Time: Sun Dec 14 17:55:38 1997 To: From: Paul Andrew Mitchell [address in tool bar] Subject: SLS: Bill of Rights (fwd) Cc: Bcc: sls References: <snip> > >Doug >www.gunowners.org > > Bill of Rights > > By > Richard Munday > >On the day the government announced its handgun ban proposals, >newspapers reported that a carriage full of passengers on a London >commuter train had been held up by armed robbers, one wielding a >pistol. It underscored the limited relevance of measures directed >against licensed gun owners (the Home Office has identified two >crimes a year in which legally held pistols are used, whilst the >police estimate that some 2,500 illegal guns enter the country every >week). (1) It underlined further the old wisdom of the Scottish MP >Andrew Fletcher, who observed three centuries ago that "he that is >armed, is always master of the purse of him that is unarmed". (2) > >That is an unfashionable wisdom today. The Home Office advised Lord >Cullen that "as a matter of policy", UK law did not permit the >citizen any weapon for his defense. (3) Apparently, the Home Office >had forgotten the Bill of Rights. > >The Bill of Rights of 1689. which is still in force as statue law and >remains our central constitutional document, (4) guarantees only two >rights of the individual, and one of these - the ultimate surety, >according to Blackstone, of the subject's other liberties - is the >right to arms. It was not arms for target shooting that the Bill of >Rights guaranteed, but arms for the citizen's personal defense. > >Perhaps the Home Office forgot the Bill of Rights because the arms >clause appears at first sight to be hedged about with qualification. >It declares: "That the Subjects that are Protestants, may have Arms >for their Defense suitable to their Condition, and as allowed by >Law". Upon investigation, however, the three apparent caveats prove >insubstantial. The right of Protestants to arms was affirmed because >it was they who had been disarmed "contrary to Law" after the >Restoration: but the right to defensive weapons was not restricted to >them, as was made clear by another Act of the same year recalling the >same right for Catholics. (5) The wording suitable to their condition >reflected the Bill of Rights' appeal to ancient usage (for the Bill >did not seek to create rights, but to reaffirm immemorial principles >of common law): the context was that of the assizes of arms which >served as a sort of martial medieval income tax, indexing the >weaponry the state could levy from the subject. Constitutional >commentary and case law would later confirm that this condition could >not be construed to exclude "people in the ordinary class of life" >(Rex v. Dewhurst, 1820). The third apparent caveat in the clause, >permitting arms as are allowed by Law, was perhaps no constraint at >all: in affirming the heritage of common law, the Bill of Rights >reiterated a refrain of complaints against misdeeds "contrary to Law" >or "against Law", and "according to Law" should arguably be seen in >the same linguistic context. If it was a caveat at all, it was a >circumstantial one relating to the laws against poaching and bearing >arms in terrorem populi, to terrorize the public. (6) Again, case law >upheld the Bill of Rights provision in both these contexts. In the >eighteenth century, for instance, we find repeatedly that the >possession of a dog can be held prima facie as evidence of intent to >poach, whereas a gun could be possessed under like circumstances >legitimately for self defense; (7) and even an Irishman carrying a >loaded revolver in the street in 1914 was ruled not to be committing >an offense in terrorem populi. (8) > >When Britain introduced her first Firearms Act in 1920, the Bill of >Rights provision was respected: the normal "good reason" for the >issue of a licence for a pistol was self defense. This remained the >case following the Firearms Act 1937; a change of policy was only >indicated when the Home Secretary stated in October 1946 that he >would "not regard the plea that a revolver is wanted for protection >of an applicant's person or property as necessarily justifying the >issue of a firearm certificate". (9) Perhaps because applicants were >advised that other "good reasons" were open to them, this shift of >policy went unchallenged. But if the right to weapons for defense >fell into abeyance, it was not thereby extinguished: in 1913 it had >been ruled in Bowles v. Bank of England that "the Bill of Rights >still remains unrepealed, and no practice or custom, however >prolonged, or however acquiesced in on the part of the subject, can >be relied on by the Crown as justifying any infringement of its >provisions". > >It might be argued that the first attempt to introduce firearms >legislation that really entrenches upon the Bill of Rights is that >presently before Parliament. Whilst the Bill of Rights does not >specifically refer to pistols, it could be contended that at least >until 1946 their selection as weapons of defense was regarded as >natural, and that where arms are carried for that purpose today (e.g. >police on protection duties, or individuals specially authorized to >carry personal protection weapons) pistols still remain the norm. >Moreover if pistols are prohibited, it might be asked what weapons >the subject is now permitted under the Bill of Rights to possess for >his defense. According to the Home Office's advice to Lord Cullen, >"as a matter of policy" the subject is allowed none. Does this policy >mean that public servants are being incited to break the law by >denying the subject his statutory rights? > >Faced with embarrassment, the government might rely on the doctrine >that no parliament may be bound by its predecessors, and seek if >necessary to repeal the provisions of the Bill of Rights. But in so >doing they must attack the principle of the Bill: for the Bill of >Rights claimed not to promulgate anything new, but rather to reaffirm >the "true antient and indubitable rights and liberties of the people >of this Kingdom" that should be upheld "in all times to come". >Against this the government must set the view of parliamentary >sovereignty expressed most eloquently by Dicey a century ago, that >would allow them to "make or unmake any law whatever". (10) Dicey >denied that "constitutional" laws were special; (11) though >interestingly his illustration of this looked at the Acts of Union >rather than the Bill of Rights, (12) and since he wrote, we have seen >parliament once again accept the notion of higher law. The doctrine >of parliamentary supremacy has, indeed, had a checkered history. >Sixty years before the Bill of Rights, the doctrine was affirmed (not >without political motivation) by Sir Edward Coke, who declared that >the power of parliament "cannot be confined" and recorded the >failures of the attempts of earlier parliaments to bind their >successors. (13) This did not deter parliament in 1689 from enacting >the Bill of Rights, any more than the doctrine enunciated by Dicey >prevented parliament binding its successors under Section 2 of the >European Communities Act 1972. (14) Perhaps, in the unlikely event >that the European Union survives for the next three hundred years and >its rulings do not in the meantime conflict with UK law, a future >constitutional lawyer will once again assert the absolute supremacy >of parliament, because it has not been tested. The situation might >then be analogous with the Bill of Rights now: for though the Bill >has been revised in matters of procedure, the thirteen essential >principles of the Declaration of Rights that were supposed to be >upheld "for all time to come" still stand. > >The absolute sovereignty of parliament was perhaps always something >of a legal fiction: constructive as a fiction, but potentially >destructive, even of its own ultimate purpose, as a reality. >Blackstone allowed in theory that parliament could act with >omnipotence even to the ruin of the country, and recalled >Montesquieu's prediction that even as Rome and Sparta and Carthage >had lost their liberty and perished, so in time would England at the >hands of her legislature; but in reality he did not think this would >come to pass. (15) He believed that there were natural rights upon >which government could not legitimately encroach. (16) Dicey, too, >allowed in theory that parliament could do anything that was not >"naturally impossible", but in practice saw that it was constrained >by political realities. (17) He was less sanguine, perhaps, than was >Blackstone about those constraints: and he looked to the introduction >of the referendum as an external check on the exercise of arbitrary >power by parliament. (18) In the seventy years since Dicey's death >the concerns he expressed have grown. In 1950 Craik-Henderson >reflected on how the changing composition of the House of Commons >with the emergence of the paid career politician had established >really a Cabinet rule, in a "servile but supreme parliament". (19) >The dangers were no longer theoretical: parliament, whose central >purpose had been to check arbitrary government, could now be its >tool. (20) > >The question whether parliament can now override the Bill of Rights, >is at once the question whether it is proper for it to do so. The >Bill of Rights set out the claims of parliament as part of the >constitutional framework of legitimate rule, in ignoring which it >declared that Restoration governments had acted unlawfully. The twin >pillars of that framework were the old principle of government by >common counsel, in which our notion of parliamentary sovereignty is >founded; and the ancient yardstick of custom, in which our notion of >precedent, and therewith of the rule of law, is rooted. These >enduring constitutional precepts were not merely the whim of 1689. > >Unfashionable though it might now be, the arms provision of the Bill >of Rights was also no passing foible. The common law right it >expressed was, indeed, as old as English history itself. (21) It was >enumerated by Blackstone as the final safeguard of the subject's >other rights, for "in vain would these rights be declared, >ascertained, and protested by the dead letter of the laws, if the >constitution provided no other method to secure their actual >enjoyment". (22) In recourse "to vindicate these rights, when >actually violated or attacked, the subjects of England are entitled, >in the first place, to the regular administration and free course of >justice in the courts of law; next, to the right of petitioning the >king and parliament for redress of grievances; and lastly, to the >right of having and using arms for self-preservation and defense". >(23) A hundred years later, Dicey's contemporary James Paterson would >still remark that "in all countries where personal freedom is valued, >however much each individual may rely on legal redress, the right of >each to carry arms - and these the best and the sharpest - for his >own protection in case of extremity, is a right of nature indelible >and irrepressible..." (24) > >It was not merely a theoretical right. In a material rather than a >cinemagraphic sense, British society was much more a "gun culture" in >the early years of this century than it is today. Conan Doyle's Dr. >Watson dropping his revolver into his pocket before walking the >London streets indeed illustrated what was then a commonplace. The >"Tottenham Outrage" of 1909 presents a telling vignette of the >reality of that time: (25) pursuing the perpetrators of an attempted >wages robbery across north London, the police borrowed four pistols >from passers-by; other armed citizens fulfilled what Dicey still >recognized as a legal obligation of the subject to halt felons by >joining in the chase themselves. (26) Today we might be shocked by >such a thought; Londoners then were apparently more shocked by the >idea of an armed robbery. In the years before the First World War, >when anyone could purchase a pistol, total firearms crime in the >metropolis ran at less than fortieth of that today. (27) > >Come forward to 1946, when the Home Office decided that self-defense > >would no longer necessarily be a "good reason" for a pistol licence, >and we find that armed robbery, the most significant index of serious >armed crime, totaled 25 incidents in London. Today we have that >number every two weeks. (28) Over the past thirty years, as >enforcement policies have steadily reduced the number of legal >firearms in circulation, firearms crime has risen in lockstep. In >1979 Professor Harding at Oxford warned that further gun controls >might prove "counter-productive", (29) and criminologists in a number >of countries have since then argued that reducing the levels of >legitimate firearms ownership might actually promote crime. (30) > >Perhaps, if the House of Lords pauses to remember the Bill of Rights >during the deliberation on the current Firearms Bill, its members >might address those unfashionable considerations. They might note >that even today in Britain, Home office figures (not shown to Lord >Cullen) indicate that in constabulary areas where legal firearms >ownership is higher, armed crime is lower: and that this is still >true if one factors out differences between town and country and >looks at the proportion of offenses committed with guns. (31) They >might remember too the wisdom of that father of penal reform, Cesare >Beccaria, who wrote two centuries ago: > >False is the idea of utility that sacrifices a thousand real >advantages for one imaginary or trifling inconvenience; that >would take fire from men because it burns, and water because one >may drown in it; that has no remedy for ills, except destruction. > >The laws that forbid the carrying of arms are laws of such a >nature. They disarm only those who are neither inclined nor >determined to commit crimes. Can it be supposed that those who >have the courage to violate the most sacred laws of humanity, the >most important of the code, will respect the less important and >arbitrary ones, which can be violated with ease and impunity, and >which, if strictly obeyed, would put an end to personal liberty - >so dear to men, so dear to the enlightened legislator - and >subject innocent persons to all the vexations that the guilty >alone ought to suffer? Such laws make things worse for the >assaulted and better for the assailants; they serve rather to >encourage than to prevent homicides, for an unarmed man may be >attacked with greater confidence than an armed man. They ought to >be designated as laws not preventive but fearful of crimes, produced >by the tumultuous impression of a few isolated facts, and not by >thoughtful consideration of the inconveniences and advantages of a >universal decree. (32) > >--------------------------------------------------------------------- > >1. "The Use of Licensed Firearms in Homicide - England & Wales", Home >Office RSD evidence to the Dunblane enquiry, reprinted in Munday & >Stevenson, Guns & Violence (Piedmont 1996) pp.321-326 & commentary >pp.341-363; Frank Cook MP. speech in Hyde Park 1.12.1996 & Hansard >4.12.1196 col. 1155. > >2. Andrew Fletcher, Political Works, 1749, p.7. > >3. "Comments on the Research Note in the Government Evidence (Annex >G)", Home RSD evidence to the Dunblane enquiry, reprinted in Munday & >Stevenson, op.cit., P.210. > >4. "The Bill of Rights is perhaps the nearest approach to a >constitutional code which we possess", Sir William Anson, The Law and >Custom of the Constitution, (5th Edn.,Oxford 1922). > >5. W&M Sess.1,c.15. > >6. Statute of Northampton 1328. > >7. Cf. Rex v. Filer, 1722; Bluet v. Needs, 1736; Rex v. Gardner, >1739; Malloch v. Eastly, 1744; Wingfield v. Stratford, 1752; Rex. v. >Hartley, 1782; Rex v. Thompson, 1787. > >8. Rex v. Smith, 1914; cf. Rex v. Dewhurst, 1820, & Rex v. Meade, >1903. > >9. C. Greenwood, Firearms Control (London 1972), p.72. > >10. A.V. Dicey, Introduction to the Study of the Law of the >Constitution, (8th Edn., London 1931) p.xviii. > >11. Ibid., p.84. > >12. Ibid., pp. 62-63. > >13. Edward Coke, The Fourth Part of the Institutes of the Laws of >England (1628: this edn. London 1747) p.36, p.43. > >14. Dicey himself observed that "The uncertain character of the >deference paid to the conventions of the constitution is concealed >under the current phraseology, which treats the successful violation >of a constitutional rule as a proof that the maxim is not in reality >part of the constitution" (Ibid.,p.437). > >15. William Blackstone, Commentaries on the Laws of England (Oxford >1765) Book I pp. 156-157. > >16. The provisions of the Bill of Rights and the other principal >constitutional documents reflected "that residuum of natural liberty, >which is not required by the laws of society to be sacrificed to >public convenience", ibid., Book I, p.125. Cf.p.70:"And it hath been >antient observation in the laws of England, that whenever a standing >rule of law, of which the reason perhaps could not be remembered or >discerned, hath been wantonly broken in upon by statutes or new >resolutions, the wisdom of the rule hath in the end appeared from the >inconveniences that followed the innovation"; & p.226: "James had >broken the original contract between king and people", the terms of >which were then declared after the Revolution. > >17. Dicey, op. cit., pp.69-79. > >18. "It is probable, if not certain, that any one, who realizes the >extent to which parliamentary government itself is losing credit from >its too close connection with the increasing power of the party >machine, will hold with myself that the referendum judiciously used >may...revive that faith in parliamentary government which has been >the glory of English constitutional history" ibid., p.c. > >19. "A politician is almost a term of abuse in many countries, but >fifty years ago in this country Members were universally believed to >be men of principle and of sufficient independence to oppose any >measures, from whatever source, that might adversely affect our >constitution or parliamentary system", J.J. Craik-Henderson, "The >Dangers of a Supreme Parliament", in Lord Campion et al., Parliament: >A Survey (London 1952) p.94. > >20. It is ironical, but perhaps unsurprising, that recent years have >seen calls for a new Bill of Rights: cf., e.g., A. Lester, A British >Bill of Rights (2nd edn., Institute for Public Policy Research 1996). > >21. Cf.S.Halbrook, That Every man be Armed: The Evolution of a >Constitutional Right Albuquerque 1984) pp.37-43. > >22. Blackstone, op.cit., Book I, p.136. > >23. Ibid., p.140. > >24. James Paterson, Commentaries on the Liberty of the Subject and >the Laws of England Relating to the Security of the Person (London >1877), p. 441. > >25. R.W. Gould & M.J. Waldren, London's Armed Police (London 1986) >pp.61-68. > >26. Dicey, op.cit., pp.493-495, citing Foster:" Where a felony is >committed and the felon flyeth from justice, or a dangerous wound is >given, it is the duty of every man to use his best endeavors for an >escape. And if in the pursuit the flying party is killed, he cannot >otherwise be overtaken, this will be deemed justifiable homicide. For >the pursuit was not barely warrantable; it is what the law requireth, >and will punish the willful neglect of". > >27. Statistics compiled 1911-1913 by the Commissioner of Police of >the Metropolis indicated an average of 75 incidents a year in which a >firearm was used or possessed (Greenwood,op.cit., p. 36); 1992-1994 >the Metropolitan Police recorded an average of 3,084 firearms >offenses (Home Office RSD). > >28. Munday & Stevenson, op.cit.,p.244. > >29. Ibid.,p.116. > >30. Cf.,e.g.,Professor Csaszar (University of Vienna):"Experience >shows that tightening the gun laws affects only the law abiding. >Their progressive disarmament can ultimately even promote crime, as >the probability of armed defense against aggression diminished" >(Osterreichische Richtezeitung 9/1994,p.180); Dr. Dobler (University >of Freiburg): "The lesson that a reduction in the number of firearms >available does not necessarily mean a reduction in the case of gun >crimes is also clearly applicable to Germany. It is indeed >conceivable that raising the level of firearms ownership would have a >depressive effect on crimes of violence and against property" (E. >Dobler, Schufwaffen and Schufwaffendriminalitat in der Bundesrepublik >Deutschland, Freiburg I. Br. 1994, p.207); & discussion in Munday & >Stevenson,op.cit.,pp.53-54,pp.236-245. > >31. Peter Jackson et al., "Was the Dunblane Enquiry Misled?" >available at >ftp://ftp.islandnet.com/ForgeConsulting/res/crimstat.zip. > >32. Cesare Beccaria, Dei Delitti e delle Pene (1764; English trans. >by H. Paolucci, On Crimes and Punishments,1963) pp. 87-88. >--------------------------------------------------------------------- > <snip>
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