB 1), also received final approval on the last day of the session.

State Senator Paul Bettencourt (R), the author of the amendment, said, People see the need for property tax relief, and Texans are going to cry out for that continuously. This is a great way to bring that home to all of the taxpayers of Texas.

Texas House Democratic Caucus Chair Chris Turner (D) said, Texas House Democrats have been fighting for an increase in the homestead exemption for decades. While Republicans pushed for property tax rate cuts that largely benefit corporations, we have championed legislation that puts money directly into Texas homeowners pockets. Today, our longstanding efforts pay off under SJR 2. We are grateful our Republican colleagues have joined us to provide meaningful property tax relief to Texas homeowners.

Texas voters last approved an increase to the homestead tax exemption in 2015 with the passage of Proposition 1. The amendment increased the exemption from $15,000 to $25,000. It was approved by a margin of 86.4% to 13.6%.

This was the second amendment the legislature referred to the ballot for the election on May 7, 2022. Texas voters will also decide on an amendment that would authorize the state legislature to reduce the limitation on total ad valorem taxes imposed on the homesteads of elderly or disabled residents for school maintenance and operations to reflect any statutory reduction from the preceding tax year. The two ballot measures are the first to be featured on an even-numbered year statewide ballot since 2014. Between 1985 and 2020, 10 ballot measures have appeared on even-numbered year Texas ballots compared to 251 ballot measures on odd-numbered year statewide ballots during that same period.

Additional reading:

Go here to read the rest:
Texas voters to decide on an increase to the homestead exemption from school district property taxes in May 2022 Ballotpedia News - Ballotpedia News