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PART XI


 

Towards Closer Analysis of Slippery Slopes

While slippery slopes are frequently invoked in political and legal debate, little attention has been paid to factors that contribute to the real, as opposed to the merely theoretical, danger that a first step down a slippery slope may lead to severe damage or even elimination of a civil liberty. This Essay has identified the following factors that helped lead to the destruction of the right to arms in Great Britain:

    media sensationalism about abuses of the right and media hostility toward the exercise of the right;

    technological changes that introduce new and socially controversial ways of exercising the right;

    the hesitation of extending civil liberties principles developed under old technologies to new technologies;

    the creation of government jurisdiction, in the form of a licensing system, that created a platform for administrative constriction of the right;

    political leaders gaining political benefits (such as diverting the public from the death penalty, or demonstrating the leader's compassion) from attacks on the right;

    restrictions aimed at teenagers, which over the long term reduced the number of adults interested in the exercising of the right, and, consequently reduced the number of adults interested in defending the right politically;

    shifting the burden of proof away from the government, which no longer had to prove the need for new restrictions or for the denial of a permit to exercise the right, and placing the burden on the individual, who had to prove his or her need to own a particular item;

    restrictions created by administrative fiat that further reduced adult entry into or continuance in the activity, thus driving the exercise of the right to levels so low that rights advocates became an insignificant political group;

    the production of deliberately misleading data by the government in support of restrictive legislation;

    registration of the property of persons who exercised the right, which was later used to facilitate confiscation of property;

    the government's loss of trust in ordinary citizens.

In addition, we identified one other potential factor that might encourage movement down a slippery slope, that being the prominent success of an earlier step down the slope; this factor did not appear to be present in England. None of the British gun controls resulted in any statistically noticeable reduction in crime in the years after their enactment.

These factors are not the only factors that could make a slippery slope situation dangerous; but when slippery slope arguments are raised, the presence (or absence) of these factors may indicate how real the slippery slope danger is. The more factors that are present, the greater the potential slippery slope risk.

This Essay has also identified several structural elements in the British system of government that contributed to the gradual elimination of the right to arms in Great Britain:

    rights are subject to balancing against perceived government or social needs;

    the government is not constrained by internal checks and balances;

    there is a consensus that Parliament, which is, in practice, a few leaders of the majority party, rather than the people or the law, is sovereign;

    there is no written constitution;

    the absence of a right in a written constitution impedes the growth of rights consciousness among the people.

Regarding most of these elements, the United States is radically different from Great Britain. Consequently, civil liberties of all types are stronger in the United States than in Great Britain. However, the erosion of federalism and of the separation of powers over the last half century in the United States should caution Americans against complacency regarding the security of their constitutional structure.

We also identified several factors about the political defense of gun rights in Great Britain that made the arms right vulnerable to the slippery slope. Most of these factors have parallels regarding the defense of other civil liberties in Britain:

    the right was defended only on sporting grounds, and not on the basis that it protects people from dangerous criminals or from dangerously criminal governments;

    the right's defenders accepted and even applauded a great deal of regulation of the right;

    the right's defenders accepted the principle that the right could be further regulated whenever the government saw a need, rather than only when there was a genuine necessity for more regulation;

    the right's defenders usually appeased the government, rather than resisting unjustifiable government demands for more controls;

    people who exercised the right in one way were often unwilling to defend people who exercised the right in a different way.

As with constitutional structure, the American system is considerably more sound than the British one. Civil liberties organizations such as the National Rifle Association and the American Civil Liberties Union are bolder than their British counterparts, and better able to articulate strong theories of right that can withstand heavy political assault and pressure to balance the right against other interests.

In the United States' political and legal debate, arguments for or against slippery slopes have heretofore often been made in a simplistic manner, with little more than assertions that slippery slope dangers do or do not exist. We hope that this Essay can provide a step toward a more complex analysis of slippery slopes by highlighting some of the elements that can increase or decrease slippery slope risks.

Slippery slopes are not inevitable, but neither are they imaginary. The British experience demonstrates that many civil liberties, including the right to arms, really can slowly slide all the way to the bottom of the slippery slope. While we have not aimed to convince readers to value any particular civil liberty, such as arms, speech, or protection from warrantless searches, we have attempted to show that it is reasonable for groups that do honor such rights, like the NRA, ACLU, or NACDL, to refuse to acquiesce in "reasonable" infringements of those rights. Even though, as John Maynard Keynes  observed, we are all dead in the long run, persons who cherish a particular civil liberty want that liberty to endure not just in their own lifetimes, but in the lives of subsequent generations. In the long run, the best way to protect a given civil liberty from destruction may be to resist even the smallest infringements in short run.

 

 

 

 
 


 

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