Does Gun Control Lead to Further Erosion of Civil Rights?

Does Gun Control Lead to Further Erosion of Civil Rights?
Written by Howard Nemerov
Wednesday, May 18, 2005


Editor's Note:  The following is an excerpt from Howard Nemerov's forthcoming book, Gun Control: Fear or Fact.



Gun rights supporters claim that gun control contains a “slippery slope” that gradually but inexorably results in erosion of civil rights. They point to examples like USSR, China, and Nazi Germany as examples where disarmament proceeded government-sponsored genocide against the people living in those countries.



In early 2005, the British government enacted The Criminal Justice Act of 2003, which allows a previously acquitted person to be retried if “new and compelling” evidence is produced. Citing the unresolved sexual assault/murder of a young woman in 1989, the government claimed the new law will enable them to retry the accused “if evidence such as DNA material, new witnesses or a confession came to light.” A Home Office spokesperson said, “It is important the public should have full confidence in the ability of the criminal justice system to deliver justice.”[1]



The Act also allows hearsay evidence, including situations where the witness is unavailable to appear in court or has fears about appearing.[2] Thus, the accuser is no longer required to face the accused, and the defense attorney has no opportunity to cross-examine and perhaps create reasonable doubt as to the veracity of the witness’s testimony.



The Act was apparently the government’s response to claims that the Blair government failed in its campaign promise to crack down on crime. In an article from 2002, the government claimed that part of the problem was an out-of-date criminal justice system:



Mr. Blair promised the first major overhaul of the British criminal justice system in more than a century in an attempt to balance the rights of defendants with more rights for victims.



The Blair government also cited delays and inefficiencies in the judiciary and greedy trial lawyers as contributing factors in a breakdown of the criminal justice system.[3] It would seem that the government tacitly admits there are systemic shortcomings that limit in it’s ability to administer justice, but its method of treatment is questionable. Practically speaking, removing double jeopardy eradicates the very motivation necessary for an inefficient system to reform itself, instead placing the emotional and financial onus upon individuals who are hauled into court a second time because of poor investigative work or prosecutorial incompetence.



As a result of what is happening in Britain, the government of New South Wales in Australia is also considering double jeopardy reform, which would



grant the prosecution a new power to apply for an acquittal to be quashed and a retrial ordered where fresh evidence emerges in a case of murder, manslaughter or a crime punishable by life imprisonment, and other conditions are met. The prosecution would also be able to appeal against directed verdicts of acquittal and have greater scope to appeal certain judicial rulings during a trial.[4]



The Council for Civil Liberties at University of New South Wales has gone on record against such reform. They cite national and international laws such as the United Nations International Covenant on Civil and Political Rights, Article 14(7) which states:



No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.[5]



In 2004, the Australian Attorney-General’s Department convened a committee to discuss submissions they received regarding a national proposal to rescind double jeopardy protections. The committee heard “some very articulate and committed opposition to the general principle of meddling with the double jeopardy principle at all,” but “was unpersuaded by it.” The committee was more concerned about the government getting a “fair trial.” The wording of their working document said, “An order for the retrial of a person is not in the interests of justice if the Court of Criminal Appeal is satisfied that a fair trial is unlikely...”[6]



Does a “fair trial” mean “finding him guilty” the next time? Since the government holds all the cards in this matter, changing law to suit their whims, “fair trial” ends up meaning anything they desire. For example, the committee decided that allowing only two days to file an application for appeal was insufficient time. Thus, they proposed a modification from their original draft: “Recommendation 6: The time for lodging an application should be increased from 2 to 10 business days with power to apply to extend.”[7] Since they get to write all the rules, and are “unpersuaded” by arguments that don’t fit their agenda, why not extend the window of appeal to 30 days, or three months, or even three years?



Volokh and Newman explained the concept of the slippery slope in an article:



Many people think of slippery slopes as most applicable to judicial decisions, where judges are supposed to follow precedent and one decision is legally supposed to lead to others… Voters and legislators aren’t legally obligated to take for granted the policy judgment embedded in past legislative and judicial decisions. Still, they often do, because they find it rational to rely on past judgments in order to save the time and effort needed to think through the matter on their own. And so long as this happens—so long as our support of one political or legal decision today can change people’s attitudes and thus lead them to enact another decision later—we have to take this sort of mechanism into account when deciding on an initial proposal.



Don Kates presents the issue from the perspective of a flawed governmental approach to fighting crime:



Governments impose gun control, as England banned handguns, because they are at their wit's end to deal with skyrocketing crime. But gun control does not work: it does not solve the increasing crime problem. So the government has to add more and more curtailments of other civil rights. Thus gun control goes hand in hand with infringement of other rights even though it may not be the direct cause.[9]



There seems to be a presumption of guilt behind this evolving legal reconstruction: dissatisfied with an acquittal, they must haul the alleged offender into court until the government is satisfied they got what they wanted, since the acquittal was not acceptable. “We lost; that wasn’t fair.” Also, there is an indication of the government’s bias against its citizens: the government does not trust the law-abiding citizen with the responsibility of firearms; now it appears the government does not trust law-abiding citizens to handle the responsibility of a jury.



Infringing upon the legal tradition of double jeopardy means that additional power is designated to the government by the government, creating its own body of legal precedent beginning with diminishing the protection of double jeopardy in order to “bring justice” to past victims, and ending with altering legal doctrine to create a presumption of guilt in all cases. This would seem in keeping with the “slippery slope” philosophy that once disarmed, the government proceeds to find reasons to rescind additional civil rights, always justifying it in a reasonable way, just as there is always one more “reasonable” gun control law to be passed on the way to civilian disarmament.



Endnotes





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[1] Double jeopardy law ushered out, BBC News, April 3, 2005. http://news.bbc.co.uk/1/hi/uk/4406129.stm



[2] Criminal Justice Act 2003, 2003 Chapter 44: Amendments of Police and Criminal Evidence Act 1984, Chapter 2, paragraph 116. http://www.hmso.gov.uk/acts/acts2003/20030044.htm



[3] Scotland Yard on a Recruiting Binge, Nicholas Kralev, The Washington Times, July 7, 2002. http://www.nicholaskralev.com/WT-scotland-yard.html



[4] Double Jeopardy Briefing Paper 16/2003, Rowena Johns, Parliament of New South Wales. http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/89C20D04902F4102CA256ECF00098187



[5] Double Jeopardy, Council for Civil Liberties, University of New South Wales. http://www.nswccl.org.au/unswccl/issues/double%20jeopardy.php



[6] DOUBLE JEOPARDY: MCCOC REPORT - MARCH 2004, Model Criminal Code Officers Committee, Attorney-General’s Department, Australian Government. http://www.ag.gov.au/agd/WWW/agdHome.nsf/Page/Publications_Publications_2003_Model_Criminal_Code_Report_-_Double_Jeopardy



[7] Ibid.



In Defense of the Slippery Slope, Eugene Volokh and David Newman, Legal Affairs, March/April 2003, page 22. http://www1.law.ucla.edu/~volokh/slipperymag.pdf



[9] Don B. Kates, retired professor of constitutional and criminal law and author, in an email interview, May 9, 2005.


About the Writer: Howard Nemerov began doing his own research into gun control when he recognized that the media was full of distortions and half truths. He publishes with ChronWatch and other sites, and is a frequent guest on NRA News. He is currently working on his first book, Gun Control: Fear or Fact, which deconstructs and explains the gun control agenda and its arguments, debunking each one with a statistic-rich analysis. This is the handbook for when you want to talk to others about gun control. Howard receives e-mail at [email protected].

Agreed, I doubt anyone in the .gov were expecting to be shot at by gun-owners so they took those rights away from us first, but they certainly went hand in hand.

Y'all may not have seen the attempted first use of an ASBO to quash political dissent the other day.  Anti Social Behvaiour Order, are basicly conditional curfews, etc that if broken land you in Jail, the idea whas that you could apply for one to stop teenage thugs hanging out on street corners throwing rocks at cars, etc.  Rather than just clouting them round the ear  aand telling em to bugger off.

So a 63 year old peace protester had an ASBO Applied for to stop her _peacefully_ protesting outside Greenham common, I think it was the MOD/Mi5 that asked for it. The judge, rightfully, threw it out.

HEre we go:
news.bbc.co.uk/1/hi/england/humber/4555131.stm

and indeed here:
news.bbc.co.uk/1/hi/uk/4552441.stm

Not good.

/PHil

Quoted: Agreed, I doubt anyone in the .gov were expecting to be shot at by gun-owners so they took those rights away from us first, but they certainly went hand in hand. Y'all may not have seen the attempted first use of an ASBO to quash political dissent the other day.  Anti Social Behvaiour Order, are basicly conditional curfews, etc that if broken land you in Jail, the idea whas that you could apply for one to stop teenage thugs hanging out on street corners throwing rocks at cars, etc.  Rather than just clouting them round the ear  aand telling em to bugger off. So a 63 year old peace protester had an ASBO Applied for to stop her _peacefully_ protesting outside Greenham common, I think it was the MOD/Mi5 that asked for it. The judge, rightfully, threw it out. HEre we go: news.bbc.co.uk/1/hi/england/humber/4555131.stm and indeed here: news.bbc.co.uk/1/hi/uk/4552441.stm Not good. /PHil

The Brits already have some of the most far reaching police powers on the planet...what's a few more?  The Special Powers Act was the envy of dictators all over the world, including B.J. Vorster, the Prime Minister of South Africa during the glory days of apartheid, who has been quoted as saying he'd be "willing to exchange all the legislation [of his Government’s new Coercion Act of 1963] for one clause of the Northern Ireland Special Powers Act."  The clause he coveted?  The one that gave the English Government the right to imprison people without charge or trial.  The SPA evolved into the Emergency Provisions Act, and the Prevention of Terrorism Act...but a rose by any other name, eh?  

IIRC, over a 20 years stretch, the English government arrested around 70,000 people in Northern Ireland under the PTA/EPA.  Now, if you take as true British estimates of the IRA having a membership of around 2,000 or so in any given year, you'd have to come to 1 of 2 conclusions:

1)They managed to arrest the entire IRA membership EVERY year for 20 years in a row, with room for 10,000 or so Loyalist paramilities, or
2)They used these laws to stifle legitimate political dissent, and intimidate the general population.    

Unfortunately for the English Government, being in the EU has some drawbacks... they're now under the auspices of the European Human Rights laws.  European Courts have taken a dim view of holding people without charge or trial. In December of 2004, a British court ruled 8-1 that the current practice indeed violated European Human Rights laws.  One of the majority judges wrote that "The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these."  

Absolute power corrupts absolutely, as they say...there is no way that governments won't abuse these powers at some point, once they get them, even in a "democracy".  The words were hardly out of Pres. Bush's mouth about how the Patriot Act and how none of the new "enemy combatant" laws would be used on American Citizens when along comes the gang banger who got locked up...can't remember his name, but he IS an American citizen.  

At least the judge in the case of this woman threw the case out...but the scary thing is that the .gov even tried.  How afraid of one little old lady can they be?  

Q: Why does a dog lick his balls in the middle of the road?  

A: Because he can.



Q: When/why will a government become oppressive.

A: Because it can.



Our forefathers intended power to remain in the hands of the People, the government be subject to the People, not the other way around.

tagged to read when I have more time

not here.

To 'control' the people it is neccessary to remove the peoples means of 'objecting' if they are unhappy with the way they are ruled…

Britain…… does not allow it's people to own handguns and semi-automatic weapons and has no written Constitution - is this a 'free' country?

Republic of Ireland…… does allows it's people to own handguns and semi-automatic weapons and has a written Constitution - is this a 'free' country?


I've got an Irish Passport and I'm sure as fuck hanging on to it 'just in case'.

ANdy

Edited for the accuraccy blunder!

Quoted: Republic of Ireland…… does allows it's people to own handguns and semi-automatic weapons and has no written Constitution - is this a 'free' country? ANdy

Well, it's the Free State, so it must be free

And if they have no written Constitution, then what is thsi, a chara:  

CONSTITUTION OF IRELAND

In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred,

We, the people of Éire,

Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial,

Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation,

And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations,

Do hereby adopt, enact, and give to ourselves this Constitution.

THE NATION


Article 1

The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.

Article 2

It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage.

Article 3

1.    It is the firm will of the Irish Nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island. Until then, the laws enacted by the Parliament established by this Constitution shall have the like area and extent of application as the laws enacted by the Parliament that existed immediately before the coming into operation of this Constitution.

2.    Institutions with executive powers and functions that are shared between those jurisdictions may be established by their respective responsible authorities for stated purposes and may exercise powers and functions in respect of all or any part of the island.

THE STATE


Article 4

The name of the State is Éire, or, in the English language, Ireland.

Article 5

Ireland is a sovereign, independent, democratic state.

Article 6

1.    All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

2.    These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.

Article 7

The national flag is the tricolour of green, white and orange.

Article 8

1.    The Irish language as the national language is the first official language.

2.    The English language is recognised as a second official language.

3.    Provision may, however, be made by law for the exclusive use of either of the said languages for any one or more official purposes, either throughout the State or in any part thereof.

Article 9

1.    1° On the coming into operation of this Constitution any person who was a citizen of Saorstát Éireann immediately before the coming into operation of this Constitution shall become and be a citizen of Ireland.

2° The future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law.

3° No person may be excluded from Irish nationality and citizenship by reason of the sex of such person.

2.    Fidelity to the nation and loyalty to the State are fundamental political duties of all citizens.


Article 10

1.    All natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and Government established by this Constitution and all royalties and franchises within that jurisdiction belong to the State subject to all estates and interests therein for the time being lawfully vested in any person or body.

2.    All land and all mines, minerals and waters which belonged to Saorstát Éireann immediately before the coming into operation of this Constitution belong to the State to the same extent as they then belonged to Saorstát Éireann.

3.    Provision may be made by law for the management of the property which belongs to the State by virtue of this Article and for the control of the alienation, whether temporary or permanent, of that property.

4.    Provision may also be made by law for the management of land, mines, minerals and waters acquired by the State after the coming into operation of this Constitution and for the control of the alienation, whether temporary or permanent, of the land, mines, minerals and waters so acquired.


There is, more of course.  Of particular importance to the GFA were the amendments to sections 2 and 3.
When you said no written constitution, did you mean Bill of Rights?    

DOH!!!! Well spotted Fenian!

That will teach me to 'cut n paste copy!!!!

That SHOULD be ……

Republic of Ireland…… does allows it's people to own handguns and semi-automatic weapons and has a written Constitution - is this a 'free' country?

And yes; it IS a Constitution… I know it well!



My passport… Irish and very proud of it…


ANdy

Governments impose gun control, as England banned handguns, because they are at their wit's end to deal with skyrocketing crime. But gun control does not work: it does not solve the increasing crime problem. So the government has to add more and more curtailments of other civil rights. Thus gun control goes hand in hand with infringement of other rights even though it may not be the direct cause.[9] There seems to be a presumption of guilt behind this evolving legal reconstruction: dissatisfied with an acquittal, they must haul the alleged offender into court until the government is satisfied they got what they wanted, since the acquittal was not acceptable. “We lost; that wasn’t fair.” Also, there is an indication of the government’s bias against its citizens: the government does not trust the law-abiding citizen with the responsibility of firearms; now it appears the government does not trust law-abiding citizens to handle the responsibility of a jury.

Bingo! One inch leads to the loss of miles

The less responsible people are, the more government takes control.

Now it starts in Ireland just as it did in England


McDowell to introduce gun amnesty before clampdown

         
       
 Minister for Justice Michael McDowell is to introduce a weapons amnesty in advance of his planned clampdown on gun offences, writes Liam Reid, Political Reporter

The provision, which will be included as an amendment to the Criminal Justice Bill currently before the Dáil, will allow people with unlicensed or unregistered firearms and weapons to hand them over to gardaí in order to avoid criminal prosecution.

The move is linked to mandatory sentencing for possession of firearms, which will introduce minimum custodial sentences for those caught with an unlicensed firearm, regardless of circumstances.

The amnesty will not apply to weapons that have been used in a crime, and the guns handed over during the amnesty are expected to be forensically tested to identify whether they were used during any recorded criminal offences.

It is one of a number of legal changes Mr McDowell is planning as part of a response to growing concerns about the number of serious crimes involving firearms.

These include new offences for modifying firearms, and heavier penalties for being in possession of a sawn-off shotgun, and a new offence of belonging to a criminal gang.

Eight people have been killed by firearms since January this year, most of them in gangland assassinations. This compares with nine such murders last year. There has also been a spate of armed robberies where families have been held hostage.

The amnesty will be one-off and will last for a number of weeks in advance of the introduction of the mandatory sentencing policy.

There are no reliable estimates from gardaí or the Department of Justice as to the exact number of unlicensed firearms in the State, although it is believed to be in the thousands. A similar initiative in Britain in 2003 resulted in 43,000 weapons and one million rounds of ammunition being handed over to police.

The majority of unlicensed firearms in Ireland are believed to be disused weapons, mainly shotguns, hunting rifles and old military weapons that belonged to family members.

The chief concern of the Garda is that these firearms could be stolen and subsequently used in armed raids or other crimes.

Mr McDowell had hoped to have the legislation passed by the summer recess but because of controversial amendments, including anti-social behaviour orders, electronic tagging and on-the-spot fines for public order breaches, Opposition TDs are expected to insist on a comprehensive debate.

The rise in firearm offences, especially in Dublin, has emerged as one of the main policing concerns at present, and the Government has been criticised by Opposition parties for failing to take adequate steps against it.






© The Irish Times