Conspiracy to infringe

At the “urging” of ubu52 I finally decided to elaborate a bit on an edgy meme I’ve been pushing for quite some time. I’ve been saying something to the effect that people advocating for or enforcing anti-gun laws should be tried, convicted, and punished under 18 USC 241 and/or 18 USC 242. These are, essentially, laws that prohibit conspiracy to infringe the rights of others which are secured by the Constitution.

I’ve long known that those laws are not going to be enforced against anyone anytime soon. I’m pretty sure there are even some laws that give immunity to government officials under many circumstances.

I don’t care.

I’m taking a long term view of things. There have been many instances throughout history where activities that were perfectly legal or at least accepted by all “right thinking folks” became politically out of favor. Then, as long as the statute of limitations had not expired, prosecutors found pre-existing laws to enforce and punish those who engaged in the activity. The most famous example of this is probably the Nuremberg Trials.

Examples exist in our country too.

Lynching blacks 75 years ago was technically illegal but the risk of prosecution and conviction was pretty low. Decades later some of those people were convicted of murder.

The perpetrators of the internment of Japanese were never brought to justice but, decades later, payments were made to those people who were put into the camps.

Ubu52’s point in regard to people advocating for gun control is:

But they should have the freedom to do that, right? This is the USA, isn’t it? Joe is saying that they shouldn’t have the freedom to do whatever they want. I think he’s wrong.

At first glance, in this context, I’m pretty certain nearly everyone would agree with her. But, in todays context, what would be the legal response to advocating riots, lynching blacks, and assassinating politicians? Anyone doing that would be running a serious risk of prosecution if they or people they influenced began conspiring to implement some of those ideas.

The bottom line is that there are, and rightly so, limits to free speech. Those limits in general are, in our country and our time*, set at the point where someone else’s rights are in imminent danger of being violated. The classic “your right to swing your fist ends at my nose” says it more succinctly and less abstractly.

Think about that. The limits of free speech are the point at which someone else’s rights are in imminent danger of being violated.

You see where I’m going now, right?

This is a very clear logical path to prosecuting anti-gun people. Those that object to this logic either don’t regard being able to keep and bear arms as a “real right” or they are being logically inconsistent with those limits to free speech in existing law.

I’m not a lawyer but I’ve read enough court rulings to know that judges will almost always give at least lip service to logic. They may have to fabricate a logic scaffolding that only Rube Goldberg could admire but they will rule in a “logical” manner.

A logically consistent case can, and should, be made that advocating for the restriction of the right to keep and bear arms is no different than advocating for riots and lynching. People can and do die because they were denied their specific enumerated right to keep and bear arms. It is directly foreseeable that people will be injured because of people abusing their right to free speech.

The logic in my example is far, far less torturous that hundreds of court rulings. It could happen.

What I am trying to do with my “That will come up at your trial,”** quip is to change the culture such that it becomes possible to regard the deliberate infringement of other rights as a punishable offense. Yes, it’s sort of twisted in that I am advocating the restriction of one right to protect another right. It is not “twisted” in the sense that restricting the right to some sorts of speech it does not put people in danger of life or serious bodily harm such as restrictions on the right to keep and bear arms does.

Of course no judge today, or probably even ten years from now, will rule in such a manner. But I want the seeds planted. I want people to ask, “Why aren’t these people violating the law?” “Why aren’t these people being prosecuted?” I want the anti-gun people to pause and think about it.

I want to see the day, perhaps 20 years from now, when people are brought to trial for the crimes they are committing today. By the advocating the infringement of the specific enumerated right to keep and bear arms they caused the foreseeable, needless, injuries and deaths of tens of thousands and they should be brought to justice for that.

Update: L. Neil Smith points out we could, literally, have our own Nuremberg Trials in the U.S.

*Kevin links to a fascinating post which ties into this topic. It makes you think about other times and places if you are interested in a much bigger picture. For example, imagine a cultural shift where the advocating of the right to keep and bear arms is a punishable offense.
**Thanks to Sean for that line even if it was in a completely different context.


17 thoughts on “Conspiracy to infringe

  1. Of course, in some cases, the abuse is even more egregious – those advocating the murder or injury of gun owners. How this is different in any way from homophobic “hate speech” is beyond me; and you can (and people have been) prosecuted for that.

  2. It’s a really great post (needs editing though).

    I think it’s a bit more cut and dried than even you may think. You speak of limiting one right to protect another. I don’t see it that way at all. Examples; we have a right to move freely around this country, but we don’t have a right to trespass. That’s not limiting one right to protect another. Rather it’s simply protecting multiple rights. The right to freedom of movement was never and should never be construed as a right to move freely on other people’s property. It’s not a limit of one “right” to protect another, because no reasonable person advocates for a “right” to trespass. It is a full protection of multiple rights, which have NO conflict with one another. The right to free speech was never and should never be construed as protecting some imaginary “right to commit fraud”. There is no such right, and so the fact that fraud is a crime is NOT a limitation on free speech, see? This “limitation of rights” notion is a meme, a lie, dreamed up by desperate communists looking for leverage points. I won’t play along with that little game and neither should anyone else.

    Another, VERY important distinction here is that there is the right to life, and there is the right to keep and bear arms. They each exist on their own. You needn’t deprive someone of the former to be guilty as hell of the crime of violating the latter. Both rights are understood, acknowledged and protected. If you violate my right to keep and bear arms, it need not result in the loss of my life, or in my physical injury, for you to be quilty of the crime of violating my RKBA. A multiple injury (infringement of RKBA, plus loss of life or physical injury) may properly be a factor in your sentencing, but not your initial guilt.

    That’s just for starters, Man.

    • Your keeping and bearing OTHER PEOPLE’S arms (theft) is a crime, but that in no way should be seen as a “limitation” on RKBA because no reasonable person would expect that the second amendment protects the theft of arms. Therefore there is no “reasonable limitation” on RKBA in that regard. Same goes for shooting innocent people and celebratory gunfire at 2:00 AM in the middle of town. Those are not “limitations on the second amendment” to protect other rights, because no one would expect such behavior to be protected in the first place.

      The “limitation” of a right argument is nothing but a cheap ploy to justify further infringements. “If it properly limited there, then surely it is reasonable to limit it here, and here, and here, and oh, over here too (ad infinitum)”. Bullshit.

      If legislators are immune to the proscription of “deprivation of rights under color of law” then 242 has no meaning. Further, neither 241 or 242, in and of themselves, contain any mention of immune persons. It would seem to me that 242, at least, was designed for, and would apply specifically to, law makers and police, for who else would be acting “under color of law”?

  3. On a not altogether unrelated note; I’ve speculated for years now, in a very low energy, deep background sort of way, as to the possibility, remote though it may be, that ubu might be your (now estranged) wife.

    • No. The IP addresses she uses are in California. Also, the writing both in the ideas and phrasing does not match.

  4. Another argument tangent to consider, lefties keep bringing up how “limiting rights is accepted, blah blah, you can’t yell ‘fire’ in a crowded theater, blah.”

    So, point out that the reason you can’t (falsely) shout “fire” in a crowded theater is because it causes harm to people. My simply owning a firearm causes them no harm. If they try the “but it makes me scared, I have a right to be free from fear”, use the “what if I was black or jewish” line to point out their bigotry.

  5. I would argue that anyone has the right to express their opinion (no matter how offensive others may find it) up to and including advocating criminal activity, in their efforts to sway public opinion. Remember, at it’s core it is public opinion that determines if something is a crime or not*. (See also: recreational marijuana)

    IMHO where 241 (conspiracy) would come into play is when they sit down with others and begin to ‘formulate a plan of action’ to actively pursue those goals through legislation before public opinion has been fully swayed.

    In the legislative realm, groups meeting with lobbyists wouldn’t quite cross the line. Lobbyists meeting with legislators is closer, but not ‘quite’ crossing it, but once a legislator introduces a bill on the lobbyists behalf, then the conspiracy is ‘active’ and involves all those involved back to the original activist/lobbyist meeting (as the root source). I would even go so far as to include anyone who votes in favor of a rights violating bill as a co-conspirator, regardless of their lack of involvement in it’s creation/submission or whether or not it even passes.

    *Human laws being by their very nature philosophical creations. I offer Aztec human sacrifices as an example. Even with our protections of religious freedom, I doubt very much one would not be convicted of a crime today, yet in THAT society, it was as common as communion at a catholic mass is today.

  6. I say this with some trepidation because, usually, when — on those rare occasions — we disagree, it usually turns out you’re right and I’m wrong, but… I think you’re wrong.

    The advocacy against gun rights should not be made unlawful. It should be socially unacceptable and those making it should be social pariahs, but not against the law. I think abridging free speech rights in any wise is every bit as much a slippery slope as is — scorn quotes — “common sense” gun control.

    And, BTW, it is not reasonable to forbid the crying of “fire” in a crowded theater. Prior restraint of the individual on the part of the state is never — IMO — acceptable. But the individual raising such an outcry had better be prepared with an affirmative defense that there was indeed a fire and he was raising a legitimate alarm.

    Just as “He needed killing, Judge” should be considered an affirmative defense to homicide charges and the law should require the production of evidence to support the assertion.

    HOWEVER… Legislators who introduce bills… Should face firing squads, not only for their — as you so aptly note — conspiracy against rights, but also for their violation of their oaths of office. Oath-breaking should have consequences.


    • I’d need to check, but I believe that yelling “Fire!” in a crowded theater is not actually illegal or forbidden. However, unless there really is a fire, it’s not protected free speech, and you will be held responsible for any damages caused by your negligence or ill-intent. Just like rear-ending someone with your car is not illegal, but you will be held responsible for damages if mechanical failures and/or environmental factors can be sufficiently ruled out (i.e.: not an “accident” or “out of your control”).

      You won’t be arrested/charged for the act, but the negligence or malice which resulted in damage/injury/death could be seen as a criminal offense.

      Someone correct me if I’m wrong.

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  8. Actually, haven’t the first steps been taken down in Florida last year with the Pre-Emption Issue? When the local political hacks found out that they each could be held Liable and Fined and Jailed for passing anti-gun laws in their Bailiwicks, I believe the wind generated by them rushing to City Hall to get them repealed almost triggered a Hurricane Warning!

    But seriously, ALL Politicians should be fearful of their Constituents, always.

    • Indeed, as our elected representatives and thus employees they should be fearful of doing something that does not further our liberty and prosperity. There are some towns in Switzerland where when the townspeople attend the meetings of the councils they bring swords as symbols that they hold the ultimate power, not the councilors. Would that vivid reminder were commonplace in America!

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  11. Great post and I agree with your logic, however, what if the anti-gunners push for an amendment to repeal the 2nd and succeed? Amending the Constitution is perfectly legal, but in this case, it would work toward denying what’s always been recognized in this country as a natural right (except by those who don’t care)? Would that statute still apply?

    • As I said, this is rather edgy. I think I was pushing the envelope a little too far in some aspects.

      In particular I think that just talking about restrictions should be legal. Legislating restrictions should clearly be illegal. Places in between end up being a gray area.

      In your example Constitutional Amendments supersede legal statutes such as 18 USC 241 and 242, hence the proposal and implementation of a Constitutional Amendment probably cannot be considered to violate the statute.

  12. There is one slight problem with this – legislative immunity. Article I, section 6, clause 1 provides for Congressional immunity, which the courts interpret to cover any “legislative act.” Courts also apply the same immunity to state legislators under common law principles. The point is that we do not want our civil public discourse to turn to retribution when there is a change in power, as happens in less stable governments. This does not leave us powerless, though, since the Second Amendment recognizes our “safety valve” against government tyranny.

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