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Civil Rights Enforcement

Commenter Chas makes an interesting comment I wanted to elaborate on a bit more, because this is a fairly common thing I’ve heard in pro-gun country:

I like the idea of criminalizing subversion of the Second Amendment.  I used to think that merely allowing lawsuits against those who would infringe my right to keep and bear arms would suffice.  Not any more.  If they cannot be civil and respect our rights, then off to the slammer with them.  If they still do not learn to respect the rights of others, then lock them up for a long time.

I’m not sure how this would pass constitutional muster, depending on what you mean about criminalizing subversion of the Second Amendment. Subversion of Second Amendment rights is arguably already criminalized by the various Civil Rights Acts, the most applicable here being 42 USC 1985 for civil prosecution, and 18 USC 241 for criminal. But it’s worth noting that these two parts of the United States Code only cover overt acts or conspiracies, but don’t go so far as to govern advocacy.

Advocacy is strictly protected by the First Amendment. That applies to the Bradys advocating against the 2nd Amendment just as much as it applies to racial hate groups arguing against the 13th Amendment, or Fred Phelps’ hateful anti-gay advocacy. Just because you don’t like what they advocate doesn’t mean it’s not protected speech. I oppose what the Brady’s advocate too, but as fellow Americans they are free to advocate to change the laws, even the Constitution, if they so desire.

In order for federal civil rights laws to come into play, you need a conspiracy of two or more people. A conspiracy isn’t advocacy, nor is it, say, Paul Helmke and Peter Hamm saying “I’d love to go over to Sebastian’s house and take his guns. Wouldn’t that be a hoot?” You generally have to take some action in furtherance of your conspiracy to be guilty. For instance, if Paul Helmke bought a crowbar, and Peter bought a cutting torch to get into my safe, that could be evidence they acted in furtherance of the conspiracy. The conspiracy element would also reach Paul even if it was Peter who actually came up to my house and committed the act.

These are the kinds of overt acts that the Civil Rights Acts would cover. By the same token, if Peter Hamm, on his own, hatched this plot and executed it, it would be entirely a matter of state criminal law for the breaking, entering, and thievery part of the crime, and only federal law because I hold a Federal Firearms License. The Civil Rights Acts requirements are not triggered for lone actors, except those acting under color of law.

Another proper use of federal civil rights law would be prosecuting New Orleans authorities for the gun seizures after Hurricane Katrina. That could either be under the conspiracy sections, or the criminal or civil sections that criminalize depriving people of civil rights under color of law. Mere advocacy is not and should not be criminal, because it is political speech explicitly protected by the First Amendment. Let us not toss out the First to try to save the Second.

6 Responses to “Civil Rights Enforcement”

  1. Dann in Ohio says:

    Criminalizing second amendment infringement… Well, here in Ohio it is a criminal offense to interfere with a hunter by trying to scare game off, etc.

    Police officers in Ohio are required by law to return a firearm to anyone with a CHL that they remove it from for safe-keeping during a traffic stop or other encounter as long as the person is not under arrest.

    I could see some potential here.

    Dann in Ohio

  2. Sebastian says:

    Those are acts. You can criminalize acts. Speech is an act, but it’s protected.

  3. Dann in Ohio says:

    Good point Sebastian, but interestingly – as you point out about New Orleans – often it is state authorities’ or law enforcement’s mis-guided or even illegal acts that seem to be the most violating of peoples second amendment rights…

    Dann in Ohio

  4. Diomed says:

    I agree, it should be covered by the provision of 42 USC. The problem is that the courts don’t really seem to care much. The Second Amendment still isn’t really treated as a right.

  5. anon says:

    USC Title 18 Section 242 covers what happened post Katrina with penalties up to and including death. But you need a prosecutor willing to do the right thing. You need a Jury that understands and endorses civil rights. And you need a Judge willing to do the right thing. The chances of finding any _one_ of those things is remote, let alone all three.

    Really, Title 18 Section 242 also covers prosecutors and judges not willing to do the right thing, but you still need a higher prosecutor and a higher judge willing to do the right thing.

    The USA doesn’t have prosecutors or judges willing to enforce the Constitution. Even those rare SCOTUS judges who acknowledge the document exists aren’t really willing to rule by it for fear of upsetting the gov’t apple-cart nee gravy-train…

  6. Chas says:

    The anti-gunners, such as those at the Brady Center, have formed organizations for the purpose of accomplishing the infringement of our Second Amendment rights. They have rented offices, hired staff, bought media and engaged in fundraising for the same purpose. They should be defined by law as a criminal enterprise for doing all that with the aim of destroying our rights.

    I’m fed up with these incessant attacks. It’s indecent! Yet they go on relentlessly. Gun owners should be allowed to live in peace, without all the predictable abuse from organized hate groups like the Brady Center, VPC, MAIG, Joyce Foundation, etc.

    “Let us not toss out the First to try to save the Second.”

    I didn’t call for that. We keep both, but specifically prohibit the abuse of the First for the purpose of destroying the Second – a very limited limitation.
    One cannot call for the death of the president – it is illegal. Shouting “fire” in a crowded theater, inciting a riot, conspiring with others to commit any crime – all illegal speech.
    Calling for the infringement of the right to keep and bear arms of every American should be equally illegal. The Second Amendment isn’t just another law, it’s part of our Bill of Rights, and should be protected as such. As Americans, we value freedom more than life. And that is freedom itself that we value, not the abuse of freedom to destroy freedom, as the anti-rights groups have relentlessly abused their freedom of speech against our right to keep and bear arms.

    A right may be used, but it may not be abused. We cannot up and fire our guns in a crowded theater, and they should not advocate for the destruction of our rights. We can’t use our guns to seize control of the government, and they should not use the First Amendment to have the government seize our guns. As gun owners we are under more restrictions than we can think of right away – there are lots and lots of them. The anti’s have no problem with any of those restrictions and they want lots more. What’s wrong with one restriction on the anti’s for a change? They, especially the ones in the media, act as if the First Amendment was sacred and untouchable, yet they have a laundry list of restrictions that they want imposed on our Second Amendment rights. Let’s put the Second Amendment off limits to their predations. After that, we’ll not bother them anymore, which is much better than the long march to destruction that they have planned for our gun rights and perhaps, eventually, for us ourselves.

    Since they have infringed on our Second Amendment rights, let us defend our rights by infringing on their First Amendment rights.
    Either we win by shutting them down, or we win by making them defend the importance of preserving freedom and constitutional rights, and thereby have them make our case for us. It is a win/win approach for us. I believe it should be our strategy.
    Let’s put them on the defensive. Let’s hear the Brady Center arguing in favor of freedom and constitutional rights for a change, instead of their usual worship of the false god of government restriction. Let’s put the shoe on the other foot for a change.
    Radical chic may lose some of its chicness among the anti-gun radicals when they’re wearing orange jumpsuits and eating baloney for breakfast behind bars, as they’ve made numerous gun owners do over the years. It’s time to turn the tables on them.
    While constantly pushing to force us to forfeit our guns, the anti’s have always acted as if they themselves had nothing to lose. Let us make that no longer so. Fines cost money and imprisonment costs freedom. I’d say that they stand to lose quite a bit, especially if the prospective fines are high and the potential imprisonment long. Let US threaten THEM with the government bogeyman for a change.
    At worst, it will educate them about how it feels to be the target of a gun-toting government. Perhaps we’ll even gain some sympathy from them. At best, it will shut them down and take all the money out of the game for them, so that we can enjoy our guns and our freedom in peace. It would certainly get America away from the bloody hells that the anti’s have created in horror cities like Chicago and D.C. Freedom works, gun control did not.
    Ban their freedom before they use it to ban ours!
    It’s not entirely a declaration of war that I’m proposing, but it’s something similar, though civilized, rule of law and all that. As I’ve said before, if they can’t behave themselves, then they should be fined and imprisoned. They have no qualms whatsoever about doing that to gun owners who don’t behave, and even to gun owners who do.
    They richly deserve to forfeit a tiny portion of their free speech; by their abuse, they have earned it. Let’s make it so!

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