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PART
XI
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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