18 USC 242

[J-Bar]

I received my hardcopy of Dillon Precision's Blue Press catalog in the mail today. It has an article by Alan Korwin, "Gun Laws We Need, Part III: What About Due Process"? For those who do not get the hardcopy, here is a link to the online catalog. The article is on page 40:

https://www.dillonprecision.com/docs/March_2019_Blue_Press-compressed.pdf

Mr. Korwin is encouraging prosecution of those who sponsor anti-gun legislation under 18 USC 242, "Deprivation of Rights Under Color of Law," especially attempts at passing "red flag laws".

I researched this law using the common internet search engines but could not find examples or historical references to cases in which anyone has been prosecuted for attempting to pass anti-Second Amendment laws. I am not a lawyer and my understanding of such processes is quite limited.

I will appreciate comments and insights by those who are more informed than me on their reactions to this article, and information about any cases that have been brought to court under this law. Like so many other articles it sounds good on paper, but is it realistic?

Thanks for any thoughts you care to share.

My apologies if this subject has already been discussed. I hang out in the Blackpowder Forum mostly, since I am not a lawyer!!

 

[RickD427]

With all due respect to Mr. Korwin, he is being a real knucklehead.

18 USC 242 is a criminal statute and the elements of the statute must be proven beyond a reasonable doubt. Additionally, a criminal statute must be specific enough to place the violator on notice that their actions are proscribed by the law. In the case of so-called "Red Flag" laws, it would have to be clearly established that the "Red Flag" law clearly violated some right. We ain't there yet. We can believe that such laws violate the Second (and also the Fourth) Amendments. But until there is some case law holding that to be true, it's also possible for others to hold the belief that such laws are fully constitutional. There goes your criminal case - right down the drain.

 

[Frank Ettin]

In addition to Rick's comments, with which I agree, there's the old and well established doctrine of legislative immunity. Basically, a legislator may not be subject to liability for actions performed and decisions made within the scope of his responsibilities as a legislator. This principle has a long history under the Common Law and is enshrined in the Constitutions of a majority of the States.

Legislative immunity is arguably essential to effective implementation of the separation of powers and system of checks and balances core to our democratic republic. As the Supreme Court said in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), at 372 -- 374:

......The privilege of legislators to be free from arrest or civil process for what they do or say in legislative proceedings has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries. As Parliament achieved increasing independence from the Crown, its statement of the privilege grew stronger. In 1523, Sir Thomas More could make only a tentative claim. Roper, Life of Sir Thomas More, in More's Utopia (Adams ed.) 10. In 1668, after a long and bitter struggle, Parliament finally laid the ghost of Charles I, who had prosecuted Sir John Elliot and others for 'seditious' speeches in Parliament. Proceedings against Sir John Elliot, 3 How. St.Tr., 294, 332. In 1689, the Bill of Rights declared in unequivocal language: 'That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.' 1 Wm. & Mary, Sess. 2, c. II. See Stockdale v. Hansard, 9 Ad. & El. 1, 113—114 (1839).

Freedom of speech and action in the legislature was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation. It was deemed so essential for representatives of the people that it was written into the Articles of Confederation and later into the Constitution. Article V of the Articles of Confederation is quite close to the English Bill of Rights: 'Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress * * *.' Article I, § 6, of the Constitution provides: '* * * for any Speech or Debate in either House, (the Senators and Representatives) shall not be questioned in any other Place.'

The reason for the privilege is clear. It was well summarized by James Wilson, an influential member of the Committee of Detail which was responsible for the provision in the Federal Constitution. 'In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense.' II Works of James Wilson (Andrews ed. 1896) 38. See the statement of the reason for the privilege in the Report from the Select Committee on the Official Secrets Acts (House of Commons, 1939) xiv.

The provision in the United States Constitution was a reflection of political principles already firmly established in the States. Three State Constitutions adopted before the Federal Constitution specifically protected the privilege. The Maryland Declaration of Rights, Nov. 3, 1776, provided: 'That freedom of speech, and debates or proceedings in the Legislature, ought not to be impeached in any other court or judicature.' Art. VIII. The Massachusetts Constitution of 1780 provided 'The freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action, or complaint, in any other court or place whatsoever.' Part I, Art. XXI. Chief Justice Parsons gave the following gloss to this provision in Coffin v. Coffin, 1808, 4 Mass. 1, 27:

These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered....

Some may complain that this frees legislators from accountability for their acts. But our system was designed to hold them accountable at the ballot box. If we fail to do so, it's our fault.

Furthermore, the inability to impose civil or criminal liability on legislators for enacting laws we don't like doesn't prevent resort to the courts to try to invalidate those laws as unconstitutional.

 

[Frank Ettin]

...18 USC 242 is a criminal statute ...

I should mention that there is also a civil analog of 18 USC 242: 42 USC 1983. Spats McGee discusses one facet of 42 USC 1983 jurisprudence in this thread.

But 42 USC 1983 won't get around legislative immunity.

 

[J-Bar]

Gentlemen, thank you for your thorough responses.