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PART 10


 

The Causes of British Decline--and Some Danger Signs for Slippery Slopes

What makes a civil liberty particularly vulnerable to a slippery slope? This section discusses some particular factors that have made gun rights, like most of the rest of the freedoms guaranteed in the American Bill of Rights, particularly vulnerable in Great Britain: its structure of government, and its civil liberties organizations. Before addressing those topics, this Essay will consolidate the factors that have been touched upon in earlier sections.

A. Seven Key Factors

The first factor that undermined the British right to arms was a technological change when revolvers came to be seen by some persons as much more dangerous than previous weapons.[250] This same phenomenon can be seen in the treatment of other technological advances, such as the automobile, which from the 1920s onward, has often been treated by the United States Supreme Court as a "Constitution-free zone", where searches and seizures in contravention of normal Fourth Amendment standards may take place.[251]

The second factor that undermined the British right to arms was the role of the media, with its lurid and exaggerated accounts of gun crime in the 1880s, or its vicious denunciations of recreational shooters in the 1990s. This suggests that slippery slopes may be less dangerous when the right in question is supported by the press, as free speech and abortion rights are in the modern United States. Conversely, slippery slopes may be more dangerous when the press is indifferent, as in the case of federalism and states' rights, or actively hostile, as in the case of gun rights.

The third undermining factor was the development of government mistrust of the people, as in the 1920 fears of Bolshevism. We may hear echoes of this today in the United States government's fears the militia movement and its allies. Certainly, however, the dangers posed by the modern militia movement are much smaller than the dangers posed by Soviet communism and its United States agents in the 1950s or by violent anarcho-syndicalism in the early twentieth century. Consequently, the related suppressions of civil liberties have been smaller.[252]

The major "subversive" group in the United States today is not anarcho-syndicalists, militia members, or Fenians, but drug users. They are "traitors in the War on Drugs" according to much public rhetoric, and according to the United States' moralist-in-chief William Bennett, public beheadings of drug users would be a good idea. Over the last two decades, no force has been more important in eroding the civil liberties of all Americans, drug users and abstainers alike, than the War on Drugs.[253]

The shifting of the burden of proof, both at law and in popular discussion, was the fourth factor degrading the British right to arms. Rather than the government having to prove that a particular gun-owner or a particular type of gun was dangerous, the gun-owner began to have to prove his "good reason," and the government began deciding to outlaw weapons that the government did not think anyone outside the government had a good reason to own.

The "added authority" problem described by Schauer was of great significance. Once the people agreed that Parliament had the authority to decide whether to ban any type of gun, or to decide how people could acquire guns, a wide range of restrictions became intellectually conceivable. Even more significantly, once the police were given authority over licensing, they were able to use that authority to impose many additional controls, and to reduce the number of licensed shooters. In addition, Parliament's allowing the Home Office to ban weapons by administrative edict has resulted in certain weapons such as swordsticks being banned for no good reason.

This suggests that often the most important aspect of a particular restriction on civil liberty, as least in terms of slippery slope dangers, is not the content of the restriction, but who will decide its contours. For example, the 1994 Congressional ban on "assault weapons" contained a complete definition of what an "assault weapon" is, and gave the Bureau of Alcohol, Tobacco, and Firearms no discretionary authority to add guns to the banned list. Thus, the potential future expansion of the law was constrained. Conversely, the most important aspect of Canada's latest gun control law, Bill C-68, is not that it bans some handguns, but that it gave the Prime Minister and his appointees the authority to ban any other weapon they want, without asking Parliamentary approval. Thus, how much "added authority" one control creates for future controls is a fifth important factor in estimating slippery slope dangers.

Additionally, how many people are there who care to resist infringement of a right? Few politicians seriously propose a total gun ban in the United States because there are seventy million gun-owning households--about half the population. But only about four percent of the British population legally owns guns--a much smaller interest group. If, over the course of generations, the percentage of a population that is interested in a right can be gradually reduced, stricter controls become more politically feasible, and the stricter controls can further reduce the long-term number of people who exercise their rights.

This suggests the long-term importance of young people exercising their rights. If high school newspapers have large staffs that fearlessly report the truth, the future of the First Amendment is better protected. If, conversely, laws prevent teenagers from target shooting or hunting, the future of the Second Amendment is endangered.

A final potential reason that a polity might move further down a slippery slope is that the polity sees the previous step as being useful. For instance, if a City Council imposed a 10 p.m. curfew for sixteen-year-olds, and night-time crime perpetrated by sixteen-year-olds fell significantly and immediately, the city council would likely consider extending the curfew to seventeen-year-olds. In the United States, there is no shortage of studies claiming that laws tightening gun controls (like the Brady Act) or laws relaxing gun controls, like laws allowing trained citizens to carry a concealed handgun for protection, reduce crime. Scholars such as John Lott, Gary Kleck, Arthur Kellerman, Garen Wintemute, and others, carry on a steady debate about the empirical benefits of various firearms policies. Anyone who follows the firearms debate seriously will soon encounter one of these social scientists on a television interview. The gun control debate in Canada likewise includes scholars such as Gary Mauser and Thomas Gabor, who make various empirical research claims for or against particular gun policies.

From an American point of view, one of the truly odd characteristics of the British gun debate is the apparent irrelevance of social science. To the extent that any research is cited, the research is from North America, or involves transnational comparisons. Nobody cites British quantitative research because none exists other than raw crime statistics collected by the Home Office.

The raw statistics do make some facts clear: when Britain had no gun control (early in the twentieth century) or moderately-administered gun control (in the middle of the century), Britain had virtually no gun crime. Today, Britain literally has substantially more gun crime, as well as more violent crime in general. From 1776 until very recently, the United States has suffered a much higher violent crime rate than Britain, regardless of whether British gun laws were liberal or strict. In recent years, however, the once-wide gap in violent crime has disappeared. This gap was closed by a moderate drop in American crime rates, coupled with a sharp rise in the British rates. One does not hear British gun control advocates touting statistics about how crime rates fell after previous gun laws were enacted.[254] Rather, the advocacy is based on the "inherent danger of guns," and on the "horror" of Dunblane and Hungerford. Even though Britain shows that demonstrated empirical success is not essential for movement down a slippery slope, success does help. The drop in New York City's crime rate following Mayor Rudolph Guliani's aggressive policing policies, which were roundly condemned by the New York Civil Liberties Union, has encouraged other cities to adopt similar policies. This, in turn, made Guliani's brand of authoritarian conservatism an important element in the national Republican party's thinking about crime policy.

There are certainly other factors that may affect the potential danger of a given slippery slope. The seven factors that this Essay has discussed, however, could be usefully analyzed in many different situations to examine the relative risks of a slippery slope argument. In addition to these seven factors there are several other factors that made the right to arms so vulnerable in Britain--and which also have implications for civil liberties in the United States. It is to these additional factors that this Essay now turns.

B. Balancing instead of Checks and Balances

1. A Balancing Test?

When the government cuts back on civil liberties, it couches its actions in the reasonable-sounding language of "balancing." For example, under the Public Order Act of 1986, organizers of marches must give seven days notice to the police, and it is illegal for a person to participate in a march that has not complied with the Public Order Act. The Act was initiated by Home Secretary Douglas Hurd, author of the 1988 gun controls. The Home Office claimed that it was balancing "the rights of those who wish to demonstrate and the interests of the wider community."[255] The Police Act, authorizing incommunicado detention, was promoted as a "balance" between police powers and individual rights.[256] Likewise, Hurd justified the 1988 gun controls as "a better balance between the interests of the genuine sportsman and the safety of the public as a whole."[257] The gun lobby's concession that guns are only for sports, and not for defense, ensures that the balance is always tipped against the gun owner. If guns make no positive contribution to personal or public safety, the public's concerns about safety must always override the gun owners' interest in sports.

The rhetoric of balancing is dangerous because it tends to give too much weight to the short-term concerns of public safety. Thus, the American right that has been most subject to balancing, the Fourth Amendment, has suffered badly in the United States Supreme Court.[258] More fundamentally, the "balancing" that legislatures or courts sometimes do is not their job, because the balancing has already been done. Whether in the 1689 Bill of Rights, which was to apply "for all time," or in the 1789-91 United States Constitution, a balance was struck. Because of this balance, governments were prohibited from doing certain things since, in the long run, public safety and liberty were both enhanced by preventing short-term considerations from controlling. Thus, when the Blaisdell Court "balanced" its way around the Constitution's absolute ban on the impairment of contracts, and upheld Minnesota's debtor relief law,[259] the Court did not merely err--the Court usurped power and attempted to re-open the question that the Contracts Clause had decided with finality.

When rights are protected with bright lines, as the First Amendment usually is, then rights are particularly secure against slippery slopes. When rights are subjected to "balancing" (a/k/a "reasonableness") tests by courts, as the Fifth Amendment Takings Clause often is, then rights are particularly vulnerable. And when a society has lost the theory of constitutional absolutes as Britain has, and replaced this with "balancing," then every right is in danger.

2. Checks and Balances

Although the British government praises "balancing," the lack of checks and balances within the government itself endangers liberties. Any United States law, including a restriction on liberty, must be approved by the legislative and the executive, enforced by the executive, and upheld by the courts. The independence of the legislature, executive, and judicial branches in the United States is a deliberate formula for government gridlock, for it ensures that government cannot speak with a single voice.

In contrast, the British Parliament is supreme. An act of Parliament that is clearly expressed cannot be questioned on constitutional grounds by any British court.[260] A majority in Parliament means control of the entire government. The party leader--the Prime Minister--and the leader's close advisors have a much easier time turning their unchecked will into law than do their counterparts in the United States or Canada.[261] The British system does not mean legislative supremacy, but rather executive supremacy, since the leader of the dominant party in Parliament faces no effective opposition or check.[262] There is, 300 years after the Glorious Revolution, an unexpected new "monarch"--the Prime Minister. As a practical matter, the Parliament today acts as less of a check on the supreme executive's power than Parliament did in 1613, when King James I asserted the divine right of kings. The modern "servile but supreme parliament" is no longer a restraint on executive power, but instead an instrument of that power.[263]

In the seventeenth century prelude to the English Civil War, as Parliament took control of the militia away from the King, Parliament exalted itself as the "epitome" of the nation, insisting "there can be nothing against the arbitrary Supremacy of Parliaments." Indeed, it was commonly said that "Parliament can do no wrong."[264] The fiction of a King, who embodied all national sovereignty and could do no wrong, was replaced with the fiction of an equally absolute Parliament.

Unfortunately, modern Britain's politics derives more from the seventeenth century absolutism than from the eighteenth century common law described by Blackstone, in which the "right of the individual" to arms was meant for "the natural rights of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression." In Blackstone's time, and for many decades thereafter, Britons believed that they had the same right that citizens of the United States claimed in the Declaration of Independence--to "alter or abolish" their government by force, if the government became too oppressive.

What a slippery slope Britain has descended in just a century! When the century dawned, Blackstone's right to resist oppression was the law. Today in Britain, only the Libertarian Alliance dares to argue about a right of resistance. Regarding the issue of the government's absolute sovereignty, the British government holds a tighter ideological grip over its subjects today than most British governments since 1689 ever dreamed of achieving.[265]

Virtually no one in the debates surrounding the creation of the United States constitutional government, or in the two centuries of that government's existence, has asserted that any branch of government deserved absolute power. A person insisting that "Congress can do no wrong," would be making a joke. The "checks and balances" of the United States Constitution reflect the explicit choice of the its framers that government was itself something that needed to be controlled--by the internal checks of three equal branches of government.[266] The United States' system of checks and balances constrains the central government by dividing its power. Thus, slippery slope problems in the United States take longer to develop than those in Great Britain. Thus, almost any slippery slope argument made in Great Britain is inherently more plausible than the same argument made in the United States, although the ultimate harm may be the same.[267]

Because the United States Constitution's separation of powers is a very powerful protection against slippery slope degradation of its citizens' individual rights, United States citizens must be particularly vigilant that the separation of powers itself does not fall victim to a slippery slope. The British, after all, once separated their powers--between a House of Commons, a House of Lords, and a Monarch. But over time, the first has arrogated to itself all but the tiniest remnant of the national government's political power.[268] Indeed, there is now discussion of the House of Commons, by its own fiat, abolishing the House of Lords or the Monarchy.

Current conditions in the United States are, however, no cause for complacency. As Bruce Ackerman details in We the People: Transformations, the central government now exercises vast powers which were never granted by the text of the 1789 Constitution, and the separation of powers between the central government and the states has been severely damaged, far beyond the change in federal/state relations that the Fourteenth Amendment wrought.[269] Also severely damaged is the separation of powers between the three branches of the central government. David Schoenbrod's superb Power without Responsibility: How Congress Abuses the People Through Delegation details how Congress, the Executive, and the Judiciary have collaborated in a vast transfer of Congress's Article I lawmaking authority to the Executive branch.[270] Additionally, the slippery slope of executive branch lawmaking continues to worsen. In earlier decades the Executive Branch made law almost exclusively through formal regulations or through quasi-judicial adjudications--a usurpation of the legislature's law making power and the judiciary's Article III powers. Currently, however, executive law making often tends to slip even the restraints of the Administrative Procedure Act, as the Executive branch invents "law" through the creation of "guidelines" implementing federal statutes.[271] The "guidelines" are de facto law for the vast number of citizens and businesses attempting to comply with what the legions of federal enforcement officers demand. Although the guidelines are not formally enforceable in court, only a small minority of the victims of illegal executive law-making are able to spend the money necessary to go to federal court and win a ruling three years later that guidelines are not law.

C. Written Constitutions

Civil liberties in Britain lack the shield of a written constitution enforced by judicial review. Civil liberties endure only so long as Parliamentary majorities respect unwritten traditions or the statutes of previous Parliaments, such as the Bill of Rights. A civil liberties leader in the House of Lords has argued for the importance of a written constitution:

Human rights are built into American life by the Constitution, and protected by a court, the Supreme Court of the USA. Not so in my country. "Human rights" is not a term of art in English law. Civil liberties--yes, our courts understand them and protect them. We rely on the common law: but the common law has no constitutional protection against the inroads of the legislature. Judges are, in terms of power, subordinate to parliament. Mr. Justice Brennan's approach to human rights is the pearl of great price that we have lost in the rough seas that prevail outside the world of a written constitution.[272]

Ironically, while the British government believes that it functions just fine without a written constitution, the British government only grants approval to shooting clubs if they are "a genuine target shooting club with a written constitution."[273] What topsy-turvy priorities for a body politic: Safety dictates that the law must demand "a written constitution" from each approved shooting club; but there is no "written constitution" demanded for the British government--which is vastly more important, and more dangerous than all the gun clubs put together.

The differing constitutional policies of the United States and Britain, and the differing fate of the right to bear arms in the two nations, can be traced in part to the revolutionary times that gave birth to the formal recognition of the right to bear arms in each nation. The Second Amendment was written just a few years after an armed United States fought a long and violent revolution that overthrew what many United States citizens considered an imperial dictatorship. The closest the British people ever came to successfully overthrowing a government was watching passively when William of Orange frightened James I into fleeing the country, in the Glorious Revolution of 1688-1689. And the resultant statutory "Bill of Rights" was as close as Britain ever got to a strong written Constitution protecting a right to bear arms.[274] The resultant Bill of Rights enacted by Parliament in 1689 has turned out to be of little value in protecting even a small core of a "right" to own guns in Britain. In contrast, the appeal that a United States citizen makes to the Bill of Rights is an appeal to the highest law, and a claim of entitlement. Gun owners in the United States, and a very large majority of the United States public, believe that they have a right to bear arms. In fact, legal scholarship now overwhelmingly endorses the "Standard Model" of Second Amendment interpretation, holding that the Bill of Rights provides a meaningful, individual right to keep and bear arms, which does restrict government.[275] Akhil Amar observes how the United States' Bill of Rights grew in importance over time. It was like the Decalogue, with ten essential fundamental rules.[276] The United States' Bill of Rights had an important advantage over its British ancestor: the United States Bill was part of a larger document, and that larger document--the Constitution--was universally acknowledged to be superior to the federal government. The United States' federal government was under the Constitution, everyone agreed. And therefore the United States' federal government must be under the Bill of Rights, since the Bill of Rights is part of the Constitution. But the British Bill of Rights hangs by itself. It is not attached to the written constitution for the British government.

The lesson of slippery slopes is that the strength with which a right is expressed in fundamental law can make a great difference. The Second Amendment has undeniably made a huge difference in the progress of the gun debate in the United States. Imagine the debate if there were not millions of political activists, and a huge majority of the public, who believed that ownership of a guns was a constitutional right.[277]

Contrast the fate of the right to arms in the United States with the fate of the right to medical choice. Suppose that Madison had included a right to medical liberty in the Bill of Rights, and the nation had ratified it. With an explicit constitutional right to medical choice, would United States citizens have ever allowed their government to get to the point that it denies the best painkillers (such as heroin) to terminally ill people in incurable pain? To deny various treatments to people who conventional treatments are failing to save from cancer? To use the interstate commerce power to make felons out of people undergoing chemotherapy who control their nausea by smoking a homegrown hemp plant--a plant which George Washington grew on his farm?

Thus, aspects of freedom that are traditional, but which are not enumerated in the Constitution, may be especially vulnerable to slippery slopes. For example, the right to privacy, the right to self-defense, the right to move around (by foot or by auto); and the right to medical freedom all deserve protection against further encroachment because small encroachments may snowball. Some readers will object that something on this paragraph's list of unenumerated rights are not really rights at all, and deserve no protection. This objection confirms that the rights in question are at risk, and therefore need special guardianship from [errata: by] persons who believe in the right.

D. Civil Liberties Groups

The United States' National Rifle Association is sui generis; it is the only gun rights lobby in the world to be one of the very most influential lobbies affecting its government. The American Civil Liberties Union is not as legislatively powerful as the NRA, but it too is vastly more influential on government than are the ACLU's foreign cousins.

The British lobbies accuse the United States of going too far. Commented the general secretary of the National Council for Civil Liberties of England and Wales, "[u]nlike the American Civil Liberties Union, we feel that freedom of speech is not an absolute." Thus, Britain's NCCL decided not to oppose legislation prohibiting the public expression of racist views.[278] The National Council on Civil Liberties favors suppression of racist speech, and has even refused to represent racist clients on other issues.[279] Similarly, British gun organizations criticize the laxity of United States gun laws.[280] When the Home Office imposed major new restrictions on gun clubs, the Chief Executive of Britain's National Rifle Association affirmed his assent by simply noting that "the Government saw a need."[281] In the United States, the notion that a civil liberties group or a national shooting organization would support a reduction in freedom simply because "the government saw a need," is almost too absurd to contemplate.

1. The Right to Life

The British gun-owners must accept much of the blame for their current predicament because of their concession that guns were only appropriate for sports. When the Home Office in the 1980s began complaining that some people were obtaining guns for protection, British Shooting Sports Council joined the complaint: "This, if it is a fact, is an alarming trend and reflects sadly on our society."[282] One hunting lobby official condemned "the growing number of weapons being held in urban areas" for reasons having nothing to do with sport. The major hunting lobby, the British Association for Shooting and Conservation, defended the right to arms, but only, in its words, "the freedom to possess and use sporting arms."[283]

The BASC's stance may appear to be a "reasonable" position, which demonstrates that gun-owners are not bloodthirsty nuts wanting to shoot people. Rather, shooters are harmless sportsmen, and licensed guns belong in the same category as cricket bats or golf clubs. In practice, however, the concession that guns are only for sports undermines defense of the right to bear arms. If guns are not to be owned for defense, then guns make no positive contribution to public safety. If the sovereignty of the central government is absolute, then the people's ownership of arms makes no positive contribution to a sound body politic.

British libertarian Sean Gabb points out that the British gun lobbies' support of gun licensing undermines the lobbies' arguments that licensed gun owners are not part of the gun crime problem. As Gabb writes: "[b]ut if control is needed, and if it can be made to work, the fact that it did not prevent Thomas Hamilton from shooting those poor children is surely an argument at least for tightening it in future."[284] Gabb further argues that British gun owners have been losing battle after battle and have therefore shriveled in numbers because "you all failed to put the real case for guns--that their possession for defence is a moral right and duty, as well as a positive social good."[285] Instead, the many eloquent MPs who spoke against handgun confiscation pointed to all the admirable sporting uses of sporting guns: by handicapped people in the paralympics; by British athletes in the Olympics and in the Commonwealth Games; and by ordinary Britons on a Saturday afternoon of innocent sport.

The anti-ban MPs spoke well, but the prohibitionists' argument, while simple, was intellectually stronger. There are substitutes for sports; displaced handgun shooters can still use rifles or shotguns or airguns. But there is no substitute for a child's life. Even if virtually all handguns are never misused, at the very least, once in a while a handgun will be. If complete prohibition saves one life, it's worth it.[286] The score in this debate, for potential lives saved was Gun Ownership: zero; Gun Prohibition: perhaps one or more. If this is the only calculus, then prohibition is a clear winner.

To Labour's winning argument, Prince Philip made another of his "insensitive" comments: that other sports were dangerous too. A person with a cricket bat would be able to commit a murder, he noted. True enough, and the media response to his comment was not very powerful on the logical front; the Prince's comment supposedly showed that he was insensitive to the Dunblane victims' families.[287] In contrast, Labour arguments offered in Parliament on the day the total handgun ban passed were more logical. Namely: a gun is deadlier than other sporting tools, which is not surprising, since guns were designed for killing.[288] If guns are to survive in a rational political debate, then they must be defended on the basis that guns are legitimate for shooting violent criminals when lesser force will not suffice. In the United States, even the gun prohibition groups concede that guns are used 60,000 to 80,000 times a year for self-defense. Most studies suggest that the number is in the hundreds of thousands, or millions.[289] The number is undeniably large. This agreed-upon large number of legitimate self-defense cases weighs heavily in the debate on gun control. A logical public official must consider that, while a particular gun control proposal may promise a reduction in gun misuse that hurts people, the particular gun control might also impair some of the many instances of guns being used to save people. On the United States balance, there are potential lives saved on each side of the scale. In the British balance, lives are saved only on the prohibition side.

A particular right's vulnerability to a slippery slope may depend on whether its advocates can answer the following question: "If your right kills just one more child, is your right really worthwhile?" What if, after the infamous Nazi march in Skokie, Illinois, a person who watched the parade had been inspired to emulate Hitler, and, three months later, he strangled two Jewish children? What could the ACLU say to their parents? The ACLU could argue that by making sure that the government can never control speech because of its political content, we help ensure that the government cannot suppress dissent. If government could suppress dissent, then hundreds or millions of children might be killed. We should remember, as the ACLU would add, that the Nazis felt it necessary to use their control of the press to prevent the German public from learning that the Holocaust was taking place. Thus, the ACLU could argue that its policy of defending Nazi speech is, ironically, important to the long-run prevention of Nazi practice. This absolutist ACLU position of free speech has become the law of the land.[290]

Our Nazi child-killing case was a hypothetical, but the National Association of Criminal Defense Lawyers really does face cases where enforcement of a criminal procedure element of the Bill of Rights lead to the release of criminals who murder children. Yet the NACDL can respond that its position saves lives; without a strong Bill of Rights, innocent people might be given capital punishment, or imprisoned for the rest of their lives.

2. United We Stand?

Unwilling to support the right to keep and bear arms for defense, as opposed to the privilege to use sporting weapons, British gun owners have also been unwilling to band together for defensive purposes. While Britain has a large number of groups that promote particular shooting disciplines, such as the Clay Pigeon Shooting Association, the National Small-Bore Rifle Association, and the United Kingdom Practical Shooting Association, most of these organizations content themselves simply with running their own competitions. Getting involved in legislative affairs would hardly occur to them and they would never dream of getting involved in legislative affairs on an issue that did not affect their own discipline. The clay pigeon folks paid no attention to how the government was restricting handguns, nor did the handgunners care much about what the government did to the rifle shooters. Indeed, during the debate on the post-Dunblane handgun ban, one might hear a shotgunner claiming that people who enjoy practical pistol shooting are "killers," while a handgunner on a television program retorted that rifles and shotguns are more dangerous than handguns.[291] This rhetoric is the political equivalent of gun-owners forming a firing squad by standing in a circle.

Contrast the my-shooting-sport-only stance of so many British gun-owners with the policy of the American Civil Liberties Union, which not only defends speech it favors, but also speech that it loathes, as was the case at Skokie. The ACLU understands that the principle used to suppress anyone's speech can be used to suppress everyone's.

The firing-squad-in-a-circle attitude of some British gun owners is apparent among some shooters in the United States. Some hunters complain when the NRA defends semi-automatic rifles used by target shooters. Some target shooters complain that the NRA is too involved in fighting for people who want to carry handguns for protection, and almost everybody is willing to let the already heavily-regulated machine gun shooters get regulated out of existence. Nevertheless, the historical accident that the shooting sports in the United States are unified under a single National Rifle Association helps mitigate the tendency to circular firing squads. Although there have been internal struggles, the NRA has always maintained a leadership and a political stance that regards an attack on one type of gun as an attack on all types of guns.[292] It is for this reason that the NRA defends the right to own small, inexpensive handguns, also referred to as "junk guns" or "Saturday Night Specials," even though the NRA's membership does not have much of a direct stake in the guns.[293] The NRA recognizes that bans on any given type of gun just sets the stage for banning another gun and every time a gun is banned and its owners disarmed, there are fewer people left to stand up for the Second Amendment. It is true that many of today's legislators promoting a ban on small handguns for poor people bear no animus towards expensive skeet shotguns, but the British experience confirms that taking a mediocre handgun away from a poor person does, in the long run, endanger the ownership of $1,300 sporting shotguns.

Benjamin Franklin's advice to his fellow revolutionary Patriots that "[w]e must all hang together, or we shall all hang separately" is well understood by mainstream exercisers of First Amendment rights. Eminently respectable entities like the American Library Association or the Washington Post do not hesitate to file amicus briefs in cases involving non-mainstream defendants like Soldier of Fortune or Larry Flynt. This same "all hang together" advice transcends civil liberties boundaries. First Amendment advocates such as the ACLU, Second Amendment advocates such as the NRA, and Fourth Amendment advocates such as the NACDL, are needed to defend the full scope of their particular rights. Those who defend rights become stronger still when they defend the rights of each other. Twenty years ago, the lobbyist from the American Civil Liberties Union and the lobbyist from Gun Owners of America were never seen making joint visits to members of Congress. Perhaps the most important positive development for civil liberties in the 1990s was the forceful emergence of the "Leave Us Alone Coalition"--in which Christian home-schoolers and hemp activist hippies began to find common ground in their common desire to limit federal control of families and schools. In the same vein, groups like the Eagle Forum and Quaker social action groups worked together against wiretapping and the militarization of federal law enforcement.

3. Continued Appeasement?

Almost every time the British government has demanded more power, the great mass of British gun owners have placidly accepted the government's action without protest. The 1996-97 push for handgun confiscation saw the first significant display of mass gun-owner activism in many years, with tens of thousands of law-abiding gun owners and supporters rallying at demonstrations, and letter after letter to M.P.s. It was the biggest and most powerful display of political activism by British gun rights advocates in the twentieth century. If the gun owners had rallied so effectively in 1967, or in 1920, they would not be on the verge of extinction today. If they can sustain the present level of political activism into the next century, they will at least have a chance of survival.

But the politics of British gun owners in most of the twentieth century are a failure. The consequence of the "reasonable" approach of the gun owners has not been a reasonable treatment by the British government. Instead, the government has pressed down restriction after restriction upon the British people, and as every restriction fails to halt the rising tide of crime, the British government invents still more "reasonable" gun controls to distract the public from the government's inept efforts at crime control.

As armed crime grows worse and worse, despite nearly a century of severe firearms controls, the British government expends more and more energy "cracking down" on the rights of the law-abiding British people. The undermining of the right to arms has paralleled the destruction of many other common law rights, including the grand jury right, freedom of the press from prior restraints, the civil jury, freedom from warrantless searches, the right to confront one's accusers, and the right against self-incrimination. People who want to argue that gun rights can be destroyed while other rights prosper must find some other country to use as an example.

The United States' gun control lobbies and their intellectual supporters brim with praise for Britain's "sensible" gun laws. In response, are citizens of the United States who cherish Second Amendment rights necessarily wrong for being reluctant to take any more steps down the slippery slope? Should those United States citizens who cherish other parts of the Bill of Rights look forward to their civil liberty standards becoming more like Britain's?

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H

[250] See supra notes 33-36, 47-51.

[251] See, e.g., New York v. Belton, 453 U.S. 454 (1981) (allowing the search of an automobile in order to protect the officer's safety, even though the occupants of the automobile were under arrest, under restraint, and in the police car); Carroll v. United States, 267 U.S. 132 (1925) (allowing warrantless searches of automobiles).

[252] See David B. Kopel & Joseph Olson, Preventing a Reign of Terror: Civil Liberties Implications of Terrorism Legislation, 21 Okla. City U. L. Rev. 247 (1996).

[253] See, e.g.David B. Kopel & Paul H. Blackman, No More Wacos: What's Wrong with Federal Law Enforcement and How to Fix It (1997).

[254] The reason is obvious, during the period from 1988 to 1993, as legal gun ownership fell by 22%, the violent crime rate increased by 33%, the robbery rate increased by 80%, and the firearm assisted robbery rated increased by 117%. Home Office (1995). See also, Toni Marshall, In Britain, call it Fleece Street: Rates for robbery, assault top those in U.S., study finds, Wash. Times, Oct. 13, 1998, at A13.

[255]Hillyard & Percy-Smith, supra note 197, at 259. Road blocks are now routinely used to prevent people from attending unauthorized demonstrations, including anti-nuclear activities and coal mining strikes.

[256] See DuQuesne & Goodman, supra note 195, at 27.

[257] Douglas Hurd, Home Secretary, Speech to Police Superintendent's Association Conference, Torquay, Sept. 22, 1987, reprinted in Fiddick, supra note 67, at 19.

[258] See Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 Am. Crim. L. Rev. 257 (1984).

[259] See Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934).

[260] See Webb v. Outrim, 1907 App. Cas. 81 (P.C. 1907).

[261] See Ewing & Gearty, supra note 194, at 15.

[262]

The real power struggle is behind the scenes, in the informal advisory bodies with access to Secretaries of State, in the Cabinet committees, in the meetings of Ministers with their powerful back-benchers, and in the informal cabals that focus energies on future policy. A bill before the House signals the end of the real battle and the start of a squabble over detail.

Id. at 6.

[263] See J.J. Craik-Henderson, The Dangers of a Supreme Parliament, in Lord Campion et al., Parliament: A Survey 94 (1952). British MP and constitutional scholar L.S. Amery points out that while in the United States the individual is the starting point of sovereignty, and government receives what is given up by the individual, in Great Britain the people and the government possess what Amery calls "independent and original authority." L.S. Amery, Thoughts on the Constitution 12-13 (1964). Legislation is initiated by the government, and the purpose of Parliament is to provide a forum for the people to reject a governmental action. Id. at 21. Amery describes the British system "of democracy by consent and not by delegation, of government of the people, for the people, with, but not by, the people." Id. at 33.

[264]Lois G. Schwoerer, "No Standing Armies!" The Antiarmy Ideology in Seventeenth Century England 46-49 (London, The Johns Hopkins University Press 1974) (1697). As one British scholar wrote, in rejecting the American assertion that there should be no taxation without representation, "a supreme and uncontrollable power must exist somewhere in every state." James Macpherson, The Rights of Great Britain Asserted Against the Claims of America (1776), quoted in Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States 1607-1788, at 130 (1990).

United States Supreme Court Justice William Paterson, a signer of the United States Constitution, contrasted the English system of government, where "the authority of Parliament runs without limits," to the United States government, where "the Constitution is the sun of the political system, around which all Legislative, Executive, and Judicial bodies must revolve." Vanhorne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 308 (1795).

[265] Canadian law professor Edward Morgan explains that "[i]n the British constitutional tradition, sovereignty resides in the Crown rather than the people, and thus flows from top down rather than bottom up." Edward Morgan, Act of Blindness, State of Insight 13 B.U. Int'l L.J. 1 n.133 (1995). What the United States calls "domestic tranquility," Britain calls "the Queen's Peace." The different phrasing reflects the British assumption that the government is not simply an arbiter between individuals, but an independent power, sufficient unto itself with the authority to take whatever steps it needs to protect its own interest in peace. Likewise, criminal cases in the United States are prosecuted in the name of the people, while British cases are prosecuted in the name of the monarch. One nation is the "United States," the other the "United Kingdom." The head of state in one country is "Mr. President," and in the other "Your Highness." Likewise, the British anthem "God Save the Queen" became in the United States, "My country tis of thee, sweet land liberty, of thee I sing." The monarch no longer exercises political power in the United Kingdom. Nevertheless, the monarchy symbolizes the distinction between the sovereign and the subject.

[266] See Myers v. United States, 272 U.S. 52 (1926) (Brandeis, J., dissenting).

The doctrine of the separation of powers was adopted by the Convention in 1787, not to promote efficiency, but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of government powers among three departments, to save the people from autocracy.

Id. Just as the First Amendment protects an independent press so that it may perform a "checking function" against the government, the right of the people to bear arms serves as the ultimate check. See, e.g., Joseph Story, Commentaries on the Constitution of the United States 1890 (Fred B. Rothman & Co. 1991) (1833). "The right of the citizens to keep and bear arms ... offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if those are successful in the first instance, enable the people to resist and triumph over them." Id.

[267] For more on British notions of the absolute supremacy of Parliament, see Dicey, supra note 170.

[268] As the great Whig pamphleteer John Trenchard warned: "All title arises from an equal distribution of Power; and he that gets an overbalance of Power ... takes away the title from the rest, and leaves them a possession without a Right, which is a Tenure at the Will of the Lord." John Trenchard, A Letter from the Author of the Argument Against a Standing Army to the Author of the Balancing Letter 14-15 (London 1697), quoted in J.R. Weston, The English Militia in the Eighteenth Century: The Story of a Political Issue 1660-1802, at 91 (1965).

[269] See generally Bruce Ackerman, We the People: Transformations (1998). Ackerman celebrates all these changes, and argues that the Constitution can be changed in ways outside the constitutional amendment process. Whether or not one agrees with Ackerman, he is undeniably correct that modern practice is very different from the text of Constitution that was adopted in 1789-91 and in the Reconstruction Amendments.

[270] See generally David Schoenbrod, Power without Responsibility: How Congress Abuses the People Through Delegation (1993).

[271] See generally Robert A. Anthony, Unlegislated Compulsion: How Federal Agency Guidelines Threaten Your Liberty (1998).

[272] The Right Honorable The Lord Scarman OBE, House of Lords, Foreword, in Civil Liberties in Conflict xiii (Larry Gostin ed., 1988). Professor John Dunn of Cambridge finds that the language of British civil liberties "has more the flavor of moral criticism ... than confident appeal to existing or positive constitutional law." In addition, writes Dunn, "the far greater salience of conflicts of class interest in British politics greatly accentuates the externality and conceptual instability of political defenses of civil liberties." John Dunn, Rights and Political Conflict, in Civil Liberties in Conflict, supra, at 21, 23.

When the Law Lords upheld a temporary injunction against the publication of Spycatcher, one of the dissenting Lords complained: "Having no written constitution, we have no equivalent in our law to the First Amendment to the Constitution of the United States of America." Attorney-General v. Guardian Newspaper Ltd., 3 All E.R. 316 (1987) (Lord Bridge of Harwich, dissenting).

[273] Home Office, Firearms: Approval of Rifle and Muzzle-loading Pistol Clubs (1998) (visited Feb. 7, 1999) <http://www.homeoffice.gov.uk/ppd.oppu/club98.htm>.

[274] See Lorton, supra note 43, at 104.

[275] See Glen Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461 (1995).

[276] See generally Akhil Amar, The Bill of Rights (1998).

[277] Some writers, such as Garry Wills or Dennis Henigan argue that common American beliefs about the Second Amendment as an individual right are misguided, but these writers also acknowledge that popular beliefs about the Second Amendment indeed do play a major role in the current gun control battle.

[278] See Britain Plans to Give Police Power to Curb Violent Acts or Threats, N.Y. Times, Dec. 11, 1985. See also Public Order Act, 1986 ch. 64, 18 (Eng.).

When American Nazis were denied a permit to march in the Jewish suburb of Skokie, Illinois, the American Civil Liberties Union went to court and won a permit. See Collins v. Smith, 578 F.2d 1197 (7th Cir. 1978), cert. denied, 439 U.S. 916 (1978).

ACLU President Norman Dorsen criticizes the NCCL for not opposing curbs on racist speech. Dorsen observes that these curbs, originally intended to protect blacks, "are now used against blacks in their communities, trade unions on the picket lines, and the Campaign for Nuclear Disarmament." Norman Dorsen, Is There a Right to Stop Offensive Speech? The Case of The Nazis at Skokie, in Civil Liberties in Conflict 129 (Larry Gostin ed., 1988). Police in Skegness and Mablethorpe used the act to control what they considered a "craze for obscene T-shirts and hats." Ewing & Gearty, supra note 194, at 122.

Despite its relative docility, the National Council for Civil Liberties has been branded a subversive organization by MI5, the national security agency. See Campbell, supra note 185, at 34.

[279] The NCCL turned away a racist transsexual who was pursuing a legal claim to state medical care. The NCCL also rejected a rank-and-file member of the racist National Front who was roughed up while the police conducted a warrantless search of her home and destroyed her property. See Larry Gostin, Editor's Notes, in Civil Liberties in Conflict 118-19 (Larry Gostin ed., 1988).

[280] Ken West of the National Pistol Association stated: "We certainly do not believe that one should be able to obtain firearms by buying them from a supermarket." Transcript, "Gun Control Special," European Journal #20/89 (Oregon Public Television).

[281] Jan A. Stevenson, Sit Perpetuum? 100 Years at Bisley, Handgunner, Nov. 1990, at 21. The Clay Pigeon Association endorsed the new controls as well.

[282] Jackson, supra note 165, at 74.

[283] Advertisement, Sporting Gun, Nov. 1989, at 35.

[284] Sean Gabb, Open Letters to the Gunowners of the United Kingdom, Aug. 21, 1996 (last visited Feb. 7, 1999) <http://freespace.virgin.net/old.whip/guns4.htm>.

[285] Sean Gabb, A Fourth Open Letter to the Gunowners of the United Kingdom, Oct. 16, 1996. A real case for gun ownership can, however, be made both on moral grounds and on the basis of pragmatic considerations. See, e.g.,John R. Lott, Jr. More Guns Less Crime (1998); Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense With a Gun, 86 J. Crim. L. & Criminology 150 (1995); Jeffrey R. Snyder, A Nation of Cowards, The Pub. Interest Fall, 1993, 40.

[286] A Labour Home Secretary Jack Straw explained to Parliament on the night when all handguns were banned, "I recognize, as I have always recognized, that many law-abiding shooters will be inconvenienced or worse, and I regret that. But I am in no doubt about where the balance should be struck between the right to practice a sport and the right to life--especially the right to life of a child." Jack Straw, Hansard, June 11, 1997, at pt. 27, col. 1170.

[287] The Queen's office promptly announced that the entire Royal Family felt very sensitive about everything having to do with Dunblane.

[288] Here the British sporting shooters interject that many of the guns with which they shoot are far removed in design from guns that were designed to kill. The Britons are right that a gun such as a custom-designed Holland & Holland sporting clays shotgun is designed solely for sports, from start to finish. But it is still a shotgun, and shotguns were originally made for firing lead or steel shot downrange to kill a person or an animal. Besides, Tony Blair's New Labour would likely be willing to ban another sport if lives could be saved and the political calculus for prohibition were positive.

[289] See Kleck & Gertz, supra note 285, at 164 (estimating that there are 2.5 million successful defensive gun uses per year in the United States, mostly involving brandishing the gun rather than firing it, and summarizing previous studies).

[290] See Collins, 578 F.2d at 1197.

[291] John Walter, Editor's Column, 37 Guns Rev. 5, 7 (1997).

[292] In this regard, the NRA, which represents consumers, not manufacturers, is simply following the wishes of its gun rights activist constituency. At the annual Gun Rights Policy Conference, a meeting of Second Amendment activists organized by the Citizens Committee for the Right to Keep and Bear Arms, the nation's second-largest gun rights group, the participants each year adopt a "NATO doctrine" resolution for gun rights--whereby an attack on one form of gun ownership is to be treated as an attack on all. (The original NATO doctrine held that a Soviet attack on a vulnerable or isolated NATO member, such as Turkey, should be regarded as an attack on all NATO members. Even if the Soviets had solemnly promised that they only wanted to capture Berlin or Ankara, and had no interest in London, diplomatic realists understood that to allow the piecemeal conquest of small democratic nations would eventually put even the most powerful democratic nations in mortal danger.)

[293] People who can afford to pay thirty-five dollars in annual dues to a political organization can generally afford to buy guns that cost more than $75.