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.
