In Many States Citizens Have Already Lost More Than Their Guns

Regardless of your opinion on the great gun debate that has again resurfaced, the National Rifle Association (the “NRA”) and its members have to be applauded for their determination and drive in fighting for rights vested by the United States Constitution. The NRA is perhaps the most influential lobbying organization in the United States. When the NRA talks, legislators listen. Legislators listen because there are between three and four million members in the NRA and those millions of members regularly go to the polls and vote. The Sandy Hook Elementary School shootings were tragic beyond description and certainly provide a legitimate reason to re-examine gun safety issues. Re-examining those issues has caused a swell of national news coverage and invoked provocative debates across America. I wish the same were true with victims’ rights because debates are good. At a minimum, debates demonstrate that people care.

For nearly thirty years, there has been a constant and focused attack on limiting the rights of victims of medical malpractice and personal injury accidents. At last count all but thirteen states had enacted some form of legislation limiting the amount of money recoverable in personal injury accidents. To do so, legislators had to rip up and throw away the Seventh Amendment’s very clear declaration that, “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” Removing the right of a jury to determine the appropriate amount of damages to be awarded is exactly what the Seventh Amendment was designed to prevent.

As so eloquently stated by one of our founding fathers, Senator Richard Henry Lee, the primary purpose of the trial by jury in America was to protect the public from the elite: “The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely intrusted to the magistracy,–a select body of men, and those generally selected, by the prince, of such as enjoy the highest offices of the state,–these decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity. It is not to be expected from human nature, that the few should always be attentive to the good of the many.”

Yet, powerful lobbyist like the American Medical Association and the United States Chamber of Commerce have successfully spearheaded efforts in thirty-seven states altering the rights guaranteed to Americans by our founding fathers. Curiously, there were no national marches, no press conferences, no spirited debates, and no citizen marches. Did these not take place because my fellow citizens don’t care? I certainly hope not. I think the far more plausible explanation is that the topic was not nationally covered and, therefore, most citizens did not even realize it was happening. Worse yet, when the topic was covered, national media outlets simply reported misleading propaganda from the lobbyists who were attempting to frighten the public into siding with them. To not side with them, the propaganda reported, would jeopardize healthcare for all Americans. That mistruth is the subject of a separate blog. Physicians and multi-million dollar companies being “protected from” jurors provides them with elite status not enjoyed by the common citizen. Our founding fathers would be more than disappointed.

I continue to believe that our founding fathers were correct in turning the civil justice system over to the people. In fact, scholars the world over always tout the American Justice System as the best ever created. I am confident that the majority of citizens would rather have a jury of their peers decide what they are owed than trust that decision to legislators. Yet, in the quiet of the night, without protest or news coverage, Constitutional rights have been eliminated. Call me a romantic but I still believe that the individuals in this great nation continue to care deeply about their individual freedoms and ability to enjoy life, free from injury caused by others. And if injury does occur through the fault of another then twelve citizens should determine what amount, if any, should be paid as compensation. Allowing legislators to alter the system is no different than attending a gun fight without a gun.