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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
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II. |
Wrenching
Freedom From the King--The 1689 English Bill of
Rights and the Right to Arms
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The
legal background of the British right to bear arms,
as it developed from ancient times to the late
nineteenth century. |
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III. |
The Late
Nineteenth Century |
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The
unimpaired British right to arms of the late
nineteenth century and the changes in popular
culture that began to threaten that right. |
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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
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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. |
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V. |
The Turbulent 1960s |
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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. |
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VI. |
The British Gun
Control System in Practice: Administrative Abuse |
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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. |
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VII.
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Momentum for
Prohibition
A. Hungerford
B. Dunblane
C. The Next Steps |
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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. |
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VIII. |
The Campaign
against Self-Defense |
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How
armed self-defence has, without statutory change,
gone from being a "good reason" for the granting of
a gun license to being prohibited. |
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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 |
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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. |
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X.
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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? |
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Summary and elaboration on some of the
conditions that make possible a fall down the slippery
slope. |
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XI. |
Conclusion: Towards
Closer Analysis of Slippery Slopes |
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H
[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.