Time: Sun Dec 14 17:55:38 1997
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Bill of Rights (fwd)
Bcc: sls

>                           Bill of Rights
>                                 By
>                           Richard Munday
>On the day the government announced its handgun ban proposals, 
>newspapers reported that a carriage full of passengers on a London 
>commuter train had been held up by armed robbers, one wielding a 
>pistol. It underscored the limited relevance of measures directed 
>against licensed gun owners (the Home Office has identified two 
>crimes a year in which legally held pistols are used, whilst the 
>police estimate that some 2,500 illegal guns enter the country every 
>week). (1) It underlined further the old wisdom of the Scottish MP 
>Andrew Fletcher, who observed three centuries ago that "he that is 
>armed, is always master of the purse of him that is unarmed". (2)
>That is an unfashionable wisdom today. The Home Office advised Lord 
>Cullen that "as a matter of policy", UK law did not permit the 
>citizen any weapon for his defense. (3) Apparently, the Home Office
>had forgotten the Bill of Rights.
>The Bill of Rights of 1689. which is still in force as statue law and 
>remains our central constitutional document, (4) guarantees only two 
>rights of the individual, and one of these - the ultimate surety, 
>according to Blackstone, of the subject's other liberties - is the 
>right to arms. It was not arms for target shooting that the Bill of 
>Rights guaranteed, but arms for the citizen's personal defense.
>Perhaps the Home Office forgot the Bill of Rights because the arms 
>clause appears at first sight to be hedged about with qualification. 
>It declares: "That the Subjects that are Protestants, may have Arms 
>for their Defense suitable to their Condition, and as allowed by 
>Law". Upon investigation, however, the three apparent caveats prove 
>insubstantial. The right of Protestants to arms was affirmed because 
>it was they who had been disarmed "contrary to Law" after the 
>Restoration: but the right to defensive weapons was not restricted to 
>them, as was made clear by another Act of the same year recalling the 
>same right for Catholics. (5) The wording suitable to their condition 
>reflected the Bill of Rights' appeal to ancient usage (for the Bill
>did not seek to create rights, but to reaffirm immemorial principles 
>of common law): the context was that of the assizes of arms which 
>served as a sort of martial medieval income tax, indexing the 
>weaponry the state could levy from the subject. Constitutional 
>commentary and case law would later confirm that this condition could 
>not be construed to exclude "people in the ordinary class of life" 
>(Rex v. Dewhurst, 1820). The third apparent caveat in the clause, 
>permitting arms as are allowed by Law, was perhaps no constraint at 
>all: in affirming the heritage of common law, the Bill of Rights 
>reiterated a refrain of complaints against misdeeds "contrary to Law" 
>or "against Law", and "according to Law" should arguably be seen in 
>the same linguistic context. If it was a caveat at all, it was a 
>circumstantial one relating to the laws against poaching and bearing 
>arms in terrorem populi, to terrorize the public. (6) Again, case law 
>upheld the Bill of Rights provision in both these contexts. In the 
>eighteenth century, for instance, we find repeatedly that the 
>possession of a dog can be held prima facie as evidence of intent to 
>poach, whereas a gun could be possessed under like circumstances 
>legitimately for self defense; (7) and even an Irishman carrying a 
>loaded revolver in the street in 1914 was ruled not to be committing
>an offense in terrorem populi. (8)
>When Britain introduced her first Firearms Act in 1920, the Bill of 
>Rights provision was respected: the normal "good reason" for the 
>issue of a licence for a pistol was self defense. This remained the 
>case following the Firearms Act 1937; a change of policy was only 
>indicated when the Home Secretary stated in October 1946 that he 
>would "not regard the plea that a revolver is wanted for protection 
>of an applicant's person or property as necessarily justifying the 
>issue of a firearm certificate". (9) Perhaps because applicants were 
>advised that other "good reasons" were open to them, this shift of 
>policy went unchallenged. But if the right to weapons for defense 
>fell into abeyance, it was not thereby extinguished: in 1913 it had 
>been ruled in Bowles v. Bank of England that "the Bill of Rights 
>still remains unrepealed, and no practice or custom, however 
>prolonged, or however acquiesced in on the part of the subject, can 
>be relied on by the Crown as justifying any infringement of its 
>It might be argued that the first attempt to introduce firearms
>legislation that really entrenches upon the Bill of Rights is that 
>presently before Parliament. Whilst the Bill of Rights does not 
>specifically refer to pistols, it could be contended that at least 
>until 1946 their selection as weapons of defense was regarded as 
>natural, and that where arms are carried for that purpose today (e.g. 
>police on protection duties, or individuals specially authorized to 
>carry personal protection weapons) pistols still remain the norm. 
>Moreover if pistols are prohibited, it might be asked what weapons 
>the subject is now permitted under the Bill of Rights to possess for 
>his defense. According to the Home Office's advice to Lord Cullen, 
>"as a matter of policy" the subject is allowed none. Does this policy 
>mean that public servants are being incited to break the law by 
>denying the subject his statutory rights?
>Faced with embarrassment, the government might rely on the doctrine 
>that no parliament may be bound by its predecessors, and seek if 
>necessary to repeal the provisions of the Bill of Rights. But in so 
>doing they must attack the principle of the Bill: for the Bill of 
>Rights claimed not to promulgate anything new, but rather to reaffirm 
>the "true antient and indubitable rights and liberties of the people
>of this Kingdom" that should be upheld "in all times to come". 
>Against this the government must set the view of parliamentary 
>sovereignty expressed most eloquently by Dicey a century ago, that 
>would allow them to "make or unmake any law whatever". (10) Dicey 
>denied that "constitutional" laws were special; (11) though 
>interestingly his illustration of this looked at the Acts of Union 
>rather than the Bill of Rights, (12) and since he wrote, we have seen 
>parliament once again accept the notion of higher law. The doctrine 
>of parliamentary supremacy has, indeed, had a checkered history. 
>Sixty years before the Bill of Rights, the doctrine was affirmed (not 
>without political motivation) by Sir Edward Coke, who declared that 
>the power of parliament "cannot be confined" and recorded the 
>failures of the attempts of earlier parliaments to bind their 
>successors. (13) This did not deter parliament in 1689 from enacting 
>the Bill of Rights, any more than the doctrine enunciated by Dicey 
>prevented parliament binding its successors under Section 2 of the 
>European Communities Act 1972. (14) Perhaps, in the unlikely event 
>that the European Union survives for the next three hundred years and 
>its rulings do not in the meantime conflict with UK law, a future 
>constitutional lawyer will once again assert the absolute supremacy
>of parliament, because it has not been tested. The situation might 
>then be analogous with the Bill of Rights now: for though the Bill 
>has been revised in matters of procedure, the thirteen essential 
>principles of the Declaration of Rights that were supposed to be 
>upheld "for all time to come" still stand.
>The absolute sovereignty of parliament was perhaps always something 
>of a legal fiction: constructive as a fiction, but potentially 
>destructive, even of its own ultimate purpose, as a reality. 
>Blackstone allowed in theory that parliament could act with 
>omnipotence even to the ruin of the country, and recalled 
>Montesquieu's prediction that even as Rome and Sparta and Carthage 
>had lost their liberty and perished, so in time would England at the 
>hands of her legislature; but in reality he did not think this would 
>come to pass. (15) He believed that there were natural rights upon 
>which government could not legitimately encroach. (16) Dicey, too, 
>allowed in theory that parliament could do anything that was not 
>"naturally impossible", but in practice saw that it was constrained 
>by political realities. (17) He was less sanguine, perhaps, than was 
>Blackstone about those constraints: and he looked to the introduction
>of the referendum as an external check on the exercise of arbitrary 
>power by parliament. (18) In the seventy years since Dicey's death 
>the concerns he expressed have grown. In 1950 Craik-Henderson 
>reflected on how the changing composition of the House of Commons 
>with the emergence of the paid career politician had established 
>really a Cabinet rule, in a "servile but supreme parliament". (19) 
>The dangers were no longer theoretical: parliament, whose central 
>purpose had been to check arbitrary government, could now be its 
>tool. (20)
>The question whether parliament can now override the Bill of Rights, 
>is at once the question whether it is proper for it to do so. The 
>Bill of Rights set out the claims of parliament as part of the 
>constitutional framework of legitimate rule, in ignoring which it 
>declared that Restoration governments had acted unlawfully. The twin 
>pillars of that framework were the old principle of government by 
>common counsel, in which our notion of parliamentary sovereignty is 
>founded; and the ancient yardstick of custom, in which our notion of 
>precedent, and therewith of the rule of law, is rooted. These 
>enduring constitutional precepts were not merely the whim of 1689.
>Unfashionable though it might now be, the arms provision of the Bill 
>of Rights was also no passing foible. The common law right it 
>expressed was, indeed, as old as English history itself. (21) It was 
>enumerated by Blackstone as the final safeguard of the subject's 
>other rights, for "in vain would these rights be declared, 
>ascertained, and protested by the dead letter of the laws, if the 
>constitution provided no other method to secure their actual 
>enjoyment". (22) In recourse "to vindicate these rights, when 
>actually violated or attacked, the subjects of England are entitled, 
>in the first place, to the regular administration and free course of 
>justice in the courts of law; next, to the right of petitioning the 
>king and parliament for redress of grievances; and lastly, to the 
>right of having and using arms for self-preservation and defense". 
>(23) A hundred years later, Dicey's contemporary James Paterson would 
>still remark that "in all countries where personal freedom is valued, 
>however much each individual may rely on legal redress, the right of 
>each to carry arms - and these the best and the sharpest - for his 
>own protection in case of extremity, is a right of nature indelible 
>and irrepressible..." (24)
>It was not merely a theoretical right. In a material rather than a 
>cinemagraphic sense, British society was much more a "gun culture" in 
>the early years of this century than it is today. Conan Doyle's Dr. 
>Watson dropping his revolver into his pocket before walking the 
>London streets indeed illustrated what was then a commonplace. The 
>"Tottenham Outrage" of 1909 presents a telling vignette of the 
>reality of that time: (25) pursuing the perpetrators of an attempted 
>wages robbery across north London, the police borrowed four pistols 
>from passers-by; other armed citizens fulfilled what Dicey still 
>recognized as a legal obligation of the subject to halt felons by 
>joining in the chase themselves. (26) Today we might be shocked by 
>such a thought; Londoners then were apparently more shocked by the 
>idea of an armed robbery. In the years before the First World War, 
>when anyone could purchase a pistol, total firearms crime in the 
>metropolis ran at less than fortieth of that today. (27)
>Come forward to 1946, when the Home Office decided that self-defense 
>would no longer necessarily be a "good reason" for a pistol licence, 
>and we find that armed robbery, the most significant index of serious
>armed crime, totaled 25 incidents in London. Today we have that 
>number every two weeks. (28) Over the past thirty years, as 
>enforcement policies have steadily reduced the number of legal 
>firearms in circulation, firearms crime has risen in lockstep. In 
>1979 Professor Harding at Oxford warned that further gun controls 
>might prove "counter-productive", (29) and criminologists in a number 
>of countries have since then argued that reducing the levels of 
>legitimate firearms ownership might actually promote crime. (30)
>Perhaps, if the House of Lords pauses to remember the Bill of Rights 
>during the deliberation on the current Firearms Bill, its members 
>might address those unfashionable considerations. They might note 
>that even today in Britain, Home office figures (not shown to Lord 
>Cullen) indicate that in constabulary areas where legal firearms 
>ownership is higher, armed crime is lower: and that this is still 
>true if one factors out differences between town and country and 
>looks at the proportion of offenses committed with guns. (31) They 
>might remember too the wisdom of that father of penal reform, Cesare 
>Beccaria, who wrote two centuries ago:
>False is the idea of utility that sacrifices a thousand real
>advantages for one imaginary or trifling inconvenience; that
>would take fire from men because it burns, and water because one
>may drown in it; that has no remedy for ills, except destruction.      
>The laws that forbid the carrying of arms are laws of such a
>nature. They disarm only those who are neither inclined nor
>determined to commit crimes. Can it be supposed that those who
>have the courage to violate the most sacred laws of humanity, the      
>most important of the code, will respect the less important and
>arbitrary ones, which can be violated with ease and impunity, and      
>which, if strictly obeyed, would put an end to personal liberty -
>so dear to men, so dear to the enlightened legislator - and
>subject innocent persons to all the vexations that the guilty
>alone ought to suffer? Such laws make things worse for the
>assaulted and better for the assailants; they serve rather to
>encourage than to prevent homicides, for an unarmed man may be
>attacked with greater confidence than an armed man. They ought to      
>be designated as laws not preventive but fearful of crimes, produced 
>by the tumultuous impression of a few isolated facts, and not by 
>thoughtful consideration of the inconveniences and advantages of a 
>universal decree. (32)
>1. "The Use of Licensed Firearms in Homicide - England & Wales", Home
>Office RSD evidence to the Dunblane enquiry, reprinted in Munday &
>Stevenson, Guns & Violence (Piedmont 1996) pp.321-326 & commentary
>pp.341-363; Frank Cook MP. speech in Hyde Park 1.12.1996 & Hansard
>4.12.1196 col. 1155.
>2. Andrew Fletcher, Political Works, 1749, p.7.
>3. "Comments on the Research Note in the Government Evidence (Annex
>G)", Home RSD evidence to the Dunblane enquiry, reprinted in Munday &
>Stevenson, op.cit., P.210.
>4. "The Bill of Rights is perhaps the nearest approach to a
>constitutional code which we possess", Sir William Anson, The Law and
>Custom of the Constitution, (5th Edn.,Oxford 1922).
>5. W&M Sess.1,c.15.
>6. Statute of Northampton 1328.
>7. Cf. Rex v. Filer, 1722; Bluet v. Needs, 1736; Rex v. Gardner,
>1739; Malloch v. Eastly, 1744; Wingfield v. Stratford, 1752; Rex. v.
>Hartley, 1782; Rex v. Thompson, 1787.
>8. Rex v. Smith, 1914; cf. Rex v. Dewhurst, 1820, & Rex v. Meade,
>9. C. Greenwood, Firearms Control (London 1972), p.72.
>10. A.V. Dicey, Introduction to the Study of the Law of the
>Constitution, (8th Edn., London 1931) p.xviii.
>11. Ibid., p.84.
>12. Ibid., pp. 62-63.
>13. Edward Coke, The Fourth Part of the Institutes of the Laws of
>England (1628: this edn. London 1747) p.36, p.43.
>14. Dicey himself observed that "The uncertain character of the
>deference paid to the conventions of the constitution is concealed
>under the current phraseology, which treats the successful violation
>of a constitutional rule as a proof that the maxim is not in reality
>part of the constitution" (Ibid.,p.437).
>15. William Blackstone, Commentaries on the Laws of England (Oxford
>1765) Book I pp. 156-157.
>16. The provisions of the Bill of Rights and the other principal
>constitutional documents reflected "that residuum of natural liberty,
>which is not required by the laws of society to be sacrificed to
>public convenience", ibid., Book I, p.125. Cf.p.70:"And it hath been
>antient observation in the laws of England, that whenever a standing
>rule of law, of which the reason perhaps could not be remembered or
>discerned, hath been wantonly broken in upon by statutes or new
>resolutions, the wisdom of the rule hath in the end appeared from the
>inconveniences that followed the innovation"; & p.226: "James had
>broken the original contract between king and people", the terms of
>which were then declared after the Revolution.
>17. Dicey, op. cit., pp.69-79.
>18. "It is probable, if not certain, that any one, who realizes the
>extent to which parliamentary government itself is losing credit from
>its too close connection with the increasing power of the party
>machine, will hold with myself that the referendum judiciously used
>may...revive that faith in parliamentary government which has been
>the glory of English constitutional history" ibid., p.c.
>19. "A politician is almost a term of abuse in many countries, but
>fifty years ago in this country Members were universally believed to
>be men of principle and of sufficient independence to oppose any
>measures, from whatever source, that might adversely affect our
>constitution or parliamentary system", J.J. Craik-Henderson, "The
>Dangers of a Supreme Parliament", in Lord Campion et al., Parliament:
>A Survey (London 1952) p.94.
>20. It is ironical, but perhaps unsurprising, that recent years have
>seen calls for a new Bill of Rights: cf., e.g., A. Lester, A British
>Bill of Rights (2nd edn., Institute for Public Policy Research 1996).
>21. Cf.S.Halbrook, That Every man be Armed: The Evolution of a 
>Constitutional Right Albuquerque 1984) pp.37-43.
>22. Blackstone, op.cit., Book I, p.136.
>23. Ibid., p.140.
>24. James Paterson, Commentaries on the Liberty of the Subject and 
>the Laws of England Relating to the Security of the Person (London 
>1877), p. 441.
>25. R.W. Gould & M.J. Waldren, London's Armed Police (London 1986) 
>26. Dicey, op.cit., pp.493-495, citing Foster:" Where a felony is 
>committed and the felon flyeth from justice, or a dangerous wound is 
>given, it is the duty of every man to use his best endeavors for an 
>escape. And if in the pursuit the flying party is killed, he cannot
>otherwise be overtaken, this will be deemed justifiable homicide. For 
>the pursuit was not barely warrantable; it is what the law requireth, 
>and will punish the willful neglect of".
>27. Statistics compiled 1911-1913 by the Commissioner of Police of 
>the Metropolis indicated an average of 75 incidents a year in which a 
>firearm was used or possessed (Greenwood,op.cit., p. 36); 1992-1994 
>the Metropolitan Police recorded an average of 3,084 firearms 
>offenses (Home Office RSD).
>28. Munday & Stevenson, op.cit.,p.244.
>29. Ibid.,p.116.
>30. Cf.,e.g.,Professor Csaszar (University of Vienna):"Experience 
>shows that tightening the gun laws affects only the law abiding.
>Their progressive disarmament can ultimately even promote crime, as 
>the probability of armed defense against aggression diminished" 
>(Osterreichische Richtezeitung 9/1994,p.180); Dr. Dobler (University
>of Freiburg): "The lesson that a reduction in the number of firearms
>available does not necessarily mean a reduction in the case of gun 
>crimes is also clearly applicable to Germany. It is indeed 
>conceivable that raising the level of firearms ownership would have a 
>depressive effect on crimes of violence and against property" (E. 
>Dobler, Schufwaffen and Schufwaffendriminalitat in der Bundesrepublik 
>Deutschland, Freiburg I. Br. 1994, p.207); & discussion in Munday & 
>31. Peter Jackson et al., "Was the Dunblane Enquiry Misled?" 
>available at 
>32. Cesare Beccaria, Dei Delitti e delle Pene (1764; English trans. 
>by H. Paolucci, On Crimes and Punishments,1963) pp. 87-88. 

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