The Collateral Sentence of Death

The title of Eugene’s post, “We Affirm, But Only Because We Are Unable to Write a Principled Opinion Reversing,” sucked me in.  You’ve got to admit, it’s a great line.  The post is about a Wisconsin decision concerning whether the a defendant must be informed that his plea will result in the loss of his Second Amendment right to keep and bear arms.

A full understanding of charges against Neis would include that by pleading guilty, Neis would lose the right to possess a firearm, and would be prosecuted for a federal crime if he did so. This is a significant enough right for United States and Wisconsin citizens that we have included it in both constitutions. It is difficult to conclude that this right is nonetheless so insignificant that it is only a “collateral” consequence of pleading guilty to a disorderly conduct charge. But that is all it is.

This got me thinking.  The case is long over and the former defendant is sitting in his living room with his wife and kids (forget whether Neis has a wife or kids, as this is just my pondering the “what if”), and a couple of armed men bust through the door.  The fellow, who would otherwise have a gun available to him, sits there defenseless.  Given his own choice, he wouldn’t be as he’s inclined to possess a gun for self-defense.  One of the armed me, the big, burly one with the scar on his left cheek and a tattoo that reads “Mother” on his forearm, doesn’t care for the way Neis is looking at him.  He points.  He shoots. Neis dies.

While this could happen to someone disinclined to possess a weapon, or someone who possesses a weapon but doesn’t have it readily available at the moment of need, or any number of other variations which could produce the same outcome, my scenario involves a person who, but for the deprivation of his weapon, would have and could have defended his life.

The sentence of the court is that Neis cannot defend himself from a fatal attack.

Natural law is that a person is entitled to act to defend himself from death at the hand of another.  No one need suffer his own death to be a good, law-abiding citizen.  It’s a bottom-line thing.  Better to be judged by 12 than carried by six.  While this cute phrase is misused far too often, there are certainly situations where imminent death justifies action.

But Neis, well, can’t take action.  He’s a law-abiding guy now, having learned his lesson well and complying not only with the sentence of the court, but the collateral demands that the law places on a sentenced defendant.  The law says no guns, so no guns it is.  The law says that a person once convicted must stand naked against a threat to his life, so Neis is unarmed.

Obviously, my imagined scenario isn’t an everyday occurrence, and may even be a bit on the fantastical side, but it’s not so far-fetched that it can’t happen.  If you happen to be Neis at that moment, nothing could be more meaningful than the ability to stop the big, burly guy before he puts a bullet in your head.  Nothing could be less collateral.

The reasons why a government would not want a criminal to have a gun are clear and obvious.  Some, perhaps most, would use it unlawfully against another, and yet there would be no way to stop the criminal from exercising his right to keep and bear arms.  And yet, there doesn’t seem to be a rational argument to suggest that a former criminal should be incapable of defending himself from violent attack. 

While it might be argued that his former life of crime shifts the balance against him, that doesn’t make much sense for crimes that didn’t involve violence, or don’t suggest that the defendant will be violent in the future.  The “forfeiture of the right” argument makes no sense due to disproportionality.  The “undue” burden of differentiating between those who should, and shouldn’t, lose their rights may be a problem for government, but the Constitution isn’t about making people’s rights subject to government ease.  Besides, if you compare the burden of being murdered with the burden of due process, the former wins.

To the guy with a green card who’s been here for 34 years, has two kids in college and can’t speak the tongue of his mother country, deportation after a minor felony with a sentence of probation is hardly collateral.  To the unarmed guy sitting in his living room with his wife and kids staring at the big, burly guy with the scar, tattoo and gun, the loss of his right to defend himself is even less collateral. 

Sure, this won’t happen all that often, but to the one in a thousand, or a million, who finds himself in that situation, does he deserve a collateral sentence of death?

17 comments on “The Collateral Sentence of Death

  1. Ernie Menard

    First, I totally support the right of my fellow U.S. citizens to keep and bear arms.

    Second, I don’t own any firearms.

    Third, I agree with your implied conclusion that the deprivation of this fundamental right should be subject to strict scrutiny on an individual basis.

    Fourth, equating the deprivation of this right with a death sentence is asinine.

  2. Peter Ramins

    Personally I’m of the opinion that if the claim is that the prison / criminal justice system is to rehabilitate and reintegrate people, then… treat them as such.

    And SERIOUSLY? *Disorderly Conduct* ?

    That might as well be ‘Contempt of Cop’. I mean, I could see people thinking restricting the gun ownership rights of a former gun-murderer as appropriate (I mean, I can see their viewpoint), but disorderly conduct could include so many minor things that could fill an arrest quota that I think it’s waaaay before any reasonable line drawn in the sand.

    But again, primarily I think convicted folks who have ‘paid their debt’ to society should be treated as such. Felony convictions alone are enough to really ruin someone’s life, not withstanding the other collateral ramifications.

  3. Dave W.

    “Eventually, Neis informed police that he had grabbed his wife and thrown her from their garage and slapped her in the face at least once.”

    The problem wasn’t the disorderly conduct, but the domestic abuse “surcharge.” I don’t like collateral consequences generally. I don’t like sneaky surcharges that lead to disproportionate punishments (except in Mehserle’s case). I wouldn’t be at all surprised if police made up the confession in regards to the slapping and the throwing.

    All that said, taking away a man’s guns because of misdemeanor domestic violence makes some sense. Yeah, he could be home invaded, but (if he really did attack a wife) there is probably a greater probability that he will attack a wife again.

  4. SHG

    Try not to get bound up in the facts of a particular case and bear in mind that the same rules apply in analogous situations.  That said, is it sufficient that there is “a greater probability that he will attack a wife again” sufficient to categorically deprive people of what appears to be a fundamental constitutional right?  Or, as I muse, deny a person the wherewithal to defend himself?

  5. ExPat ExLawyer

    In my jurisdiction in Colordo, the county court judge imposes an automatic list of bond conditions on everyone, and a misd. assault (no matter how minor, non-existent, or overcharged) requires the d can’ possess any firearms. No new purchases can be made, and existing guns need to be turned over to law enforcement for safe keeping. And the cases drag on and on in this jurisdiction unless you don’t take the first plea deal. A misdemeanor through trial will easily be two years.

    They have lots of other crazy bond conditions. A DUI charge means a no-drinking condition for a first offense charge. A conviction would not result in this penalty, yet if you’re not yet convicted you get a tougher penalty than you’d get if convicted. To make matters worse, a bond violation for a misdemeanor means a six-month minimum mandatory consecutive to any other sentence. If D on bail with a felony charge, a bond violation carries a one-year min-mand.

  6. ExPat ExLawyer

    Sorry for drifting off topic, Scott. I did think there was a strong analogy to bond conditions that removed second amendment rights and post-conviction eliminations of the right. Then once started on that topic, I get wound up in evangelical zeal to spread the word about the outrage.

  7. Dave W.

    Like I said, I don’t like collateral punishmnets period.

    However, on gun rights, I am one of those who believes that the well-regulated militia clause should be construed to have significant continuing importance. In that sense, I see gun rights as much less “fundamental” than voting rights or the right to move without registering on a registry.

    That said, I can why this case has political value — it helps the law and order types understand things they are disinclined to understand in other collateral consequences contexts where I personally believe the injustices are much worse.

  8. Jdog

    I wish I had something more to contribute that, well, on the nosie, but I don’t have much.

    The only thing I can point out is the your hypo is not all that farfetched at all, unless you insist on the facial scar. That sort of stuff has happened to lots of folks, including, well, me. It’s by no means something that will happen to everybody, or to all but a small minority of folks, but for those of is in that minority who have had a gun available and who think, rightly or wrongly, that that made a difference, it’s kind of a big deal.

  9. Peter Ramins

    How about… we introduce more restrictions? Convicted felons can’t have vaccinations any more. Can’t wear seat belts.

    Most people need neither, so what’s the big deal?

    (I realize those are imperfect comparisons, but the protection analogy in each is what I’m going for.)

  10. SHG

    The stretch is making the sentence, and it’s collateral consequences, responsible for the outcome.  But as you say, for those who believe that the availability of a gun for self-defense made the difference, then it’s not nearly as much of a stretch as it may appear at first blush.

  11. Ernie Menard

    As you have nothing to contribute that exactly meets the situation, does this mean that you: were the victim of a home invasion, you had a firearm, you were unable to get to it?

    Frankly, if I were the victim of a home invasion I’d sure like to have a firearm at hand. However, I believe from my own personal experience that I’m more likely to be shot to death by the police than a home invader. [No, I do not whatsoever live any type of a high risk life style].

  12. CrimeCounsel

    In the UK. We have all been sentenced to death.

    This is one of those posts that is interesting to Americans for one reason, and to Jonny foreigner for quite another.

    Until I got right to the end, I was actually expecting a punch line.

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