The Campaign against Self-Defense

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]








[169] Richard A. Epstein, Symposium: The Legacy of Goldberg V. Kelly: a Twenty Year Perspective: No New Property, 56 Brooklyn L. Rev. 747, 765 n.33 (1990).

[170] A.V. Dicey, The Law of the Constitution 345 (8th ed. 1915). The more liberal American rule, which does not generally impose a duty to retreat, is discussed in Richard Maxwell Brown, No Duty to Retreat: Violence and Values in American History and Society (1991). See also Model Penal Code 3.04(2)(b)(ii)(A).

[171] Dicey, supra note 170 at 347.

[172] See id. at 347-348, n.45.

[173] See Cadmus, Arms for Self Preservation and Defense: Part II, 35 Guns Rev. 750 (1995).

[174] See id.

[175] See, e.g., Firearms Act (1968), 5(b) (outlawing "any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing").

[176] See International Briefs, Animal's Agenda, Dec. 1989, at 29.

[177] See Criminal Justice Act 1988, ch. 33, 139 (Eng.); Gilbert A. Lewthwaite, Britain's Conservative Party Hopes to Outlaw Knife-carrying in Anti-crime Drive, The Sun, Oct. 8, 1987, at 25; Gail Tabor, British Justice 'a Travesty'; Arizonan Won't Visit Again, Arizona Rep., Nov. 10, 1991, at B1, B6.

[178] See Francis Cowper, London's Parallel to the Goetz Case, N.Y.L.J., Oct. 20, 1987, at 2.

[179] See Cadmus, supra note 85, at 422.

[180] See Criminal Justice Act 1988 (Offensive Weapons) Order 1988 (barring sale or transfer of swordsticks and martial arts weapons).

[181] See Cadmus, supra note 85, at 422.

[182] See The Harrison Narcotics Act, 38 Stat. 785, 786 (1914).

[183] See Genesis 3:1-6.