View Single Post
Old November 17, 2002, 06:42 PM   #38
Senior Member
Join Date: June 1, 2000
Location: Wisconsin
Posts: 321
It struck me that the court seemed more questioning of the government's position than the defense
I agree. The Hamdan facts really brought to light the problem with the state's position on the statute and they wanted an explanation. The state didn't really have one.

I loved how a couple of the justices spoke of "the privelege of self defense."
You might be reading more into that than you should. The discussion regarding privilege of self-defense was in the context of an affirmative defense as recognized by statute. As in, if you punch someone in the face after being attacked, you can assert the defense of "privilege" to acquit yourself of any criminal assault or battery charges.

The Wisconsin Statutes explicitly recognize the defense of privilege. See Wis. Stat. § 939.45. An actor's conduct, although otherwise criminal, is legally justified when it occurs under one of several circumstances recognized by statute. Id. If the actor's conduct occurs under circumstances of coercion or necessity, the conduct is privileged. Wis. Stat. §§ 939.45(1), 939.46, 939.47. Likewise, an act is privileged if it is done in defense of persons or property. Wis. Stat. §§ 939.45(2), 939.48, 939.49. Wisconsin also recognizes privileges for the good faith performance of the duties of a public office, Wis. Stat. § 939.45(3); for the reasonable effectuation of a lawful arrest, Wis. Stat. § 939.45(4); and for the reasonable discipline of a child by a person responsible for the child's welfare, Wis. Stat. § 939.45(5). Finally, the privilege statute contains a "catch-all" provision, which incorporates any other privilege recognized by statutory or common law. Wis. Stat. § 939.45(6). Each of these privileges may be raised as a defense to a criminal charge. State v. Nollie, 249 Wis. 2d 538.

In State v. Nollie and State v. Dundon, the WI SCt. basically said there is no "privilege" of self-defense for the crime of carrying a concealed weapon in violation of the CCW statute.

"Privilege" as was discussed in the arguments is a legal term, not a human rights term.
GOA (Life)

"For every complex problem, there is a solution that is simple, neat, and wrong." -- H.L. Mencken
GnL is offline  
Page generated in 0.04311 seconds with 7 queries