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If you want to understand why the best way to protect a given civil liberty from destruction is to resist even the smallest infringements in the short run, then this series of short essays  by American Law Professors Joseph E. Olson and David B. Kopel shall be your "Eureka Moment." 


Learning from the losses of individual liberty in England, you will see how, in the Australian context, our liberties are being attacked on a daily basis by the premeditated administrative gradualism of the Weapons Licensing Branch, moving to attack the 'liberty spirit' independently of legislation.  The ACGQ trusts that this will motivate you to get of your arse and go do something constructive for your liberty, and not just sit around and moan.

 

 

 

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. 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 judgment 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.

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.

Joseph E. Olson (1)
David B. Kopel (2)

 

 

I. Introduction
   
II. Wrenching Freedom From the King--The 1689 English Bill of Rights and the Right to Arms
  The legal background of the British right to bear arms, as it developed from ancient times to the late nineteenth century.
   
III. The Late Nineteenth Century
  The unimpaired British right to arms of the late nineteenth century and the changes in popular culture that began to threaten that right.
   
IV.  The Early Twentieth Century through World War II
        A. The First Step
        B. Dangerous Weapons
        C. Dangerous People
        D. The Firearms Act
        E. Genuine Danger
 
  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.
   
V. The Turbulent 1960s
  Focus  on the turbulent 1960s - 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.
   
VI.  The British Gun Control System in Practice: Administrative Abuse
  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.
   
VII. Momentum for Prohibition
        A. Hungerford
        B. Dunblane
        C. The Next Steps
  Analysis of 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.
   
VIII. The Campaign against Self-Defense
  How armed self-defence has, without statutory change, gone from being a "good reason" for the granting of a gun license to being prohibited.
   
IX. Other Civil Liberties
        A. Freedom of Speech and of the Press
        B. Terrorism
        C. Judicial Review and the Courts
        D. The Role of Gun Controls
  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.
   
X. The Causes of British Decline--and Some Danger Signs for Slippery Slopes
        A. Seven Factors
        B. Balancing instead of Checks and Balances
                1. A Balancing Test?
                2. Checks and Balances
        C. Written Constitutions
        D. Civil Liberties Groups
                1. The Right to Life
                2. United We Stand?
                3. Continued Appeasement?
  Summary and elaboration on some of the conditions that make possible a fall down the slippery slope.
   
XI.  Conclusion: Towards Closer Analysis of Slippery Slopes
   
   

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[1] Professor of Law, Hamline University School of Law, St. Paul, Minnesota. J.D. (Dist.) 1970, Duke University School of Law; L.L.M. 1981, University of Florida Law Center. The authors would like to thank Derek Bernard, David Caplan, Brannon Denning, and Don Kates for helpful comments.

[2] Adjunct Professor of Law, New York University School of Law; J.D. 1985, University of Michigan (M.C.L.); Research Director, Independence Institute, Golden, Colorado, http://www.davekopel.org. Parts of this Essay are revised from material in David B. Kopel, Gun Control in Great Britain: Saving Lives or Constricting Liberty (1992) and David B. Kopel, The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies? (1992) (named Book of the Year by the American Society of Criminology, Division of International Criminology).

PROFESSOR KOPEL HAS A WEBSITE WHICH IS WELL WORTH VISITING.

[3] See, e.g., Henry Geller & Jane H. Yurow, The Reasonable Access Provision (312(a)(7)) of the Communications Act: Once More Down the Slippery Slope, 34 Fed. Com. L.J. 389 (1982) (arguing that the Federal Election Commission review of a television station's refusal to allow a federal candidate "reasonable access" creates a slippery slope for government control of the media's editorial decisions); John Q. La Fond, Washington's Sexually Violent Predator Law: A Deliberate Misuse of the Therapeutic State for Social Control, 15 U. Puget Sound L. Rev. 655 (1992) (arguing that allowing the civil commitment of persons labeled as violent sexual predators creates a slippery slope to the widespread use of lifetime confinement of other people based on only a single crime); Jennifer L. Bradshaw, Comment, The Slippery Slope of Modern Takings Jurisprudence in New Jersey, 7 Seton Hall Const. L.J. 433 (1987) (discussing a decision upholding the Pinelands Protection Act and arguing that the slippery slope endangers Fifth Amendment property rights).

Of course slippery slope arguments are not made only as arguments against a potential infringement of civil liberty. See, e.g.James Q. Wilson, Moral Judgment: Does the Abuse Excuse Threaten Our Legal System (1997) (asserting that expert testimony about battered women's syndrome creates a slippery slope away from personal responsibility).

[4] For example, Andrew McClurg, in his sophisticated critique of the rhetoric for and against gun control, calls "fallacious" the invocation of the "slippery slope" argument against the Brady Bill. McClurg acknowledges that some leading advocates of the Brady Bill had a long-term objective of banning all guns or all handguns. Nevertheless, McClurg considers the slippery slope to be deficient of empirical support; he finds no reason to believe that a law like the Brady Bill could set the stage for eventual prohibition. See Andrew Jay McClurg, The Rhetoric of Gun Control, 42 Am. U.L. Rev. 53, 84-89 (1992). In this Essay, we aim to answer the demand of Professor McClurg (and other gun control advocates) who ask for evidence that moderate gun controls actually could lead to gun confiscation.