Oct
04

ALL THE WAY DOWN THE SLIPPERY SLOPE: GUN PROHIBITION IN ENGLAND

 

ALL THE WAY DOWN THE SLIPPERY SLOPE: GUN PROHIBITION IN ENGLAND AND SOME LESSONS FOR CIVIL LIBERTIES IN AMERICA

Joseph E. Olson

[1] and David B. Kopel[2]

I. Introduction

Is it possible for a nation to go from wide-open freedom for a civil liberty, to near-total destruction of that liberty, in just a few decades? “Yes,” warn many American civil libertarians, arguing that allegedly “reasonable” restrictions on civil liberty today will start the nation down “the slippery slope” to severe repression in the future.[3] In response, proponents of today’s reasonable restrictions argue that the jeremiads about slippery slopes are unrealistic or even paranoid.[4]

This Essay aims to refine the understanding of slippery slopes by examining a particular nation that did slide all the way down the slippery slope.(p.400) When the twentieth century began, the right to arms in Great Britain was robust, and subject to virtually no restrictions. As the century closes, the right has been almost obliterated. In studying the destruction of the British right to arms, this Essay draws conclusions about how slippery slopes operate in real life, and about what kinds of conditions increase or decrease the risk that the first steps down a hill will turn into a slide down a slippery slope.

For purposes of this Essay, the reader will not be asked to make a judgement about the righteousness of the (former) British right to arms or the wisdom of current British gun prohibitions and controls. Instead, the object is simply to examine how a right that is widely respected and unrestricted can, one “reasonable” step at a time, be extinguished. This Essay pays particular attention to how the public’s “rights consciousness,” which forms such a strong barrier against repressive laws, can weaken and then disappear. The investigation of the British experience offers some insights about the current gun control debate in the United States, and also about ongoing debates over other civil liberties. This Essay does not require that the reader have any affection for the British right to arms; presumably, the reader does have affection for some civil liberties, and the Essay aims to discover principles about how slippery slopes operate. These principles can be applied to any debate where slippery slopes are an issue.

Part II of this Essay briefly sets forth the legal background of the British right to bear arms, as it developed from ancient times to the late nineteenth century. Part III describes the unimpaired British right to arms of the late nineteenth century and the changes in popular culture that began to threaten that right. Part IV describes how social unrest before World War I intensified the pressure for gun control, and finally resulted in the creation of a licensing system for rifles and handguns after the war. The gun control system was gradually expanded in the 1930s, relaxed in enforcement during World War II when Nazi invasion loomed, and then re-imposed with full force. Part V focuses on the turbulent 1960s, and how the government enacted a mild licensing system for shotguns, in order to deflect public cries for re-imposition of the death penalty, following the murder of three policemen by criminals using pistols. Part VI describes how the British gun licensing system is administered today and how police discretion is used to make the system much more restrictive, even without changes in statutory language. Part VII analyzes the conditions that have created the momentum for the gradual prohibition of all firearms ownership in Great Britain, and how isolated but sensational crimes are used as launching pads for further steps to prohibition. In Part VIII the Essay looks at how armed self-defense has, without statutory change, gone from being a “good reason” for the granting of a gun license to being prohibited. The decline of other British civil liberties in the late twentieth century, such as freedom of speech, protection from warrantless searches, and criminal procedure safeguards, is discussed in Part (p.401)IX. Finally, Part X summarizes and elaborates on some of the conditions that make possible a fall down the slippery slope.

Throughout this Essay, parallels are drawn between British history and the modern gun control debate in the United States, because the issue of whether any particular set of controls will set the stage for gun prohibition is one of the hotly contested questions in the contemporary discussion.

 

II. Wrenching Freedom From the King–The 1689 English Bill of Rights and the Right to Arms

It began as a duty, operated as a mixed blessing for Kings, and wound up as one of the “true, ancient, and indubitable”[5] rights of Englishmen. From as early as 690,[6] the defense of the realm rested in the hands of ordinary Englishmen. Under the English militia system, every able-bodied freeman was expected to defend his society and to provide his own arms, paid for and possessed by himself.[7] It appears that the wearing of arms was widespread. The only early limitations placed on gun possession were for the misuse of arms by appearing in certain public places “with force” under a 1279 royal enactment[8] or by using them “in affray of the peace.”[9] These limitations were construed to prohibit only the possession of arms “accompanied with such circumstances as are apt to terrify the people”[10] but not the mere “wearing [of] common weapons” for personal defense.[11]

The Tudor monarchs tried to prevent hunting with crossbows, and later with firearms, by commoners by setting a minimum annual income from land as a condition of hunting, or of possession of crossbows and handguns.[12] They were unsuccessful and, after first liberalizing the prohibitions, Henry VIII’s government repealed them in 1546.[13] As the Tudor era ended, individual armament (typically with long bows) and an individual obligation to serve in the militia was the norm for Englishmen. Historians view the widespread individual ownership of arms as an important factor in the “moderation of monarchial rule and the development of the concept of individual liberties”[14] in England during a period when absolute, divine-right royal rule was expanding as the norm in continental Europe.[15](p.402)

In the period leading up to the Glorious Revolution, the Stuart monarchs adopted a radical policy of personal disarmament toward those who politically threatened their royal prerogatives. This included the militia of armed freemen as well as direct political rivals. Through a series of parliamentary enactments, they tried registration of possession, registration of sales, hunting restrictions,[16] possession bans ostensibly aimed at controlling illegal hunting, restrictions on personal arms possessed by the militia,[17] warrantless searches, and confiscations.[18] By 1689, the Stuart monarchs had succeeded, not at full disarmament, but at alienating their “allies” as well as their opponents and losing their throne in a bloodless revolution.

When William of Orange and Mary arrived to begin their reign on England’s throne, the country’s political leaders recognized the need to rein in any tendency of the new monarchs toward the excessive royal power the nation had just suffered under James II. Thus, William and Mary were required to accept a “declaration of rights” as a definitive statement of the rights of their subjects. That declaration was later enacted as the Bill of Rights.[19] The Declaration of Rights was prepared in great haste, limited to noncontroversial matters, and viewed as a statement of the existing rights of Englishmen. It contained only two individual rights applicable to the general public: to petition and to arms. Furthermore, it only effectively limited the monarch, not the Parliament. Even though the Bill of Rights was by its terms to be upheld “in all times to come,” nothing one Parliament does can constrain the actions of subsequent Parliaments.[20] That was the problem with the Bill of Rights being enacted as statute, however important a statute. The Anglo-American legal world would not implement a genuine constitution until 1776, when newly-independent Virginia created her first.

The experience under the Stuarts, demonstrating the political uses of disarmament, convinced many in the Convention Parliament that there was great danger to the security of English liberties from a disarmed citizenry.[21] In Commons, member after member complained about the loss of liberty (p.403)they had personally suffered when disarmed of their private arms by actions “authorized” under the 1662 Militia Act, the 1671 Game Act, and various other laws. Since the new monarchy was to be a limited one, the members saw both a personal and national interest in the ability of ordinary Englishmen to possess their own defensive arms to restrain the Crown. After much discussion and numerous revisions, the right to arms evolved into a statement that “the Subjects which are protestants may have Arms for their Defense suitable to their Conditions and as allowed by law.”[22] Historian Joyce Lee Malcolm concluded that:

[t]he last-minute amendments that changed that article from a guarantee of a popular power into an individual right to have arms was a compromise forced on the Whigs. The vague clauses about arms “suitable to their conditions and as allowed by law” left the way open for legislative clarification and for perpetuation of restrictions …. But though the right could be circumscribed, it had been affirmed. The proof of how comprehensive the article was meant to be would emerge from future actions of Parliament and the courts.[23]

By the time of the American Revolution, legislation and court decisions had made it clear that Englishmen had a real right to possess arms,[24] even during times of turmoil such as the anti-Catholic Gordon riots in London in 1780. The Recorder of London, the equivalent of a modern-day city’s general counsel, gave this opinion in 1780:

The right of his majesty’s Protestant subjects, to have arms for their own defense, and to use them for lawful purposes, is most clear and undeniable. It seems, indeed, to be considered, by the ancient laws of this kingdom, not only as a right, but as a duty; for all subjects of the realm, who are able to bear arms are bound to be ready, at all times, to assist the sheriff, and other civil magistrates, in the execution of the laws and the preservation of the public peace. And that right, which every Protestant most unquestionably possesses, individually, may, and in many cases must, be exercised collectively, is likewise a point which I conceive to be most clearly (p.404)established by the authority of judicial decisions and ancient acts of parliament, as well as by reason and common sense.[25]

Blackstone’s celebrated treatise lauded the individual right to arms as one of the “five auxiliary rights of the subject,” and explained that the right was for personal defense against criminals, and for collective defense against government tyranny.[26] He further explained that “in cases of national oppression, the nation has very justifiably risen as one man, to vindicate the original contract subsisting between the king and his people.”[27] The Englishman’s boast that he and his countrymen were “the freest subjects under Heaven” because he had the right “to be guarded and defended … by [his] own arms, kept in [his] own hands, and used at [his] own charge under [his] Prince’s Conduct”[28] was true. This did not mean, of course, that Englishmen enjoyed perfect civil liberty, as those in the United States frequently pointed out. Englishmen did, however, enjoy much greater freedom and participation in government than did the people of Continental Europe, and it was England’s conventional wisdom that the freedom of the English people was closely tied to their right to possess arms, and thereby deter any thought of usurpation by the government.

From the day when the Stuarts fled to France, there were virtually no restrictions on an Englishman’s right to own and carry firearms, providing that he did not hunt with them, for the next two centuries. The only notable exceptions were the Seizure of Arms Act and the Training Prevention Act, which banned drilling with firearms and allowed confiscation of guns from revolutionaries in selected regions.[29] The Acts were the product of social unrest related to the Industrial Revolution, climaxing in the 1819 Peterloo Massacre, in which government forces killed unarmed demonstrators. The Acts expired by their own terms in 1822. Even while the 1819 Acts were in force, the case of Rex v. Dewhurst explained that the “suitable to their condition” clause in the Bill of Rights’s “Arms for their Defense” guarantee did not allow the government to disarm “people in the ordinary class of life.”[30](p.405)

 

III. The Late Nineteenth Century

In the final decades of the last century, Great Britain was much like the United States in the 1950s. There were almost no gun laws, and almost no gun crime. The homicide rate per 100,000 population per year was between 1.0 and 1.5, declining as the century wore on.[31] Two technological developments, however, began to work together to create in some minds the need for gun control. The first of these was the revolver. Revolvers had begun to achieve mass popularity when Colonel Samuel Colt showed off his models at London’s 1851 Great Exhibition of the Works of Industry in All Nations.[32] Revolver technology advanced rapidly, and by the 1890s, revolver design had progressed about as far as it could, with subsequent developments involving fairly minor tinkering.

As revolvers got cheaper and better, concern arose regarding the increase in firepower available to the public. And in fact, the change from one or two shot weapons to the repeat-firing, five or six shot revolver represented perhaps the greatest advance in small arms civilian firepower that has ever occurred. Compared to the seemingly more benign single-shot muzzle-loaders of the past, the revolver seemed a frightening innovation.[33]

Revolvers were also getting less expensive, and concerns began to grow about the availability to criminals of cheap German revolvers.[34] Cheap guns were, in some eyes, associated with hated minority groups. For example, in the late 1860s, the London Lloyd’s Newspaper blamed a crime wave on “foreign refuse” with their guns and knives. The newspaper stated that “[t]he revolver’s appearance … we owe to the importation of reckless characters from America …. The Fenian [Irish-American] desperadoes have sown weapons of violence in our poorer districts.”[35]

All of these developments have their parallels in modern United States. The current popularity of semi-automatic pistols, with a magazine capacity of thirteen, fifteen, or seventeen rounds, frightens some people who view the old six-shooter as a harmless traditional weapon. Furthermore, the fact that semi-automatics were invented over 100 years ago does not stop the press from portraying them as dangerous new guns, just as the revolvers of the 1850s were portrayed as dangerous new guns in the 1880s.

Prejudice and discrimination against ethnic groups persist. While United States gun control advocates do not complain much about Irish immigrants with guns, they do warn about the dangers of Blacks armed with “ghetto guns.” The derisive term for inexpensive handguns, “Saturday Night (p.406)Specials,” has a racist lineage to the term “niggertown Saturday night.”[36] The phrase “niggertown Saturday night” apparently mixed with the nineteenth century phrase “suicide special,” which is a cheap single action revolver, to form “Saturday night special.”

Revolvers were one technological development that began to make some Britons rethink the desirability of the right to bear arms. The second development was the growth of the mass circulation press. Newspapers, like guns, had been around for quite a while, but the late nineteenth century witnessed several printing innovations that made printing of vast quantities of newspapers extremely cheap.

The Walter press, patented in England in 1866, introduced stereotype plates. Printers discovered ways to make sheets of any desired length, thereby allowing rolls of paper to be fed into cylinder presses, and greatly accelerating printing speed. Machines for folding newspapers were brought on-line. By the late nineteenth century, typesetting machines were coming into use. All of these developments made possible the production of low-cost newspapers, which even poor people could buy every day. As audiences expanded, papers became increasingly sensationalist, and the “yellow journalism” of publishers such as the United States’ Joseph Pulitzer was born.

Hearst’s [errata: Pulitzer’s] British counterparts were fervently devoted to sensation, and especially loved lurid crime stories. In 1883 a pair of armed burglaries in the London suburbs set off a round of press hysteria about armed criminals. The press notwithstanding, crime with firearms was rare. As this Essay will detail, the propensity of the press to sensationalize what sociologists call “atrocity tales” to create “moral panics” while demanding greater government regulation is one of the factors dramatically increasing the risk that a nation will descend down a slippery slope; but while media sensationalism can spur action, media attention is not necessarily sufficient by itself to produce results. Eighteen-eighty-three did see the first serious attempt at gun control in many decades, when Parliament considered and rejected a bill to ban the “unreasonable” carrying of a concealed firearm. In 1895, strong pistol controls were rejected by a two to one margin in the House of Commons.

The developments of the British press, and the press attitude towards crime and guns in the late 19th century, have their own parallels in the United States today. Television news is cutting loose its last ties to traditional standards imposed from the days of print journalism. In the “infotainment” produced by organizations such as NBC News, depiction of reality is less important than the production of entertaining and compelling “news” pieces. Thus, when the “assault weapon” panic of 1989 broke out, television journalists paid little attention to whether “assault weapons” actually were the “weapon of choice” of criminals. Instead of being on the reality of gun (p.407)crime, the focus was on the sensational footage of guns firing full automatic, while newscasters decried the availability of semi-automatics. Police statistics show that so-called assault weapons are used in about 1% of gun crime.[37] In other contexts, displaying one thing while talking about another would be decried as fraud.

As the nineteenth century came to a close in Britain the press had not as yet persuaded the public to adopt gun controls. Buyers of any type of gun, from derringers to Gatling guns faced no background check, no need for police permission, and no registration. As criminologist Colin Greenwood wrote, “[a]nyone, be he convicted criminal, lunatic, drunkard or child, could legally acquire any type of firearm.”[38] Additionally, anyone could carry any gun anywhere. The English gun crime rate was at its all-time low. A somewhat similar situation prevailed on the American frontier in the 1880s where everyone who chose to be, was armed, and “[t]he old, the young, the unwilling, the weak and the female … were … safe from harm.”[39] The frontier crime rates, except for the results of “voluntary” bar fights among dissolute young men, were less than a tenth of the rates in modern-day United States and British cities.

The official attitude about guns was summed up by Prime Minister Robert Gascoyne-Cecil, the Marquess of Salisbury, who in 1900 said he would “laud the day when there is a rifle in every cottage in England.” Led by the Duke of Norfolk and the mayors of London and Liverpool, a number of gentlemen formed a cooperative association that year to promote the creation of rifle clubs for working men. The Prime Minister and the rest of the aristocracy viewed the widespread ownership of rifles by the working classes as an asset to national security, especially in light of the growing tension with imperial Germany.[40] While shotguns were seen as bird-hunting toys of the landed gentry, rifles were lauded as military arms suitable for everyone. Yet, within a century, the right to bear arms in Britain would be well on the road to extinction. The extinction had little to do with gun ownership itself, but instead related to the British government’s growing mistrust of the British people, and the apathetic attitude of British gun owners.(p.408)

 

IV. The Early Twentieth Century through World War II

 

A. The First Step

 

In 1903, Parliament enacted a gun control law that appeared eminently reasonable. The Pistols Act of 1903 forbade pistol sales to minors and felons and dictated that sales be made only to buyers with a gun license. The license itself could be obtained at the post office, the only requirement being payment of a fee. People who intended to keep the pistol solely in their house did not even need to get the postal license.[41]

The Pistols Act attracted only slight opposition, and passed easily. The law had no discernible statistical effect on crime or accidents. Firearms suicides did fall, but the decline was more than matched by an increase in suicide by poisons and knives.[42] The homicide rate rose after the Pistols Act became law, but it is impossible to attribute this rise to the new law with any certainty. The bill defined pistols as guns having a barrel of nine inches or less, and thus pistols with nine-and-a-half inch barrels were soon popular.

While the Act was, in the short run, harmless to gun owners, the Act was of considerable long-term importance. By allowing the Act to pass, British gun owners had accepted the proposition that the government could set the terms and conditions for gun ownership by law-abiding subjects.[43] As Frederick Schauer points out, for a government body to decide “X and not Y” means that the government body has implicitly asserted a jurisdiction to decide between X and Y. Hence, to decide “X not Y” is to assert, indirectly, an authority in the future to choose “Y not X.”[44] Thus, for Parliament to choose very mild gun controls versus strict controls was to assert Parliament’s authority to decide the nature of gun control.[45] As this Essay shall discuss in regards to the granting of police authority over gun licensing, establishing the proposition that a government entity has any authority over a subject is an essential, but not sufficient, element for a trip down the slippery slope.

 

B. Dangerous Weapons

 

The early years of the twentieth century saw an increasingly bitter series of confrontations between capital and labor throughout the English-speaking world. In Britain, the rising militance of the working class was beginning to make the aristocracy doubt whether the people could be trusted with arms. When American journalist Lincoln Steffens visited London in (p.409)1910, he met leaders of Parliament who interpreted the current bitter labor strikes as a harbinger of impending revolution.[46] The next set of gun control initiatives reflected fears of immigrant anarchists and other subversives.

As the coronation of George V approached, one United States newspaper, the Boston Advertiser, warned about the difficulty of protecting the coronation march “so long as there is a generous scattering of automatic pistols among the 70,000 aliens in the Whitechapel district.” The paper fretted about aliens in the United States and Britain with their “automatic pistols,” which were “far more dangerous” than a bomb. The Advertiser defined an “automatic pistol” as a “quick-firing revolver,” and called for gun registration, restrictions on ammunition sales, and a ban on carrying any concealed gun, all with the goal of “disarming alien criminals.”[47]

What was the “automatic pistol/quick-firing revolver” that so concerned the newspaper? In 1896, the British company of Webley-Fosberry introduced an “automatic revolver.”[48] It reloaded with the same principle as a semi-automatic pistol, but held the ammunition in a cylinder, like a revolver. It was an inferior gun. If not gripped tightly, it would misfire. Dirt and dust made the gun fail. Although the gun’s most deadly feature was, supposedly, its rapid-fire capability, rapid firing also made the gun malfunction.[49] The so-called automatic revolver that was “more dangerous than the bomb” was more dangerous in the minds of overheated newspaper editorialists than in reality. In this way it is comparable to today’s “undetectable plastic gun,” which is non-existent, and the “cop-killer teflon bullet,” which was actually invented by police officers.[50]

As the Webley-Fosberry and its modern equivalents show, media pressure for new laws does not necessarily have to be based on real-world conditions. That is, an item need not necessarily be particularly dangerous in (p.410)order for the media to describe it as dangerous. For example, whatever else may be said about marijuana, we now know that the “Reefer madness” stories from the mass media in the 1920s and 1930s were scientifically inaccurate; marijuana does not impel users to commit violent crimes. However, when the media and public know little about an item, such as Webley-Fosberry revolvers, self-loading firearms, or marijuana, it is easy for reporters to talk themselves and their audience into a panic.

 

C. Dangerous People

 

Whatever the actual dangers of the automatic revolver, immigrants scared authorities on both sides of the Atlantic. Crime by Jewish and Italian immigrants spurred New York State to enact the Sullivan Law in 1911, which required a license for handgun buying and carrying, and made licenses difficult to obtain. The sponsor at the Sullivan Law promised homicides would decline drastically. Instead, homicides increased and the New York Times found that criminals were “as well armed as ever.”[51]

As in modern United States, sensational police confrontations with extremists also helped build support for gun control. In December 1910, three London policemen investigating a burglary at a Houndsditch jewelry shop were murdered by rifle fire. A furious search began for “Peter the Painter,” the Russian anarchist believed responsible. The police uncovered one cache of arms in London: a pistol, 150 bullets, and some dangerous chemicals. The discovery led to front-page newspaper stories about anarchist arsenals, which were non-existent, all over the East End of London. The police caught up with London’s anarchist network on January 3, 1911, at 100 Sidney Street. The police threw stones through the windows, and the anarchists inside responded with rifle fire. Seven-hundred and fifty policemen, supplemented by a Scots Guardsman unit, besieged Sidney Street. Home Secretary Winston Churchill arrived on the scene as the police were firing artillery and preparing to deploy mines. Banner headlines throughout the British Empire were already detailing the dramatic police confrontation with the anarchist nest. Churchill, accompanied by a police inspector and a Scots Guardsman with a hunting gun, strode up to the door of 100 Sidney Street; the inspector kicked the door down. Inside were the dead bodies of two anarchists. “Peter the Painter” was nowhere in sight. London’s three-man anarchist network was destroyed.[52] The “Siege of Sidney Street” turned out to have been vastly overplayed by both the police and the press. A violent fringe of the anarchist movement was, however, a genuine threat; President William McKinley was only one of several world leaders assassinated by anarchists.(p.411)

While the “Siege of Sidney Street” convinced New Zealand to tighten its own gun laws, the British Parliament rejected new controls. Parliament turned down the Aliens (Prevention of Crime) Bill, that would have barred aliens from possessing [errata: and carrying] firearms without permission of the local Chief Officer of Police.[53] The 1993 Virginia legislature had less fortitude than the 1911 British Parliament. After a Pakistani national used a Kalashnikov rifle to murder three people outside of CIA headquarters, the Virginia legislature rushed to enact broad restrictions on gun carrying by legal resident aliens.[54]

British resistance to gun controls finally cracked in 1914 when Great Britain entered The Great War, later to be dubbed World War I. The government imposed comprehensive, stringent controls as “temporary” measures to protect national security during the war. Similarly, the United States continues to live under various “temporary” or “emergency” restrictions on liberty enacted during the First or Second World Wars.[55] Few restrictions on liberty, especially when imposed by fiat, are announced as permanent. Even when Julius Caesar and, later, Octavian, destroyed the Roman Republic by making themselves military dictators for life, they claimed to be exercising only temporary powers because of an emergency.

Randolph Bourne observed that “war is the health of the state,” and it was World War I that set in motion the growth of the British government to the size where it could begin to destroy the right to arms, a right that the British people had enjoyed with little hindrance for over two centuries. After war broke out in August 1914, the British government began assuming “emergency” powers for itself. “Defense of the Realm Regulations” were enacted that required a license to buy pistols, rifles, or ammunition at retail. As the war came to a conclusion in 1918, many British gun owners no doubt expected that the wartime regulations would soon be repealed and Britons would again enjoy the right to purchase the firearm of their choice without government permission. But the government had other ideas.

The disaster of World War I had bred the Bolshevik Revolution in Russia. Armies of the new Soviet state swept into Poland, and more and more workers of the world joined strikes called by radical labor leaders who predicted the overthrow of capitalism. Many Communists and other radicals thought the World Revolution was at hand. All over the English-speaking world governments feared the end. The reaction was fierce. In the United States, Attorney General A. Mitchell Palmer launched the “Palmer raids.” Aliens were deported without hearings, and United States citizens were searched and arrested without warrants and held without bail. While the United States was torn by strikes and race riots, Canada witnessed the government (p.412)massacre of peaceful demonstrators at the Winnipeg General Strike of 1919.

In Britain, the government worried about what would happen when the war ended and the gun controls expired. A secret government committee on arms traffic warned of danger from two sources: the “savage or semi-civilized tribesmen in outlying parts of the British Empire” who might obtain surplus war arms, and “the anarchist or ‘intellectual’ malcontent of the great cities, whose weapon is the bomb and the automatic pistol.”[56] At a Cabinet meeting on January 17, 1919, the Chief of the Imperial General Staff raised the threat of “Red Revolution and blood and war at home and abroad.” He suggested that the government make sure of its arms. The next month, the Prime Minister was asking which parts of the army would remain loyal. The Cabinet discussed arming university men, stockbrokers, and trusted clerks to fight any revolution.[57] The Minister of Transport, Sir Eric Geddes, predicted “a revolutionary outbreak in Glasgow, Liverpool or London in the early spring, when a definite attempt may be made to seize the reins of government.” “It is not inconceivable,” Geddes warned, “that a dramatic and successful coup d’etat in some large center of population might win the support of the unthinking mass of labour.” Using the Irish gun licensing system as a model, the Cabinet made plans to disarm enemies of the state and to prepare arms for distribution “to friends of the Government.”[58]

Although popular revolution was the motive, the Home Secretary presented the government’s 1920 gun bill to Parliament as strictly a measure “to prevent criminals and persons of that description from being able to have revolvers and to use them.” In fact, the problem of criminal, non-political misuse of firearms remained minuscule.[59] Of course 1920 would not be the last time a government lied in order to promote gun control.

In 1989 in the United States, various police administrators and drug enforcement bureaucrats set off a national panic about “assault weapons” by claiming that semi-automatic rifles were the “weapon of choice” of drug dealers and other criminals. Actually, police statistics regarding gun seizures showed that the guns accounted for only about 1% of gun crime. Most people in the United States swallowed the 1989 lie about “assault weapon” crime, and most Britons in 1920 swallowed the lie about handgun crime. Indeed, the carnage of World War I, which was caused in good part by the outdated tactics of the British and French general staffs, had produced a general revulsion against anything associated with the military, including rifles (p.413)and handguns.

Thus the Firearms Act of 1920 sailed through Parliament. Britons who had formerly enjoyed a right to arms were now allowed to possess pistols and rifles only if they proved they had “good reason” for receiving a police permit.[60] Shotguns and airguns, which were perceived as “sporting” weapons, remained exempt from British government control.

Similarly, the horror of use of poison gas during World War I’s trench warfare made the Firearms Act’s ban on small CS self-defense spray canisters seem unobjectionable.[61] In the hands of British citizens, CS was considered by the central government to be impossibly dangerous, requiring complete prohibition–much more dangerous than a rifle or shotgun. Yet when the CS is in the hands of the government, the central government now mandates that CS be considered benign. When local police authorities protested the Home Secretary’s issuance of CS gas and plastic bullets to local police forces and argued that the central government had no authority to force police departments to employ dangerous weapons against their will, the court ruled for the central government on the theory that the Crown’s “prerogative power to keep the peace” allowed the Home Secretary to “do all reasonably necessary to preserve the peace of the realm.”[62]

The treatment of CS is emblematic of the transformation of British arms policy during the twentieth century. Principles about the use of force were changed from the traditional Anglo-American to the Weberian, with the monopoly of force becoming crucial to the state’s definition of its rightful power. Instead of worrying about cheap German handguns among the people, the British would have been better to guard against fancy German ideas among the government.

 

D. The Firearms Act

 

In the early years of the Firearms Act the law was not enforced with particular stringency, except in Ireland, where revolutionary agitators were demanding independence from British rule, and where colonial laws had already created a gun licensing system.[63] Within Great Britain, a “firearms certificate” for possession of rifles or handguns was readily obtainable. Wanting to possess a firearm for self-defense was considered a “good reason” for being granted a firearms certificate.

The threat of Bolshevik revolution, which had been the impetus for the (p.414)Firearms Act, had faded quickly as the Communist government of the Soviet Union found it necessary to spend all its energy gaining full control over its own people, rather than exporting revolution. Ordinary firearms crime in Britain, which was the pretext for the Firearms Act, remained minimal. Despite the pacific state of affairs, the government did not move to repeal the unneeded gun controls, but instead began to expand the controls.

In 1934, a government task force, the Bodkin Committee, was formed to study the Firearms Act. The Committee collected statistics on misuse of the guns that were not currently regulated, such as shotguns and airguns, and collected no statistics on the guns under control, namely rifles and handguns. The Committee concluded that there was no persuasive evidence for repeal of any part of the Firearms Act.[64] Since the Bodkin Committee had avoided looking for evidence about how the Firearms Act was actually working, it was not surprising that the Committee found no evidence in favor of decontrol.

Spurred by the Bodkin Committee, the British government in 1936 enacted legislation to outlaw (with a few minor exceptions) possession of short-barreled shotguns and fully automatic firearms.[65] The law was partly patterned after the 1934 National Firearms Act in the United States, which taxed and registered, but did not prohibit, such guns.[66] In 1973 and 1988, when the government was attempting to expand controls still further, gun control advocates claimed that the Bodkin Committee report was clear proof of how well the Firearms Act of 1920 was working, and why its controls should be extended to other guns.[67]

As a result of alcohol prohibition, the United States in the 1920s and early 1930s did have a problem with criminal abuse of machine guns, a fad among the organized crime gangsters who earned lucrative incomes supplying bootleg alcohol, although most such firearms were owned by peaceable citizens. The repeal of Prohibition in 1933 had sent the American murder rate into a nosedive, but in 1934 Congress went ahead and enacted the National Firearms Act anyway.

In Britain, there had been no alcohol prohibition, and hence no crime problem with automatics, or other guns. Before 1920, any British adult could purchase a machine gun; after 1920, any Briton with a Firearms Certificate could purchase a machine gun. During the 1936 British debate, the government could not point to a single instance of a machine gun being misused in Britain,[68] yet the guns were banned anyway. The government (p.415)explained its actions by arguing that automatics were crime guns in the United States and there was no legitimate reason for civilians to possess them. The same rationale is used today in the drive to outlaw semi-automatic firearms in the United States. Since some government officials believe that people do not “need” semi-automatic firearms for hunting, the officials believe that such guns should be prohibited, whether or not the guns are frequently used in crime.

“O, reason not the need!” shouted King Lear after his two traitorous daughters, Regan and Goneril, disarmed him by taking away his armed retinue.[69] Goneril and Regan had asked why the King needed even a single armed retainer, since Goneril’s army and Regan’s army would protect him. The King’s “reason not the need” response was his way of saying the he should not have to justify what he wanted; he should not have to convince his daughters that he had a good reason for wanting to be armed. Unfortunately, for British gun owners, as for King Lear, it was too late. King Lear had already turned the power in the kingdom over to Regan and Goneril; British gun owners had agreed that rifle and pistol ownership should be allowed only when the government, not the citizen, believed that there was a “good reason” for it. Thus, the burden of proof in public debate was reversed. The government was not required to show that there was a need to ban short shotguns or automatic rifles; indeed, the misuse of these guns in Great Britain was so unusual that the British government could never have shown a “need” for the bans. Instead, the government faced a much lower burden. Did the government believe that citizens had a “need” for the guns in question? Obviously some law-abiding citizens thought they did, since the citizens had chosen to purchase such guns. For example, short shotguns are easy to maneuver in a confined setting, and hence are very well-suited for home defense against a burglar. Likewise, machine guns are enjoyed for target shooting and collecting, and are useable for home defense.

The Firearms Act of 1920 had not, of course, banned short shotguns or automatic rifles. The former were ignored by the Act, while the latter were subject only to a lenient licensing system. The Firearms Act had, however, moved the baseline for gun control, and had helped to shift public attitudes. The concept of a “right” to arms was giving way to a privilege, based on whether the government determined that the would-be gun-owner had a “need” according to the government’s standard.

Frederick Schauer’s classic article on slippery slopes distinguishes the pure slippery slope argument[70] from its “close relation” that Schauer calls “the argument from excess breadth.”[71] The latter argument points to the danger of adopting a policy on grounds that are too broad.[72] He points to the (p.416)example of censorship of information about how to build nuclear weapons. If the rationale for censorship is excessively broad–“the information is dangerous to public safety”–then allowing censorship of the nuclear missile information creates a precedent for censorship of many other things.[73] In contrast, if the grounds for a restrictive action are narrow–“this information has a very high risk of directly causing millions of deaths”–then there is much less risk that a desirable action, like the censorship nuclear missile construction information, will lead to undesirable actions, like the censorship of detective novels from which criminals might learn crime techniques.

The 1934 British ban on short shotguns and machine guns was a classic instance of the dangers of an excessively broad rationale. The government decided that nobody outside the government “needed” such items. Thus, the “good reason” requirement of the 1920 Firearms Act set the stage for the 1934 gun ban rationale, that “people outside the government don’t need this,” which in turn would set the stage for further prohibitions.

Another type of argument that Schauer identifies as a close relation to the classic slippery slope argument is “the argument from added authority.” Here, the argument is that “granting additional authority to the decisionmaker inevitably increases the likelihood of a wide range of possible future events, one of which might be the danger case.”[74] The British Firearms Act of 1920 offers a clear example of the dangers against which Schauer’s “added authority” argument warns. Before the Firearms Act, the police had no role in deciding who could own a gun. The Firearms Act instructed them to issue licenses (Firearms Certificates) to all applicants who had a “good reason” for wanting a rifle or pistol. Starting in 1936 the British police began adding a requirement to Firearms Certificates that the guns be stored securely.[75] As shotguns were not licensed, there was no such requirement for them.

While the safe storage requirement might, in the abstract seem reasonable, it was eventually enforced in a highly unreasonable manner by a police bureaucracy often determined to make firearms owners suffer as much harassment as possible.[76] More importantly, Parliament–the voice of the people–did not vote to impose storage requirements on gun-owners. Whatever the merits of the storage rules, they were imposed not by the representatives of the people, but by administrators who were acting without legal authority. Without the licensing system, the police never would have had the opportunity to exercise such illegal power. As the Essay discusses in more (p.417)detail below, once even the most innocuous licensing system is in place, it is more possible (although not necessarily inevitable) that increasingly severe restrictions will be placed on the licensees by administrative fiat. The recognition of this danger is one reason why the First Amendment’s prohibition on prior restraints is so wise. The rule prohibiting prior restraint recognizes that any system for licensing the press creates a risk that system will be administratively abused.

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