The Second Amendment vs. the Seventh Amendment: The Distinction Between Substantive and Procedural Rights
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 the
Article from Latest – Reason.com