Defending The 2nd Amendment

The tragic killings at Sandy Hook elementary school and elsewhere across the country have led to vigorous debate about the proper reach of the 2nd Amendment and to what extent government may regulate the ownership and use of various firearms. Some argue that there should be more restrictions on firearms; others argue such restrictions are prohibited by the 2nd Amendment. Regardless of where you stand on the issue, the debate is an important one as fundamental constitutional rights should never be impeded – or, worse, ceded outright – lightly.

Because of the constitutional importance, many citizens and citizen-legislators have vigorously defended their fundamental right to bear arms. In my home state of Missouri, several state legislators have proposed bills protecting the right to bear arms under both Missouri law and the 2nd Amendment:

HB 170 and HB 209 – Would make it unlawful for any officer or employee of the State of Missouri to enforce any law or regulation of the federal government relating to any firearm owned or manufactured privately and remains exclusively within the State.

SB 150 – Would prevent state officers from enforcing any federal law or executive order which is more restrictive than the law in effect on December 31, 2012, that bans or restricts the possession of a semiautomatic firearm or any ammunition feeding device and would make enforcement of such restrictions – even by law enforcement officers – a criminal offense of "unlawful interference with firearm possession".

State legislatures across the country – including Oklahoma and Texas – have proposed or enacted similar legislation. Indeed, the proposed Texas legislation (HB 553) would preserve the 2nd Amendment "inviolate".

Inviolate. Consider that word for a moment.

Inviolate is not a word we hear or use much in today's language. Dictionary.com defines "inviolate" as "free from violation, injury, desecration, or outrage" and alternatively as "not infringed".

The Merriam-Webster Dictionary defines "inviolate" as ": not violated or profaned; especially: PURE". In providing an example of its use, Merriam-Webster coincidentally provides: "These rights must remain inviolate."

Yes. I agree. Our fundamental constitutional liberties – that by which we defend and maintain the freedom asserted in the Declaration of Independence and preserved in the Constitution – must remain inviolate.

This is precisely why – in addition to the Second Amendment – we must vigorously defend the Seventh Amendment.

Constitutional conservatives across the country – including Andrew Cochran, a Ronald Reagan political appointee who authors The 7th Amendment Advocate blog – recognize the critical importance of the 7th Amendment in protecting not only the right to bear arms under the 2nd Amendment, but also the rights to freedom of speech, religion, and press under the 1st Amendment and, in fact, all other constitutional rights.

Another conservative advocate for the inviolate right to civil jury trials is Judson Phillips, founder of Tea Party Nation. As Phillips and Cochran have advocated, "[r]eal conservatives need to defend each and every God-given right enumerated in the Bill of Rights, and fight to maintain the limits on central power inherent in the Constitution."

Yet, both Phillips and Cochran have noticed that "[c]onservatives love the 2nd Amendment. The 7th Amendment? No so much."

Too many Americans who claim to base their political decisions on the Constitution and Bill of Rights fold like a paper airplane when push comes to shove. Too many of us pick our founding documents apart to choose which of the limits on power in the Constitution, or which of the ten amendments in the Bill of Rights, we back at any given moment.

– Andrew Cochran, Capping Gun Rights & Jury Trials Equally Wrong

As Cochran noted, too many legislators – including some in my home state – "don't get it." Calling out some Missouri legislators, Cochran noted that even though the Missouri constitution declares that "the right of trial by jury as heretofore enjoyed shall remain inviolate", some Missouri legislators are trying to remove that fundamental protection and put government's hands between the people of Missouri and their fundamental civil liberties.

These legislators have filed a variety of bills that, if enacted, would fundamentally restrict or outright repeal the fundamental right to jury trial:

HB 112 and SB 105 – Would repeal the common law action for certain claims and replace it with a statutory cause of action that could be limited or outright eliminated at the whim of the legislature.

HJR 6 – This House Joint Resolution would ask Missouri voters to repeal the provisions of the Missouri constitution protecting the right to jury trial inviolate and replace those provisions by acting as jury for lawsuits not yet heard and arbitrarily limiting damages to $350,000 regardless of the evidence presented at trial. In addition, HJR 6 would permit the government to modify the liability limits without public referendum.

SB 64 – Would not artificially cap damages, but would require a heightened burden of proof for non-economic damages rather than the preponderance of the evidence burden required for all other issues in tort and injury lawsuits.

SJR 1 – This Senate Joint Resolution would retain the language that requires "the right to trial by jury as heretofore enjoyed shall remain inviolate", but wholly eviscerate the protection by permitting any civil case award of noneconomic damages to be limited as prescribed by law. Rather than protecting the right to jury trial, such language would permit government to intervene in every single civil lawsuit and substitute government's decision for that of the jury — all without the government seeing or hearing one piece of evidence.

Sadly, some of the very same legislators vigorously defending the 2nd Amendment are – at the same time – working to undermine or outright repeal the fundamental right to trial in Missouri that has, until now, been protected inviolate.

Missouri's Lieutenant Governor, Peter Kinder, calls himself a "Proven 2nd Amendment Champion" and touted his work winning approval for the Religious Freedom Restoration Act (a measure that restored the highest constitutional protections for the fundamental right to worship), but when it comes to the 7th Amendment, Kinder described the Missouri Supreme Court as "a bunch of termites" after the Court issued an opinion that cemented the right to jury trial as protected inviolate under Missouri's constitution.

On a national level, Senate Minority Leader, Mitch McConnell, vowed to block President Obama's efforts to place restrictions on gun ownership. Sen. McConnell said, "President Obama and his team are doing everything in their power to restrict your Constitutional right to keep and bear arms. Their efforts to restrict your gun rights, invading your personal privacy and overstepping their bounds with executive orders, is just plain wrong." Yet, this is the same Sen. McConnell who supports tort reform that would restrict your ability to protect your rights in court.

So we have leaders across the State of Missouri and leaders across the country on the one hand supporting and protecting fundamental rights under the 1st Amendment and 2nd Amendment, but either refusing to protect or outright attacking fundamental rights protected under the 7th Amendment.

Why? Why don't these leaders understand that if the 7th Amendment is not preserved and protected inviolate, neither will the 2nd Amendment… or the 1st Amendment… or any other fundamental right?

Maybe its the myths and outright falsehoods spread by the national and state Chambers of Commerce. Perhaps it is propaganda like what one newspaper described as "[a] parade of lab-coated doctors" testifying before a Missouri Senate subcommittee.

No one wants doctors to pay exorbitant insurance premiums to greedy insurance companies. No one wants doctors to be driven out of the state or forced into early retirement because of insurance costs. No one wants availability of care to decrease because of malpractice issues. Because no one wants those things, we are fortunate that 7th Amendment rights do not cause any of these problems.

In fact, a recent study by David A. Hyman, MD, JD and Charles Silver, JD looked at five myths of medical malpractice and examined the actual empirical data surrounding the myths.

"We identify five myths of medical malpractice that have wide currency in medical circles. The myths are as follows: (1) Malpractice crises are caused by spikes in medical malpractice litigation (i.e., sudden rises in payouts and claim frequency), (2) the tort system delivers 'jackpot justice,' (3) physicians are one malpractice verdict away from bankruptcy, (4) physicians move to states that adopt damages caps, and (5) tort reform will lower health-care spending dramatically. We test each assertation against the available empirical evidence on the subject and conclude by identifying various nonmythical problems with the medical malpractice system."

– Five Myths of Medical Malpractice (H/T Andrew Cochran)

The study confirmed that caps and other restrictions on lawsuits "do little to improve the malpractice system… they do not make health-care safer, reduce health-care spending, compensate those who are negligently injured, or make the liability system work better." The authors found the best reforms in medicine are "patient safety initiatives that reduce the frequency and severity of medical mistakes." In other words, as Andrew Cochran put it, "[i]f you want to limit medmal lawsuits, end the medmal!"

The benefits claimed by tort reform supporters just do not materialize.

Pro-cap legislators claim that only caps will prevent increases in health care costs. But the state caps haven't stopped health care costs from rising in Missouri, any more than caps in Texas have held down costs there. According to the Center for Medicare Services at H.H.S., health care spending per capita rose at an average of 5.1 percent each year from 2004 through 2009, during which caps were in effect.

– Andrew Cochran, Capping Gun Rights & Jury Rights Equally Wrong

If restrictions on the 7th Amendment do little or nothing to combat rising health costs or insurance premiums, why then are so many legislators so willing to sacrifice your fundamental constitutional rights?

While not all legislators may support the protections of the 7th Amendment, you know who does? The National Rifle Association.

The NRA has an entire division with the sole task of protecting 2nd Amendment rights by using the 7th Amendment right to trial. According to the NRA, it receives thousands of requests for litigation assistance each year.

Since the U.S. Supreme Court's 2008 decision in District of Columbia v. Heller, holding that the Second Amendment guarantees an individual right to keep and bear arms, hundreds of Second Amendment cases have been litigated in federal and state courts. The pace of litigation has only increased since the Court's 2010 decision in McDonald v. City of Chicago, holding that the right to keep and bear arms is fundamental and protects all Americans.

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Depending on the situation, our involvement can range from being a named plaintiff in a suit, to funding and supporting a suit, to intervening and becoming a party, to participating as an amicus, or in some instances to being designated by one of the parties in a suit to lead the oral argument.

– NRA, Second Amendment Litigation

We must preserve and protect each fundamental right if we are to protect any of them. Constitutional rights should not be attacked, demeaned, or trivialized for the political gain of an isolated lobbying group. Constitutional rights are the cornerstone of our society and, as Missouri's founders explicitly said, should remain inviolate.

First and Second Amendment advocates who want to strip us of the right to a civil jury trial should remember that a jury of peers is the Founding Fathers' way of protecting those other cherished rights. Or, as Judson Phillips of Tea Party Nation puts it, we need to use the Seventh Amendment to save the Second Amendment.

– Andrew Cochran, Capping Gun Rights & Jury Rights Equally Wrong

Cochran also wrote that "Liberals who love civil jury trials for their causes need to protect our right to bear arms, and conservatives need to protect the right to civil jury trials from crony capitalists who would abridge our right to a civil jury trial through 'tort reform.'"

I've asked this question before: Do you have a right to free speech if you're limited only to certain words? Similarly, do you have the right to bear arms if those arms are limited only to certain government-approved weapons?

If you answered "no" to either question, then how could you possibly support arbitrary caps imposed by the government in litigation regardless of what the evidence actually shows? It is impossible to legitimately reconcile those opposing viewpoints.

The right to trial by a jury is the most fundamental of our constitutional rights. Query: If a person has a right to a jury trial and the jury award is completely taken away, did that person have a court open to him for an injury done to him? Did he have a remedy? Was justice administered without denial? Did he have his constitutional right to a jury trial?

– Judge Wilson, West Virginia Supreme Court

The right to trial by jury – whether under the Missouri constitution or the 7th Amendment to the U.S. Constitution – is the ultimate lynch pin for all other constitutional rights. Freedom of speech, freedom to keep and bear arms, freedom to contract, freedom of religion… all are ultimately protected from the overreach of government by the fundamental right – inviolate (for now) in Missouri – to have your case heard in a trial by jury.

[More on Your 7th Amendment Rights]

Read More:

• Do You Have A Right of Free Speech If You're Limited Only To Certain Words?
• We Need the 7th Amendment to Save the 2nd Amendment [Andrew Cochran at The 7th Amendment Advocate]
• Capping Gun Rights & Jury Rights Equally Wrong [Cochran at 7AA]
• "Whose Idea Was It to Allow All These Lawsuits?" [Cochran at 7AA]
• Ronald Reagan: Constitutional Conservative, Not Crony Capitalist [Cochran at 7AA]

© Copyright 2012 Brett A. Emison

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