On Using the Civil Rights Acts

Joe explains his philosophy in regards to the use of the Civil Rights Acts to go after gun controllers. The criminal elements of the Civil Rights Acts, to my knowledge, have rarely been used in the Second Amendment context (Cruikshank is the only case I can think of). I agree that they generally should be, and in general, I don’t think the criminal aspects of the Civil Rights Acts are prosecuted often enough generally, especially against government agents. The usual remedy under those acts are civil in nature rather than criminal.

But I do have a very serious concern with targeting advocacy. Advocacy, even for very controversial and unconstitutional ideas, is generally protected by the First Amendment. Advocating a repeal of the 13th Amendment, for instance, would be advocating against civil rights, and would be detestable, but it’s also protected speech. It shouldn’t be a violation of the Civil Rights Acts to advocate for a law, even if that law is arguably or clearly unconstitutional. To limit the ability to advocate on certain topics to carve out an exception to the First Amendment, which I don’t find acceptable.

Now, that’s not to say there’s no use for the Civil Rights Acts in the gun context. Ray Nagin and his police chief should be reachable under the acts. So should every officer that participated in the post-Katrina confiscations. You can advocate for a law to do X, even if X is unconstitutional, but you can’t actually deprive someone of civil rights, or if you’re a Mayor or Police Chief, order someone’s civil rights be violated. That’s reachable under both the civil and criminal provisions of the Civil Rights Acts.

Likewise, advocacy doesn’t rise to the level of a conspiracy. Generally for a conspiracy to be a conspiracy legally, at least one person in the conspiracy has to take some act to move the conspiracy forward. So, for instance, if hypothetically Nagin and his police chief were to be prosecuted, but they found out that Mayor Bloomberg (just as a hypothetical) was involved in the planning, even if Bloomberg never participated in the confiscation, and did not issue any orders to affect it, he would still be reachable under conspiracy to deprive people of their civil rights.

On the issue of passing laws, we inherited the concept of parliamentary or legislative immunity from common law. There’s a lot of good reasons for its existence, but I’ve also heard good arguments that the various forms of sovereign immunity we imported from English law are wholly unsuitable for a free Republic such as ours. I’d be open to notions that legislators perhaps shouldn’t be immune if the laws they vote for later turn out to be held unconstitutional, but my concern would be that while perhaps legislators would be reluctant to pass laws that touched civil liberties, an unintended consequence likely would be the courts approaching review of legislative enactments with even more deference than they currently do, which is far too much in my opinion.

So I would like to see the Civil Rights Acts used more, both the civil and criminal aspects, but I think we have to be careful about carving out exceptions to the First Amendment, and criminalizing mere advocacy.

11 thoughts on “On Using the Civil Rights Acts”

  1. You couldn’t use the CRA to target advocacy groups anyhow. It’s not possible. You have to show the person acted under color of law first off (or show that the person caused someone else acting under color of law) to act in a way that effects an unconstitutional result and that result has to be well established to be unconstitutional. Nothing about the 2A is well established and it will be years before we have enough on the books to even begin to have this conversation.

    And BTW, in most if not all cases the USAG needs to make a decision to apply the criminal part of the CRA. In the absence of that, you are stuck looking for money damages.

    1. Looks to me like New York is violating the rights of their citizens under the color of law.

        1. Perhaps not, but he could probably point to the Constitution and say what they are doing is unconstitutional.

          I apologize, terraformer, that was flippant. I was venting, but not at you. I actually enjoy, learn from, and tend to agree with most of your comments. And I concede the reality of your point here.
          It’s just that I am an idealist, and I don’t believe statutory courts have any power to make any laws, “case-” or otherwise. Article I, Sec. 1, para. 1, sentence 1, of the Constitution of the United States of America: “ALL legislative [law-making] Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” (Emphasis mine.). There is no mention of courts here, and the language (“all”) is exhaustive and prohibitive.
          Common law courts can make “case-law,” but they operate where no statutory law applies, and as such are recognized by the Constitution (Seventh Amendment).
          I know, I know; nobody who is anybody agrees with me (except the Founding Fathers), but it’s the clear reading of the text, and allowing the powers that be to ignore that with impunity is why we’re in this to begin with. At what point do we start enforcing the strict text of this document and stop letting this out-of-control beast exceed the limits that text places on it?
          Whew! There, I’ve vented. I’ll shut up now. Thanks, terraformer, for putting up with my rant.
          Respectfully, Arnie

          1. The courts don’t have the power to enact statutes, but in common law systems, which ours is, there’s a long tradition of the courts molding the law through case law and precent.

            1. Understood, sir, but molding and making seem two very different things. Molding is like stretching a statute to cover an area not contemplated by its authors at the time (like the Internet to the authors of the First Amendment), whereas making new law would be restricting a fundamental right (such as arms, or trial by jury instead of “by drone”!), or establishing a new right which the Founders could indeed have contemplated but rejected (African-American freedom, women’s suffrage, abortion and sodomy). With slavery and suffrage, the courts refused to make “new law,” but waited for the States to properly amend the Constitution as per Article V. But with the last two, the courts exceeded their Constitutional authority, arrogating legislative powers, indeed, amendment powers, to themselves, and made new law, creating new rights that only the States, by “the explicit and authentic acts” of their citizens could constitutionally create. And now, with Heller’s “reasonable regulations” trumping “shall not be infringed,” they have turned their sights upon the Second Amendment. I know most consider it a victory, but Heller has now “made it officially constitutional” for these Democrat tyrants to contemplate banning AR-15 militia weapons – something the Second Amendment clearly forbids them from doing. To me, “reasonable regulation” was essentially amending the Second Amendment via illegal judicial fiat instead by the Article V procedure that the Constitution requires.
              That is the substance of my objection, sir.


  2. If advocacy could be made a criminal offense, homosexuality would still be a felony. And how far could we have gone in pursuit of shall-issue if some judge decided that such advocacy would cause gunfights in the streets?

  3. This is a thoughtful and appropriate response to all those “will be used at their trials” posts.
    Personally I just facepalm and hit the back button.

    1. Well, in some cases we probably could try them. It’s legal to prosecute someone for actually violating civil rights, or conspiring to do so, but advocacy of policy is different. There are exceptions to free speech for incitement (see Brandenberg v. Ohio). So someone giving a speech saying “We need to take all those guns away from those neanderthals,” is protected speech. Someone whipping up a crowd and then inciting to go break down the doors of their neighbors and take all the guns could be beyond First Amendment protection. Likewise if you had a rally where half the people were pro-gun protesters, and half anti-gun protesters, and someone riled up the crowd to go take the guns from the pro-gun protestors, that would likely be reachable as an offense. But the law generally gives broad protections for advocacy, even violent advocacy, and generally speaking I think the Courts got it right.

  4. I think the case for pursuing anything even vaguely resembling advocacy runs aground on the First Amendment pretty quickly.

    Pursuing something that constitutes action, on the other hand, might be a worthwhile endeavor. It’s time we went on offense.

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