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. Â I used to think that merely allowing lawsuits against those who would infringe my right to keep and bear arms would suffice. Â Not any more. Â If they cannot be civil and respect our rights, then off to the slammer with them. Â 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.