Guns, Insurance, and Ideological Commitments (and Sentencing!)

Post Date: May 6, 2014

The Florida legislature adjourned sine die last week after passing 258 bills. One of those bills, SB 424, prohibits insurance companies from discriminating against gun owners by either denying them policies altogether, or charging gun owners higher premiums than non-gun owners. The bill, which was supported by the NRA – full disclosure, FAMM worked closely with the NRA on HB 89 – was supported largely on the basis that it helps protect Second Amendment rights from unfair discriminatory practices by insurance companies.

The bill’s sponsor in the House was Criminal Justice Subcommittee Chairman Matt Gaetz (R, Fort Walton Beach). Chairman Gaetz summed up his support for the bill by asking: “How much discrimination based on the exercise of a constitutional right is tolerable?” His rhetorical question implied that the correct answer is “none.”

The way I read it, Chairman Gaetz’s defense of his bill rests (roughly) on the following argument: The state has an interest in protecting fundamental rights. Private actions can burden the exercise of fundamental rights. The state’s interest in protecting fundamental rights justifies regulating private activity that burdens the exercise of fundamental rights. Owning firearms is a fundamental right. Insurance discrimination burdens the ownership of firearms. Therefore, the state is justified in regulating insurance discrimination.

Others have taken Chairman Gaetz to task over this line of reasoning, but I agree with him. At the very least, Gaetz’s position is coherent.

That said, defenses of one position often create positive commitments that affect other positions. Crafting public policy is difficult, and politics makes it even more so. Rigorous devotion to principle is difficult to maintain over the course of thousands of bills covering hundreds of issues. Nevertheless, it’s intuitive that legislators should at least want some semblance of ideological consistency, and intellectual honesty requires grappling with how one’s various commitments interact with one another both in one’s ideology and in one’s political positions (as expressed through votes on specific bills).

In this case, I believe Chairman Gaetz’s defense of his position on his insurance discrimination bill creates a positive philosophical commitment that should lead him to oppose mandatory minimum sentences.

Once again, the idea behind the insurance discrimination bill is fairly straightforward: owning guns is a constitutional right, and gun owners shouldn’t be discriminated against because they exercise that right. That is, insurance companies should not be able to place extra burdens on gun owners merely because they exercise a constitutional right.

Of course, mandatory minimums also place extra burdens on the exercise of fundamental constitutional rights. To see how, consider the following thought experiment.

You are driving your car when you’re pulled over. During the stop, the officer asks to search your car. Having nothing to hide, you (foolishly) consent to the search. During the search, the officer looks under the front passenger seat and finds a sandwich bag that contains 44 hydrocodone pills. The officer asks if the pills are yours, and you tell the police officer – honestly – that you’ve never seen those pills before in your life and that they must belong to your son or one of his friends, because he borrowed the car last night. The officer places you under arrest and charges you with drug trafficking.

After spending some time in county jail, you have a few minutes to talk to your lawyer before you have to enter a plea. Your lawyer tells you that if you plead guilty to drug possession and agree to set up controlled buys to bust drug dealers, the prosecutor will agree to probation. You protest, and adamantly claim your innocence. You say you’re not a drug dealer, you’re not even addicted to drugs, and you’re certainly not a drug trafficker! You tell your lawyer you want to plead not guilty and go to trial.

Then your lawyer tells you that if you lose at trial, the judge will have no option but to sentence you to 25 years in prison. You still protest, saying that you don’t want a felony drug conviction on your record, and, of course you really are innocent. After a few minutes, you decide that, while you are confident you could win at trial, you simply can’t risk 25 years in prison. You take the plea deal.

In that thought experiment, the existence of the mandatory minimum created a burden on the exercise of the defendant’s constitutionally guaranteed right to a trial by jury. Specifically, the mandatory minimum created a penalty of 25 years in prison merely for exercising the right to trial. The burden on Sixth Amendment rights created by the mandatory sentence is identical in form to the burden on Second Amendment rights created by insurance discrimination. In other words, if a higher insurance premium is an intolerable burden on the exercise of one’s Second Amendment rights, surely a 25-year trial penalty should be considered a similarly intolerable burden on the exercise of one’s Sixth Amendment rights.

I can think of a handful of ways one might argue that support for SB 424 does not create positive commitments to oppose mandatory minimums, but I don’t think any holds water.

For instance, one could argue that mandatory minimums simply don’t burden the Sixth Amendment right to trial. I’ve seen this argument based on the idea that a defendant is always “free” to accept or reject a prosecutor’s offer. However, one could similarly argue that one is “free” to own a gun or not own a gun. The issue isn’t whether one is “free” to accept a plea bargain. The issue is whether the institutional structure of the system creates an undue burden on the exercise of the right in question. And, as Tim Lynch argues at length in this great Cato Institute piece on plea bargaining, the answer is that harsh mandatory sentences clearly create such a burden. 

One might argue that the Sixth Amendment is not sufficiently important to trigger the state’s interest in protecting it in the same way that the Second Amendment is sufficiently important. That’s a coherent argument, but it doesn’t seem to be a very good one. After all, both the right to keep and bear arms and the right to a jury trial are guaranteed by the Bill of Rights. At the very least, this argument would put one at odds with the entire Western legal tradition, and certainly with the principles of the founders, so it doesn’t seem strong enough to justify the relevant distinction.

One could argue that government-created burdens on fundamental rights are not as bad as burdens created by private actions, and therefore one can consistently ignore the former while opposing the latter. Again, this is a coherent argument, but it is intuitively implausible. After all, rights are traditionally held against state action. If anything, one would be on much firmer footing if one opposed all state-created burdens of fundamental rights but allowed private actors to burden fundamental rights. (This seems to be the position taken here.) But I can’t think of even one plausible argument that would justify the opposite position.

Perhaps one could argue that the activity regulated by SB 424 – i.e., discrimination – is a unique burden, such that one could consistently support regulation of discrimination while ignoring different activities that burden constitutional rights. Perhaps, but I don’t think this defense permits ignoring mandatory minimums, either, because mandatory minimums do “discriminate” between similarly situated defendants.

Consider Florida’s laws establishing “drug-free zones.” Under those laws, a person who sells certain drugs within 1,000 feet of any number of places (e.g., schools, public parks) faces a mandatory minimum of three years in prison. (Presumably the idea behind these laws is that while the entire state is a “drug-free zone,” these special areas are really, truly, we-mean-it-this-time “drug-free.”) But a person who sells the same substance an angstrom outside that “zone” is not subject to the same minimum penalty. Hence, two defendants engaged in virtually identical criminal conduct will face two very different sets of incentives based on the sentences to which each is subject. The defendant inside the zone risks at least three years in prison by exercising his right to a trial, while the defendant outside the zone does not face the same risk. Many mandatory minimums create similar “cliff effects.”

Finally, one could concede that mandatory minimums place undue burdens on the exercise of Sixth Amendment rights, and concede that the Sixth Amendment is sufficiently important to trigger the state’s interest in protecting it from undue burdens, and concede that mandatory minimums discriminate among similarly situated persons, but nevertheless argue that competing state interests justify the burden created by mandatory minimums. Specifically, one could argue that the justifications for mandatory minimums outweigh the burdens they create on Sixth Amendment rights.

This is the most plausible objection to the argument in this post, but I think it, too, fails. There’s no doubt that the state has competing interests that often conflict with one another. For instance, the state’s interest in finding and punishing criminals conflicts with its interest in protecting citizens’ Fourth Amendment right against unreasonable searches and seizures.  When those interests collide, we have to make judgments about the degree to which we will allow burdens on our rights in order to meet the state’s legitimate competing ends.

But in those circumstances, the government has an obligation to show why a particular policy is necessary to achieve its ends. If the state can achieve its ends without burdening constitutional rights, then the state has an obligation to do so.

In this case, to justify opposition to insurance discrimination against gun owners but support of mandatory minimums, one would have to show that the public safety ends mandatory minimums ostensibly provide are sufficiently compelling to justify the burdens on the Sixth Amendment, and that those ends couldn’t be achieved absent mandatory minimums.

In the end, these are empirical questions and, needless to say, I don’t think this burden can be met. At the very least, this principle establishes the burden that proponents of mandatory minimums (who also support banning insurance discrimination against gun owners) must meet to satisfy the principle of intellectual consistency. (And, by all means, please, show me the evidence that meets the burden!)

74 members of the House and 37 Senators voted for SB 424. Presumably, they voted for the bill because, like Chairman Gaetz, they believed that discrimination against gun owners by insurance companies represents an intolerable burden on the exercise of Second Amendment rights. I believe intellectual consistency demands that those same members oppose mandatory minimums, which also create intolerable burdens on the exercise of the constitutionally guaranteed right to a fair trial.  

~ Greg Newburn, FAMM Florida Project Director

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