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PART
VIII
A.V. Dicey's
classic The Law of the Constitution, "the most
celebrated exposition of the rule of law,"[169]
explained that the British common law of self-defense
allowed deadly force to be used only as last resort in
great peril. Dicey used a lawful shooting to illustrate
the rule:
A is struck by
a ruffian, X; A has a revolver in his pocket. He
must not then and there fire upon X, but, to avoid
crime, must first retreat as far as he can. X
pursues; A is driven up against a wall. Then, and
not till then, A, if he has no other means of
repelling attack, may justifiably fire at X.[170]
Moreover, because
citizens were legally bound to prevent the commission of
certain particularly dangerous felonies committed in
their presence by strangers, the killing of a nighttime
burglar without first retreating was lawful, wrote
Dicey.[171]
Dicey illustrated the prevention-of-felony rule by
quoting a judge's advice that the proper action to take
upon discovering a nighttime burglar was to shoot him in
the heart with a double-barreled shotgun.[172]
Today, as a
result of Parliament's 1967 abrogation of the common law
rules on justifiable use of deadly force, should a person
use a firearm for protection against a violent home
intruder, he will be arrested, and a case will be brought
against him by the Crown Prosecution Service.[173]
In one notorious case, an elderly lady tried to frighten off
a gang of thugs by firing a blank from her imitation
firearm. She was arrested and charged with the crime of
putting someone in fear with an imitation firearm.[174]
With gun
ownership for self-protection now completely illegal (unless
one works for the government), Britons have begun switching
to other forms of protection. The government considers this
an intolerable affront. Having, through administrative
interpretation, delegitimized gun ownership for
self-defense, the British government has been able to outlaw
a variety of defensive items. For example, non-lethal
chemical defense sprays, such as Mace, are now illegal in
Britain, as are electric stun devices.[175]
Some Britons
are turning to guard dogs.[176]
Unfortunately dogs, unlike guns and knives, have a will of
their own and sometimes attack innocent people on their own
volition. The number of people injured by dogs has been
rising, and the press is calling for bans on Rottweilers,
Dobermans, and other "devil dogs." Under 1991 legislation,
all pit bulls must be neutered or euthanized.
Other
citizens choose to protect themselves with knives, but
carrying a knife for defensive protection is considered
illegal possession of an offensive weapon. One American
tourist learned about this Orwellian offensive weapon law
the hard way. After she used a pen knife to stab some men
who were attacking her, a British court convicted her of
carrying an offensive weapon. Her intention to use the pen
knife for lawful defensive purposes converted the pen
knife, under British legal newspeak, into an illegal
"offensive weapon."[177]
In 1996, knife-carrying was made presumptively illegal, even
without the "offensive" intent to use the weapon
defensively. A person accused of the crime is allowed "to
prove that he had a good reason or lawful authority for
having" the knife when he did.
Early one
evening in March 1987, Eric Butler, a fifty-six-year-old
executive with B.P. Chemicals, was attacked while riding the
London subway. Two men came after Butler and, as one witness
described, began "strangling him and smashing his head
against the door; his face was red and his eyes were popping
out." No passenger on the subway moved to help him. "My air
supply was being cut off," Butler later testified, "my eyes
became blurred and I feared for my life." Concealed inside
Butler's walking stick was a three-foot blade. Butler
unsheathed the blade; "I lunged at the man wildly with my
swordstick. I resorted to it as my last means of defense."
He stabbed an attacker's stomach. The attackers were charged
with unlawful wounding. Butler was tried and convicted of
carrying an offensive weapon. The court gave him a suspended
sentence, but denounced the "breach of the law which has
become so prevalent in London in recent months that one has
to look for a deterrent."[178]
Butler's self-defense was the only known instance of
use of a swordstick in a "crime."[179]
Home Secretary Douglas Hurd, using powers granted under the
1988 Criminal Justice Act, immediately outlawed possession
of swordsticks.[180]
The Act has also been used to ban blowpipes and other
exotica which, while hardly a crime problem, were determined
by the Home Secretary not be the sorts of things which he
thought any Briton could have a good reason to possess.[181]
No
prosecution for defending oneself is too absurd. Consider a
report from the Evening Standard newspaper in London,
dated October 31, 1996:
A man who uses
a knife as a tool of his trade was jailed today
after police found him carrying three of them in his
car. Dean Payne, 26, is the first person to be
jailed under a new law making the carrying of a
knife punishable by imprisonment. Payne told ...
magistrates that he had to provide his own knife for
his job cutting straps around newspaper bundles at
the distribution plant where he works .... Police
found the three knives--a lock knife, a small
printer's knife, and a Stanley knife--in a routine
search of his car.... The court agreed he had no
intention of using the knives for "offensive"
purposes but jailed him for two weeks anyway.
....
[The magistrate said] "I have to view
your conduct in light of the great public fear of people
going around with knives...I consider the only proper
punishment is one depriving you of your liberty."
At the dawn of the
twentieth century, Great Britain was the great exemplar
of liberty to continental Europe, but the sun has set on
Britain's tradition of civil liberty. The police search
people's cars routinely. Public hysteria against weapons
is so extreme that working men are sentenced to jail for
possessing the simple tools of their trade. The
prosecutions of a newspaper delivery men who carries
some knives, or a business executive who saved his own
life, would likely have horrified the British gun
control advocates of the early twentieth century. There
is no evidence that most of these gun control advocates,
who only wanted to keep firearms out of the hands of
anti-government revolutionaries, ever wanted to make it
illegal for tradesmen to carry tools, or for women to
stab violent predators. The gun control advocates of
1905-1920 could distinguish a Communist with a rifle
from a tourist with a pen-knife. But while the early
weapons control advocates made such a distinction, they
could not bind their successors to do so as well. Nor
could the early weapons controllers understand the
social changes that they would unleash when they gave
the right to arms the first push down the slippery
slope.
Similarly,
in the United States, few Congressmen who voted for the
first federal controls on how Americans could consume
medicine[182]
could have foreseen the "War on Drugs" that they were
unleashing. Who could have predicted that a law requiring a
prescription for morphine would pave the way for masked
soldiers to break into a person's home because an anonymous
tipster claimed that there were hemp plants, which were
entirely legal in 1914, in the home? Who could have
predicted that the Harrison Narcotics Act would pave the way
for a Food and Drug Administration that would deny
terminally-ill patients the medicine of their choice because
the FDA had not satisfied itself that the medicine,
available throughout Western Europe, was "safe and
effective?" Who could have predicted that doctors would not
be able to prescribe the most effective pain-killers,
opiates, to the terminally ill who were suffering extreme
pain? Who could have predicted that legislative action on
opiate prescriptions would pave the way for a federal
administrative agency to claim the right to outlaw speech
about tobacco? Predictions of such events, had they been
raised in 1914 on the floor of Congress, would have seemed
absurd.
However, as
too many Britons and citizens of the United States have
learned the hard way in this century, extreme consequences
may flow from apparently small steps. The Firearms
Act of 1920 was just a licensing law; the Harrison Narcotics
Act was just a prescription system; and the serpent only
asked Eve to eat an apple.[183]
- TURN TO PART
IX -
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