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PART VI


The British Gun Control System in Practice: Administrative Abuse

As is typical with many gun control laws, the shotgun certificate system was enforced in a moderate and reasonable way by the government in the law's first years. Similarly, the rifle and handgun licensing system, introduced in 1920, had been enforced in a generally moderate way in the 1920s and 1930s. However, as the public grew accustomed to the idea of rifles and handguns being licensed, it became possible to begin to enforce the licensing requirements with greater and greater stringency.

Severe enforcement of the rifle and handgun licensing system would not have worked in 1922. Too many gun owners would have been outraged by the rapid move from a free society to one of repressive controls. By initially enforcing the 1920 legislation with moderation, and then with gradually increasing severity, the British government acclimated British gun owners to higher and higher levels of control. The British government used the same principle as do people who are cooking frogs. If a cook throws a frog in a pot of boiling water, he will jump out, but if the cook puts a frog in a pot of moderately warm water, and gradually raises the temperature, the frog will slowly lose consciousness, and be unable to escape by the time the water gets to a boil.

The frog-cooking principle helps explain why America's Handgun Control, Inc. (HCI), and the other anti-gun lobbies are so desperate to pass any kind of gun control, even controls that most observers agree will accomplish very little. By lobbying for the enactment of, for example, the Brady Bill, HCI established the principle of a national gun licensing system. Once a lenient national handgun licensing system was established in 1993, the foundation was laid so that the licensing system can gradually be tightened. The push has already begun, as President Clinton echoes HCI's demand that Congress close the "loophole" in the Brady Act that allows private individuals, those persons not in the gun business, to sell firearms to each other without going through the federal Brady background check.

The British "firearms certificate" system of 1920 had required that a person who wished to possess a rifle or handgun prove he had "a good reason."[102] In the early years of the system, self-defense had been considered "a good reason,"[103] but, by the 1960s, it was a well-established police practice that only "sporting" purposes, and not self-defense could justify issuance of a rifle or handgun license. Parliament had never voted to outlaw defensive gun ownership, but self-defense fell victim to what Schauer calls "the consequences of linguistic imprecision."[104] When a legal rule is expressed in imprecise terms there is a heightened risk that subsequent interpreters of the rule may apply the rule differently than the formulators of the rule would have.[105] Thus, while self-defense was a "good reason" in 1921, in later decades the government had decided that a "good reason" did not include self-defense. In practice, being a certified member of a government-approved target shooting club became the only way a person could legally purchase a pistol.[106]

Under regulations implementing Britain's 1997 Firearms (Amendment) Act, gun club members must now register every time they use a range, and must record which particular gun they use. If the gun-owner does not use some of his legally-registered guns at the range often enough, his permission to own those guns will be revoked.[107]

Having control over rifle and handgun owners through a licensing system, the police began inventing their own conditions to put on licenses. The police practice was not entirely legal, but it was generally accepted by a compliant public. Similar practices occur in United States jurisdictions such as New York city, where licensing authorities sometimes add their own, extra-legal, restrictions to handgun licenses. In the 1980s, then-New York Police Commissioner Benjamin Ward told his firearms licensing staff to refuse to issue any licenses for the Glock pistol. The prohibition ended when the media found out that Commissioner Ward himself carried a Glock pistol.

When the safe storage requirement was introduced for rifles and handguns in the 1930s, it was enforced in a reasonable manner by the police. Leaving one's handgun on the front porch was not acceptable; keeping it on a dark closet shelf was perfectly fine. Similarly, in the few United States jurisdictions that have imposed storage requirements in recent years, the law is usually enforced in a reasonable manner--at least for now.

From the 1930s through the 1960s, the security requirement simply meant that Firearms Certificate holders were told of their responsibility for secure storage. Starting in the early 1970s, the police began performing home inspections as part of the Firearms Certificate issuance in order to assess the applicant's security.[108] After the 1996 Dunblane shootings, some police forces began performing spot checks on persons who already held Firearms Certificates. Apparently the home searches were done to make sure that the firearms really were locked up.

Parliament never granted the police home inspection authority, nor did Parliament enact legislation saying that a hardened safe is the only acceptable storage method. However, that is what the police in many jurisdictions require anyway. In fact, many gun owners who bought safes that the police said were acceptable are now being forced to buy new safes because the local police have arbitrarily changed the standards. In many districts, an "acceptable safe" is now one that can withstand a half-hour attack by a burglar who arrives with a full set of safe-opening tools.

Sometimes the police require the purchase of two safes: the first one for the gun and the second one for separate storage of ammunition. A Briton buying a low-powered, 5 rimfire rifle may have to spend 100 on a safe. Likewise, a person with five handguns (before the 1997 ban) might have been ordered to add a 1000 electronic security system.[109] Added to the cost of the illegal requirement for hardened safes is the escalating cost of Firearms or Shotgun Certificates. Home inspections are expensive for the police, and thus the cost of Firearms Certificates or Shotgun Certificates has been raised again and again, far above the rate of inflation, in order to cover the costs of the intrusive inspections, as well as the cost of many gross inefficiencies in police processing of applications.[110] The net effect of the heavy security costs is to reduce legal gun ownership by the less wealthy classes, as in the days of Henry VIII, Charles I, who was later beheaded during the English Civil War, and James II, who was driven out of the country by the Glorious Revolution.

The increasing severity of the application of the gun licensing system is no accident. A 1970 internal government document, the McKay Report was turned into a 1973 British government Green Paper, which proposed a host of new controls.[111] The British shooting lobbies, however, mobilized and the Green Paper was withdrawn.[112] Law professor Richard Harding, Australia's then-leading academic advocate of gun control, criticized the Green Paper as "statistically defective ... [and] ... scientifically quite useless."[113] Harding was looking at whether the proposed laws would reduce gun crime, gun suicide, or other gun misuse. The proponents of the Green Paper, on the other hand, did not care whether more gun control would reduce gun misuse. The earlier, secret draft of the Green Paper (the McKay Report) had stated that "a reduction in the number of firearms in private hands is a desirable end in itself."[114]

The Green Paper was withdrawn thanks to strong pressure from British gun-owners--and never turned into a formal proposal for new law (a White Paper). However, the Green Paper still set the government's agenda for the next two decades. Some parts were saved for introduction when political circumstances were right, for example after a notorious gun crime. Other parts soon began to be enforced immediately, by police fiat.

One Green Paper item would have required prospective rifle hunters to receive written invitation from the owner of the land where they would shoot, and then take the letter to the police. The police would investigate the safety of the hunt and other factors before granting permission. Several Chief Constables adopted this proposal and others from the Green Paper as "force policy" and enforced them as if they were law.[115] A certificate for rifle possession now often includes "territorial conditions" specifying exactly where the person may hunt.[116] While it is not legally necessary for shooters to have written permission to hunt on a particular piece of land, police have been stopping shooters, demanding written proof of permission, and threatening to confiscate guns from persons who cannot produce the proof.[117]

Police abuses appear in every aspect of gun licensing. As Police Review magazine noted: "There is an easily identifiable police attitude towards the possession of guns by members of the public. Every possible difficulty should be put in their way." The stated police position is "to reduce to an absolute minimum the number of firearms, including shotguns, in hands of members of the public."[118] Thus, without legal authority, the police have begun to phase out firearms collections by refusing new applications.[119] Police departments have incorrectly told hunters that certain legal restrictions on hunting with semi-automatics also apply to hunting with pump-action guns.[120] The police have also, again without legal authority, required applicants for shotguns capable of holding more than two shells to prove a special need for the gun.[121] Furthermore, if a policeman has a personal interest in the shooting sports, that interest may disqualify him from being assigned to any role in the police gun licensing program. Policemen who know virtually nothing about guns, but who can be counted on to have a hostile attitude towards gun owners, are often picked for the gun licensing jobs.

Parliament has no interest in investigating police abuses of the gun licensing laws. One reason is that many of the abuses are instigated by the Home Office, which is controlled by the leaders of the party in power in Parliament. The courts are submissive to police "discretion." As a formal matter, applicants may appeal police denials of permit application, but the courts are generally deferential to police decisions. Hearsay evidence is admissible against the applicant. An appellant does not have a right to present evidence on his own behalf, nor does an applicant who has been denied have a right to find out the basis for the denial until the trial begins.[122] The Labour Party, now in power, argues that rejected applicants should never be told the basis of the denial.

The only practical way that British gun owners could have avoided abuse of the licensing laws would have been to resist the first proposed laws that allowed the police to determine who could get a gun license. However the gun owners never would have dreamed of resisting, because such a law seemed so "reasonable." Having meekly accepted the wishes of the police and the ruling party for "reasonable" controls, by the early 1970's British rifle and handgun owners found themselves in a boiling pot of severe controls from which escape was no longer possible. British shotgun owners, ignoring the fate of their rifle and handgun-owning brethren, jumped into their own pot of then-lukewarm water when they accepted the 1966 shotgun licensing proposals.

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[102] See Home Office, Firearms, What You Need to Know About the Law 1, 2 (1984).

British felons sentenced to a term of three or more years are permanently barred from owning firearms (rifles and pistols). People sentenced to terms of three months to three years face a five-year prohibition. See Tony Jackson, Legitimate Pursuit: The Case for the Sporting Gun 40 (1988) (published in association with the British Association for Shooting and Conservation).

[103] See Greenly v. Lawrence, 1 All E.R. 241 (K. B. 1949) (upholding lower court's reversal of police denial of application to renew firearms certificate for revolver possessed for self-defense). See also Fiddick, supra note 67, at 3Sandys-Winch, supra note 98, at 30.

[104] Schauer, supra note 44, at 370.

[105] See id. at 373.

[106] See Francis Cowper, Massacre in a Market Town, N.Y. L. J., Oct. 5, 1987, at 2.

[107] See Home Office, Firearms: Approval of Rifle and Muzzle-loading Pistol Clubs (1998) <http://www.homeoffice.gov.uk/ppd.oppu/club981.htm>.

[108] See Cadmus, Abuse of Authority, 36 Guns Rev. 25, 26 (1996).

[109] See Lorton, supra note 43, at 143. See also Greenwood, supra note 75, at 40.

[110] See Fees, 31 Guns Rev. 9 (1991). According to a study by the accounting firm Cooper and Lybrand Deloitte, a reasonably efficient firearm certificate licensing system should cost no more than 35 to administer. See id.

[111] The Control of Firearms: A Consultative Document, Green Paper, Command 5297 (London: Her Majesty's Stationery Office, May 1973).

[112] In 1973, members of Parliament sent 1,174 suggestions for improvement in the proposed bill to the Home Office, and 4, 573 members of the public wrote to the Home Office to oppose all or part of the bill.

[113] Richard Harding, Firearms Use in Crime, 18 Crim. L. Rev. 772 (1979).

[114] Quoted in Colin Greenwood, The Sun Sets on British Gun Owners, American Rifleman, May 1989, at 26.

[115] See Green Paper, supra note 111, at 25.

[116] See Cadmus, Territorial Conditions, 19 Guns Rev. 38 (1979).

[117] See George Wallace, Shotguns and the Law, Shooting Magazine, Oct. 1989, at 28. See also Mid Glamorgan, Police Policies, in Letters to the Editor, 31 Guns Rev. 56 (1991).

[118] Quoted in Colin Greenwood Reviews Police Policy, Shooting Times & Country Mag., Dec. 27, 1979; Cadmus, A Question of Numbers, 18 Gun Rev. 665 (1978) (police statement in letters to gun owners who were attempting to renew certificates).

[119] The proposal (never enacted into law) to ban new gun collections or additions to old collections was made in the Green Paper, supra note 112, at 17. For a prospective collector's difficulty with the police, see Hutchison v. Chief Constable of Grampian, 1977 S.L.T. 98 (Sh. Ct. 1977).

[120] See Unmodified Pumps and Autos, 29 Guns Rev. 825 (1989).

[121] See Cadmus, Magazine Mischief, 30 Guns Rev. 645 (1990).

[122] See Richard Law, Shooters Rights, Guns & Shooting, Oct. 1993, at 54.