Law and Disorder

1 Leave a comment on paragraph 1 0 By the twentieth century, both the US and UK began to enact legislation that controlled firearm use and ownership consistently with the different interpretations of Mill outlined above. In the UK, the legitimate exercise of individual rights was subjected to the harm principle while in the US it was the legitimate exercise of state power that was subject to such scrutiny. British legislation reinforced state power because gun rights advocates could not prove that guns were harmless, whereas American legislation reinforced individual rights because gun control advocates face strong opposition in claiming that guns were in and of themselves the cause of harm.

2 Leave a comment on paragraph 2 0 The UK began to tighten its private firearm ownership laws in the early twentieth century. Permits were required for many guns after the 1903 Pistols Act and by 1920 police officers were formally invited to deny some citizens access to firearms if they were considered to be a danger to the public. With the landmark Firearms Act of 1937, the UK Parliament again legislated to control guns more strictly, this time issuing the police with much tighter instructions for licensing. Self-defense was no longer considered a legitimate reason for owning a gun as firearms were claimed by the Home Secretary to be “a source of danger” to the public. 1 Nowhere in the political discourse during this period of increased gun control did the notion of the ‘right to bear arms’ take hold. The pertinent issue was not rights so much as harm, and guns were (rightly or wrongly) presumed to be harmful to the public; so harmful in fact that they threatened the right to life.

3 Leave a comment on paragraph 3 0 The 1937 Firearms Act and the subsequent periods of public disarmament marked a key shift in the relationship between the law and the state in Britain. Joyce Lee Malcolm, in Guns and ViolenceThe English Experience captures this change: “The old notion that people had a duty to protect themselves and their neighbours, so central a part of English law enforcement and of the English constitution over many centuries, was reversed… Personal safety could and ought to be left to the state.” 2 For better or worse, this shift in policy was made possible only because the right to bear arms was understood not as immutable, but merely in service of the rights to life, liberty and estate. By the mid-20th century, British politicians and the British public embraced the idea that the right to bear arms was at best an auxiliary right, available to private individuals only on rare occasion.

4 Leave a comment on paragraph 4 0 The only deviations from the disarmament trend in the UK were the First and Second World Wars, when the British Isles were under genuine and sustained local threat. During this time there were rapid increases in the number of members of the public who were armed due to wartime conscription, National Service, and the Home Guard. Once the war had been won, all British citizens, including war-time military personnel, surrendered their firearms unless they possessed the appropriate gun license, in keeping with contemporary legislation. 3

5 Leave a comment on paragraph 5 0 In the United States, a rationale resembling the harm principle has been used to support the rights of individuals to privately own firearms. That is to say, the right to bear arms cannot be infringed upon by the state without proof that the right to bear arms inflicts harm on others. As the right to bear arms was elevated to that of a near-natural right in the 18th and 19th centuries, it became increasingly difficult to legislate against guns without disturbing a right that became increasingly seen as primary, not auxiliary.

6 Leave a comment on paragraph 6 0 It follows then that 20th century legislation in the US was not nearly as far-reaching as British legislation. The National Firearms Act of 1934, enacted in response to the Saint Valentine’s Day massacre of 1929 in Chicago, only curbed the use of certain weapons used by gangsters in violent encounters. The 1968 Gun Control Act, passed in the wake of the assassinations of President John F. Kennedy, Senator Robert Kennedy, Malcolm X and Martin Luther King, Jr., made a series of ad hoc regulations while failing to fundamentally reconsider the role of firearms in a modern, post-war society. For instance, the direct mail order of firearms was effectively banned in order to curb the sale of firearms to “certain categories of individuals” (under which Lee Harvey Oswald allegedly would have fallen), yet it would be another 25 years before background checks were introduced to actually prevent the sale of firearms to such persons, as captured in the 1993 Brady Law. 4 5

7 Leave a comment on paragraph 7 0 The historical outlines provided by this paper so far suggest that the divergent political reactions to Dunblane and Sandy Hook were not stand-alone events that can be analyzed in isolation, but rather were part of a trend that has been ongoing since US Independence. Indeed, there were two earlier comparisons concerning firearms that foreshadow Dunblane and Sandy Hook. The first was a pair semi-automatic mass shootings in the 1980s. The second was a pair of self-defense shootings that became polemical topics in each country. Both comparisons serve as clear examples of how the divergence in understanding and treatment of the right to bear arms translates into radically different outcomes in the social, political and legal arenas of the US and the UK. In both cases, the reaction in the US demonstrated that guns were resolutely part of the social fabric necessary to uphold life, liberty and estate. In the United Kingdom, guns were understood to be a threat to those same rights.

8 Leave a comment on paragraph 8 0 In 1987 in Hungerford, England, a gunman armed with two semi-automatic rifles and one semi-automatic pistol shot and killed 16 people, wounded 15 others, and then shot and killed himself. The weapons used were legally obtained and licensed. This event, known as the Hungerford Massacre, remains one of the worst criminal atrocities committed in the United Kingdom and led to decisive, wholesale legislative action. Michael McNair-Wilson, Member of Parliament for Newbury (the constituency under which Hungerford fell), argued in the House of Commons that “a watershed was reached as a result of that dreadful tragedy,” and that “to ensure that such an event could not happen again… nobody should be allowed to possess a semi-automatic rifle at home.” 6 His proposals were quickly enacted, with the 1988 Firearms Amendment Act introducing new restrictions on gun licensing and ownership, including prohibition of privately owned automatic and semi-automatic firearms.

9 Leave a comment on paragraph 9 0 Two years later, in Stockton, California, a gunman armed with a semi-automatic rifle and a semi-automatic pistol shot and killed five school children, wounded 30 others, and then shot and killed himself. The weapons used were legally obtained and licensed. California soon passed an Assault Weapons Control Act that banned a patchwork of semi-automatic weapons but was not exhaustive. At the federal level, the Assault Weapons Ban was enacted in 1994 after much Congressional back and forth. The American public was left with legislation that targeted only certain types of semi-automatic weapons and grandfathered approximately 1.5 million weapons manufactured before 1994. After 10 years, the ban was allowed to expire and subsequent attempts to reinstate it, even in the wake of Sandy Hook, have failed.

10 Leave a comment on paragraph 10 0 The second set of comparisons involve a man defending his home with firearms. In 1999, Tony Martin, a farmer from Norfolk, England, was sent to prison for shooting and killing one of two men who had broken into his home. Martin’s home was regularly broken into and during one break-in he fired an illegally held, unlicensed shotgun at his intruders, killing one and wounding the other while they retreated from his home. He was initially sentenced to life in prison for murder but this was reduced by the UK Court of Appeal to five years for the lesser charge of manslaughter. Self-defense, under UK common law, is permissible as a justification for otherwise illegal action only when “reasonable force” is used in the face of threat—Martin’s use of force was found by the court to be unreasonable given the circumstances. As previously mentioned, firearms licenses cannot be granted to British citizens for reasons relating to self-defense since the introduction of the 1937 Firearms Act.

11 Leave a comment on paragraph 11 0 McDonald v. City of Chicago (2010) is an interesting counterpoint to the case of Tony Martin. Otis McDonald, a 76 year old retired maintenance engineer, had lived in the Morgan Park neighborhood of Chicago since 1971. Over time, his neighborhood suffered from an influx of gangs and drug dealers, and home-invasion became commonplace. As a hunter, McDonald legally owned shotguns; however, he found shotguns too cumbersome for self-defense and, as such, wanted to purchase a handgun to defend himself in the event of another robbery. Unable to legally buy a handgun due to a city-wide handgun ban enacted in 1982, he joined three other Chicago residents in filing a lawsuit which became McDonald v. Chicago. The Supreme Court upheld his basic right to own a handgun to protect his home and, in doing so, ruled the Chicago handgun ban unconstitutional.

12 Leave a comment on paragraph 12 0 A similar case, District of Columbia v. Heller, (2008) held that “the inherent right of self-defense has been central to the Second Amendment right,” and that a “handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by an American society for that lawful purpose.” 7 8  It is beyond the scope of this paper to determine how successful this local gun ban, or any local gun ban, could be; however, it is important to note that the right for Americans to use their guns for “lawful purposes” superseded the city’s right to legislate as it thought best to be in order to reduce violence.

13 Leave a comment on paragraph 13 0 While the Heller Court stated that their opinion “should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” this caution was mitigated by a more revealing claim: “We are aware of the problem of handgun violence in this country,” Justice Antonin Scalia wrote in the majority opinion, “but the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” 9 In presupposing private firearm ownership as a static condition for cities across the US, the Supreme Court effectively eliminated guns from the national conversation about handgun violence.

14 Leave a comment on paragraph 14 0 Notes:

  1. 15 Leave a comment on paragraph 15 0
  2. Malcolm, Joyce Lee. (2002) Guns and Violence – The English Experience, Harvard University Press, Cambridge, MA, pg. 155.
  3. Ibid. pg. 163.
  4. HC Deb 14 Feb 1946, vol. 419, cols. 538-40. Accessed at: http://hansard.millbanksystems.com/commons/1946/feb/14/unlicensed-firearms-surrender#S5CV0419P0_19460214_HOC_264
  5. Gun Control Act of 1968. H.R. 17735, 90th Cong. (1968). Accessed at: http://www.gpo.gov/fdsys/pkg/STATUTE-82/pdf/STATUTE-82-Pg1213-2.pdf
  6. Brady Handgun Violence Prevention Act. H.R. 1025, 103rd Cong. (1993). Accessed at: http://www.gpo.gov/fdsys/pkg/BILLS-103hr1025rh/pdf/BILLS-103hr1025rh.pdf
  7. HC Deb 26 October 1987, vol. 121, cols. 28-73. Accessed at: http://hansard.millbanksystems.com/commons/1987/oct/26/firearms#S6CV0121P0_19871026_HOC_270
  8. District of Columbia v. Heller–554 U.S. 570 (2008). Accessed at: http://www.supremecourt.gov/opinions/07pdf/07-290.pdf
  9. The reason that Heller, which preceded McDonald by two years, was not sufficiently ground-breaking is because it occurred in the District of Columbia, a federal territory. This left some uncertainty as to it’s influence on state legislation. McDonald made the same ruling at the state level, claiming that the Second Amendment was incorporated under the Due Process Clause of the Fourteenth Amendment, therefore protecting the right to bear arms from infringement by any local government. The Due Process clause stipulates that state legislation must act in accordance with those rights enshrined at the federal level in the Bill of Rights. Passed following the Civil War, Due Process was ostensibly seen as an attempt to ensure that states and local governments did not deprive African Americans, now citizens, from the rights enshrined in the Bill of Rights.
  10. District of Columbia v. Heller–554 U.S. 570 (2008). Accessed at: http://www.supremecourt.gov/opinions/07pdf/07-290.pdf
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Source: http://ppj.matrix.msu.edu/a-tale-of-two-nations/law-and-disorder/