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?