So Called Tort Reform Damages Property Rights
Our founders designed a relatively weak central government, with specific, enumerated powers, to be “bound by the chains of the Constitution.” In fact, each public servant is even forced to carry a Fidelity Bond in furtherance of his or her oath of office. But as the years went by, politicians learned that they could appoint judges to interpret words like “shall not be infringed,” and that which was always right became wrong, and what was wrong became right.
Now a days, unconstitutional laws are passed all of the time, and more and more, in liberal/progressive jurisdictions like California, once a law is ruled unconstitutional by say, the U.S. Supreme Court, the legislature will simply pass another unlawful “law,” similar to the last one, and force years of legal action in the courts.
The cycle simply continues on and on, in perpetuity while you and I are denied the rights, and must “wait and see.” Below you will see some examples of how this game is being played in the legislatures, halls of congress and the courts. What is astonishing is that both political parties are guilty of this, one when it comes to gun rights, and the other, when it comes to personal injury plaintiff victims’ rights. In this piece, we will discuss why no side of the political spectrum is well served supporting either gun control, or so called “tort reform,” and why.
Right to Keep and Bear Arms and Right to a Civil Jury are Both Unalienable Rights?
All rights, even the unpopular ones, must be treated as sacrosanct. No amount of revisionist history by activist courts or politicians can change the fact the main reason we have the right to keep and bear arms is so we can abolish, or at least try and fight off oppressive government that violates its oath of office.
That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness . . . (See Unanimous Declaration.)
In fact, one of the first things King George tried to do when usurping his promises under the Magna Charta, was to try and seize the weapons and powder houses. For at least a hundred years, no one in this country had any doubt that the “People”, when it came to firearms, meant everyone, not the National Guard. Coincidentally, the people never lost their character as ordinary militia by birth.
Later, in the 20th century, progressive politicians realized that you cannot easily take away the property rights of an armed citizenry, and moved to enact gun laws after using the press to sensationalize gun violence. If only the National Guard was armed, then ONLY the government would be armed. Fortunately, the NRA and other educated people saw through this non sense. But that did not end the left’s efforts to strip private citizens of the firearms rights.
Death By a Thousand Cuts
Courts and Progressive politicians who appoint the judges to those courts, have opted for the slow approach, instead dictating how many rounds we can have in our weapons, forcing us to register them with the government in order to make it easier for the government to take them, and making ammo so expensive with taxes and fees that no one will be able to afford to keep and bear arms, ALL INFRINGEMENTS. Death by a thousand cuts is the new method.
The Peruta Example
Take the recent Peruta case, where originally, a three judge panel found that the San Diego Sheriff forcing people to prove that they are in danger (show “good cause”), before law enforcement will issue a conceal carry permit to an otherwise law abiding citizen who had taken classes and safety courses on firearms, was unconstitutional. This was even more especially true since there is no longer a legal right to “open carry” a firearm in the Golden State.
In other words, the right of the people to “keep and bear arms” that are readily accessible outside of your home, and perhaps at a designated gun range is virtually non existent. What are the exceptions? Well, perhaps unless you are in the enumerated “government class.” (Read more.) Other than that, forget about it.
The lone dissenting judge Peruta was promoted to Chief Judge of the 9th Circuit. That same dissenting judge who was against the right of Peruta to be granted a conceal carry permit, is now in charge of the en banc full panel of the 9th Circuit, a Court traditionally hostile to private property and firearms rights.
The Slippery Slope of Letting Judges and Politicians “Interpret” Your Jury Rights
As you can see above, the reason why it is so important to enforce, rather than interpret the plain language of the Bill of Rights and its foundational documents (Magna Charta, Articles of Confederation, etc.), is so that political types of judges, or politicians don’t get their mittens on our unalienable rights. Watch out for politicians on the campaign trail. Listen to them, and you will hear just about every empty and vapid promise imaginable.
The call to change the tort system of the states is a major political football, especially when the electorate is not clear about the true implications of such an action. Instead of protecting businesses and individuals from undue lawsuits, these radical changes instead strip away basic property and individual rights of the victims of civil actions that often arise out of crimes like assault, battery, and even professional malpractice.
Modern “Tort Reform” is Code for Taking Away the Power of the Jury
We keep hearing stories about runaway verdicts and we hear the misrepresented stories about the McDonald’s hot coffee case, as a justification to reduce how much money a jury can award YOU. The reality is, the justice system and the courts already have procedures in place to either reduce or add to a jury award, called additur and remittitur. There is even a procedure that allows the courts to summarily adjudicate a case, and dismiss it, if it is not likely to succeed.
What is really going on here, is that business lobbying groups are trying to control how much their clients will have to pay, when or if they violate the rights of their fellow man and cause him or her injury. This will make it easier to put a hard cost on hurting others, placing profits over people.
It’s a shame that one of my heroes when it comes to the Constitution, former Texas Governor Rick Perry had made his state’s so called ‘tort reform,’ a major piece of his nascent campaign. Newsmax reported on Perry talking about his state’s changes made under the auspices of reducing spurious lawsuits. Instead, many Texans are now left without vital legal protections they have counted on for centuries.
Stripping Away the Seventh Amendment Right of the Civil Jury To Decide The Damages Portion of Your Case Leaves You a Victim
Life, liberty, and property are meant to be unalienable rights. No person should be parted from their belongings and earnings unless by their own choice. The recklessness of allowing serious injury to befall an innocent person is a clear choice. Our founders knew that eventually the mob, jealousy and underhanded dealings could infect our system. That is why many of your most important legal rights were enshrined in a Bill of Rights, designed to send a message to the future guardians. But like anything else, judges are appointed primarily due to party line considerations.
It is difficult to believe that they don’t find a way to bed the law to the will of the electorate, or party to which they lean or support. If we look at the votes of the liberal appointed judges on gun control, we will see every type of nonsensical argument under the sun in favor of taking away the right of gun owners. It is not simply a theory.
Courts and politicians have created a volley of tautologies and exceptions that effectively annul many of our rights that vary widely from jurisdiction to jurisdiction. They have done it often, as discussed at the introduction. It is no different here, it is just that so called Republicans move to take away jury rights and Progressives move to strip you of your right of self defense. Pick your poison.
Just remember, by stripping away protections from accident victims in tort cases, and giving them to those that allowed such incidents to happen in the first place, you set a precedent that could increase the number of accidents in the future. If one has nothing to lose, why even worry?
But when it is your mom, dad, or child who is killed or wounded, you will sue, and you will want the jury and not a political decision, to decide what your damages award should or should not be. Assuming your case has merit, you will win or lose based upon the facts and the jury will decide how much you get, not a statutory rule that blocks jury rights.
Is the Seventh Amendment Really an Unalienable Right?
Although the Seventh Amendment’s provision for civil jury trials is not officially and universally recognized by the courts like the 1st, 2nd, 4th, 5th and 6th Amendments are, it is obvious that our founders considered this to be an “unalienable” right. In fact, pretty much every state respects the right of a civil jury to decide case.
The issue with tort reform, is that a wrongdoer is now given a floor and ceiling as to what he or she or it, will ultimately have to pay, no matter how bad the negligence was. Do you see the potential license for havoc that this creates for a pernicious tortfeasor who may now weigh risks based upon the maximum civil penalty? Are you understanding this huge problem?
Property and Legal Rights
Property and legal rights go hand in hand. The Commerce Clause of the Constitution clearly delineates state measures from federal, not allowing for the nationalization of efforts in changing tort law. State after state has found that limits on the amount that accident victims can recover are often overturned in the courts.
Missouri’s efforts were overturned by the state supreme court as reported by National Review in 2012, and then forced through the state legislature again just this year. Another several years long battle will loom, just like with the Peruta case above. In the end, the victims, we the People, are the ones who are left without our sacred rights while the government, the same one we are supposed to be free from, decides what our founders had already decided, and Natural Law universally dictates.
Artificial Caps Hurt Everyone in the Free Market
Ultimately, in a free market, the effects of the event calibrates the money that can be recovered. Artificial caps cause shortages, just as price controls do. Just as such actions create artificial scarcity, the attempts to strip the market and its effects out of the courtroom instead hurts those that need such recovery to continue their lives. The ability of an attorney to argue in favor of their client in an open courtroom setting is part of American jurisprudence.
The Laws of Nature and of Nature’s God were also incorporated by reference into our founding documents. It is unnatural to allow a man to be denied his recompense, and will definitely lead to the days of self justice and a “pound of flesh,” revenge actions if something is not done to educate my fellow conservatives and libertarians. No set caps or restrictions should be placed between a person and their full medical and emotional recovery.
The Fallacy of “Tort Reform” Being a Conservative Ideal
How much longer must the charade of tort reform being a conservative idea endure? There have been many Republicans and conservatives that understand the complexities of accidents and their effects that have fought for responsibility in the courts. Some cherry picked examples are not indicative of the wider scope of injury cases across the country.
For victims facing severe injury, lost work, and even disability after a severe accident, having their ability to lead their life again artificially capped is reprehensible and not parallel to basic American ideals. It is no different that liberals trying to infringe upon and harry our rights to keep and bear arms. At the end of the day, there are three boxes we can check, the: “ballot box, the jury box, the cartridge box.” (Source of quote.) When the government moves to take away these rights, you need to be scared. We just discussed why no side of the political spectrum is well served supporting either gun control, or so called “tort reform,” and why. Think about it.
Michael Ehline is a Libertarian leaning car accident and personal injury specialist. He heads Ehline Law Firm PC, a statewide injury and Second Amendment rights advocacy organization.