Posted on 08/19/2011 6:11:36 AM PDT by marktwain
As I read Paul Rahe’s recent Ricochet post “Rioting for fun and profit,” it occurred to me that events in England had made this Malcolm’s moment — Malcolm as in Professor Joyce Lee Malcolm. Professor Malcolm is a historian and constitutional scholar specializing in British and colonial American history who teaches on the faculty of the George Mason University Law School.
Professor Malcolm has devoted much of her scholarly career to the historical roots of the right to bear arms, on the one hand, and the link between the abrogation of the right to bear arms and the rise of criminal violence, on the other. Her pioneering work in To Keep and Bear Arms: The Origins of an Anglo-American Right (1996) contributed to the revivification of the Second Amendment in the Heller case. Her 2004 book Guns and Violence: The English Experience bears pointedly on the events of the past two weeks.
Earlier this week the Wall Street Journal published Professor Malcolm’s column “The soft-on-crime roots of British disorder.” Thinking along the same lines as the editors of the Journal, last week I invited Professor Malcolm to write for us on recent events in England. She has graciously responded with the column-length essay “The English riots: How British law fosters disorder.” Professor Malcolm writes:
The most amazing thing about the reaction of English MPs to last week’s terrible violence was how surprised they were. For a country whose criminal law is invariably sympathetic to offenders, nearly always harsh on their victims, and unwilling to pay for adequate policing the surprise is that they were surprised.Two stories hitting English papers during June and July provide a glimpse of current British law in action.
On June 23 around midnight a masked gang broke down the back door of a home in Salford, in northwestern England. The householder, 59, his son and the son’s girl friend called the police and tried to defend the home and themselves. They managed to stab one of the gang who died of his wounds. When the police arrived they arrested the householder, his son and the son’s girlfriend on suspicion of attempted murder.
On July 11, a headline in The Sun read “Shopkeeper, 72, nicked after `stabbing to death robber.’” Mr. Coley’s Manchester flower shop was closed and he was playing dominoes with a friend when two masked men armed with guns broke in. In the struggle that followed, Mr. Coley’s friend was injured but Coley managed to stab one robber, who later died, while the other fled wounded. The Manchester police are holding Mr. Coley for attempted murder.
Since at least 1953 the English government has insisted that citizens depend on the police for protection and not try to protect themselves. The Prevention of Crime Act of 1953 prohibited anyone carrying an article in a public place with the idea it could be used for protection if they were attacked. If discovered they are charged with carrying an offensive weapon.
Since 1964 self-defense has not been considered a good reason to keep a handgun, even if for those who lived in a remote area. Then in 1998 all handguns were banned. Toy or replica guns are also illegal. A man was arrested for holding two burglars with a toy gun while he contacted the police.
More recently knives with points have been made illegal. A list of prohibited weapons, possession of which carries a 10-year prison sentence, includes not only machine guns but chemical sprays and knives with a blade more than three inches long. An American tourist from Arizona who protected herself from attackers in the subway using her penknife was arrested for carrying an offensive weapon.
The government does not permit even someone who is unarmed from acting forcefully when attacked if his or her assailant is harmed in the process. If a citizen is attacked in the street he is to flee. If a citizen is attacked in his home he is not to injure the attacker beyond what a court later considers a reasonable use of force. If a citizen harms his assailant he will be accused of assault, or, as the cases cited above illustrate, murder or attempted murder should the attacker be killed.
Burglars can sue for damages and the police are careful to ensure they don’t get hurt. This past February the gardeners of Surrey were told they could not use wire mesh on the windows of their sheds because burglers might get hurt breaking in.
Tony Martin, an English farmer jailed for killing one burglar and wounding another with his shotgun during the seventh break-in of his home was denied parole because he would pose a threat to burglars. The career burglar he wounded was granted parole and sued Martin for his injuries. Worse, the burglar was given public funds to pursue his lawsuit.
While law-abiding citizens have been treated strictly offenders have not. Since the 1950s it is only under extraordinary circumstances that anyone under 18 is put in jail. Instead offenders are given a warning, a fine or community service. Since young offenders know they will not be incarcerated there is little to deter them from committing ever more bold crimes. One of those brought to court during the recent riots was an 18-year old who had been hauled before the courts 21 previous times but never jailed.
Sentences for adult criminals have been shortened and they routinely serve only half of these. In lieu of policemen on the beat the English have opted for surveillance cameras. These are much cheaper but all a potential offender needs to do is to wear a hood or mask to greatly diminish their value. English police now dealing with the riots boast they have 20,000 hours of footage.
Even offenders who have been apprehended tend to be let off with a caution or electronic bracelet. This saves money on prison but means they are back on the streets in short order. In 2009 70 percent of burglars the police managed to apprehend avoided prison.
The extent of the tolerance of criminality and refusal to allow law-abiding people to protect themselves has led to an atmosphere where gangs can operate with virtual impunity. The recent, widespread riots, apart from their scale, are not radically different from the violence that has been occurring for many years.
Let us hope the English politicians so surprised and angry at the lawlessness in their cities realize it is time for change, time to permit people to protect themselves and to bring some rigour into the punishment of offenders.
In addition to the books cited above, Professor Maclolm is the author, most recently, of Peter’s War: A New England Slave Boy and the American Revolution.
But, they could not disarm the people if the people had the right to self defense, because from that flows the obvious right to arms suitable for self defense.
So, they came up with the theory that the citizen had no reason to defend themselves, because that was the purpose of the state.
At the time, it may even have seemed reasonable. England had an extremely low rate of homicide, about .71 per hundred thousand. Joyce Lee Malcomb documents this gradual English policy of disarmament and elimination of the right to self defense in her book on Guns and Violence: The English Experience, mentioned in the article.
We have learned that homicide is mostly a cultural phenomena, and the culture in England has changed quite a bit in the last few decades, much of it due to immigration.
Pingferlater.
It follows, that this is a ligitimate profession. There is no reason for entrepreneurs and other ambitious, creative people not to engage in this profession.
Anybody with a functioning brain will expect this profession to grow.
Actually, it's not much different from the legal profession in the U.S., and it's about as respectable.
If the British people don't like it, they can always elect different politicians; however, there is no reason to suspect that they don't like it. Apparently they do. So it's only a problem for non-Brits who visit the U.K., but they can avoid doing this.
What's the problem?
Problem is, they don’t really have any viable political parties willing to extend Brits the rights to arms and self defense.
Nice article. The problem is that a lot of it is complete and utter rubbish.
Firstly, the ‘Salford burglary’ which is the first case mentioned. Arresting the shopkeeper on a charge of attempted murder makes this and such British cases sound much much worse than it is.
It is standard in the various British laws, in a case where a person has died a violent death, to arrest the other person/people involved until an investigation can be done and its determined whether the person arrested has done anything wrong. Arresting on this charge therefore is just a police procedure, not a statement that its illegal to defend oneself in Britain. Its a formality more than anything.
I know it may seem odd, but the arrest and the charge actually wont mean anything unless the shopkeeper/houseowner has been one of only a tiny minority who had a burglar under control and decided to kill them anyway (like the man who had his family hold a burglar while he ran over him and tried to kill him with his car).
99.99% of British people involved in such incidents and arrested on what seems an odd charge were released asap as the facts of their right to self defence were quickly established.
I have already pointed this out here several times on FR very recently as there was a case last month which had its thread on FR. In that case, again, all people ‘arrested on murder charges’ were released because they clearly defended themselves.
Ms Malcolm omits that the ‘arrested’ people were all quickly released after the facts of the case were established. Coincidental omission?. I think not.
Secondly, Ms Malcolm again fails to point out that the 72 year old man was also quickly released.
AND I AM AFRAID HER ARTICLE JUST GETS WORSE.....
Thirdly, she cannot even get the simple year correct regarding British weapons and self-defence. It was 1946, not 1964.
Fourth, and this is where frankly either she is making it up as she goes along or she is woefully uninformed, she makes the allegation that toy guns and replicas are banned.
UTTER RUBBISH. The idea that toy guns are banned in the UK is complete tosh, the shops are full of them. And replicas are not banned, I know, as I own four of the things!.
Fifth, and this is the best piece of drivel by Ms Malcolm:
‘The government does not permit even someone who is unarmed from acting forcefully when attacked if his or her assailant is harmed in the process. If a citizen is attacked in the street he is to flee.’
Again, complete rubbish.
Britain has the right to self defence AND has the law of citizens arrest. Every word in that quote is nonsense. The assertion for example that we have to flee an attacker is frankly so bizarre I’d check Malcolm hasnt had a stroke recently....
I KNOW, over and above the fact that I am British and well-informed, that we have the right of self defence, have powers of citizens arrest and dont have to ‘flee’ an attacker because I MYSELF was a victim of burglary in Sept 2008, where I had to fight the attacker and subdue him.
So I know at first hand that Malcolm assertions are bilge.
Lastly, this:
‘. Since the 1950s it is only under extraordinary circumstances that anyone under 18 is put in jail.’
Again, utter rubbish.
Anyone over 40 in the UK remembers ‘borstal’: which was the prison system for young offenders under 18. Borstal was notorious as a very hard and brutal system, in fact many are calling for its return (it was phased out in the 80’s and replaced with other forms of teenage/child jails).
As for more recent times, under 18 offenders are NOT simply fined or give community service, most young offenders are sent to ‘young offenders institutions’, which are prisons for under 18’s.
Again, the notion that we dont jail our young is nonsense. In fact both the EU and UN have criticised Britain for jailing too many!.
I find it frightening that a supposed (acclaimed) academic is so utterly wrong and clueless on so much of British justice.
I have no problem with criticism of the UK or its legal/crime systems and problems, but Americans and others must do so on the basis of actual facts. Not lies, half truths and utter nonsense.
You are right, this article is utter claptrap. Where she hasn’t made stuff up, she has selected the facts and ommitted others in order to create her own context. I’ve scarcely seen an article of such abject intellectual dishonesty, at least outside of the Climate Change lobby...
I have read her books, and they seemed to be well researched.
Maybe I need to be more critical of their contents.
I have read quotations from the police in Britain, where they advised people to not fight back against attackers, and not to interfere if they witnessed an attack. Of course, simple advise is not legally binding.
Even on the street in several American states, the legal requirement has been that you are required to retreat if possible, to avoid a confrontation.
This is only recently being reversed, by adoption of what is called here the "castle doctrine" law.
Is it possible that the laws on this vary from England to Scotland, to Wales?
WRT weapons, in addition to guns and knives, you are, unfortunately, not allowed to carry any object in public for the specific purpose for using it as a weapon. This isn't to say you can't carry something that can't be used as a weapon, but you would have to justify having it on you for another reason (I carry an unbreakable umbrella for example (google it). I can justify this, because it is an actual umbrella, it just happens to be a very robust one that won't break if I had to use it on an assailant's head.
However, walking around with a baseball bat would be difficult to justify.
In the home, there are restrictions on owning firearms or explosives, but you can own anything sharp or heavy, or buy a crossbow, and use them if need be, although because of the grey area regarding what is 'reasonable force' you might end up having to try and convince a jury that you aren't a violent nutcase for having a collection of exotic weaponry spread all over the house...
No, the laws on self defence are the same throughout Britain.
Other laws may vary, but not this one. There are three legal systems in the UK: Scotland, England/Wales, NI.
In America, the standard derives from the British standard, but the two may have diverged a good bit. In the United States, there are generally only two classes of force, physical force and deadly force. You can use physical force against unlawful physical force and deadly force against unlawful deadly force (which is a subclass of physical force). The key is what the person using the force knew at the time they knew it and what they reasonably believed.
So, much becomes subjective, in the sense that you must convince a judge that what you knew could justify what you did. Here is an example: I know that numerous people have been killed by a single blow of a closed fist to the head. In any case, a fist to the head can easily render a person unconscious, and make you completely helpless to the adversary who hit you. Because I have that knowledge and can articulate it, I can use deadly force to prevent someone attempting to hit me with a fist, because they in fact are threatening me with deadly force if they threaten it. Would it be possible to do the same in the UK? Could a person in the UK use a cane, or walking stick, or any weapon against a strong young person who threatens them with fisticuffs?
For a number of years, the courts have restricted the use of force to prevent crime, but much of that has been by judicial decisions rather than by legislation. For about a decade the trend has been the opposite, giving more leeway and protection to the legitimate use of deadly force in the prevention of crime. There can be significant variations, in the American federal system, by State. In Texas, for example, you can use deadly force to protect property at night. In Arizona, if you use deadly force to prevent rape or kidnapping, it is assumed to be reasonable.
My small understanding of British law has been that the trend has been the opposite until recently, making the use of deadly force much more restrictive than it used to be, say 75 years ago, with some reversals toward more leniency in the last decade or so.
Any clarifications of the above view from across the pond would be appreciated.
Someone ought to send the scotsman’s reply to Scott at Powerline so professor Malcolm can respond to it. I would like to see what she has to say.
Powerline has published a response from Professor Malcolm to the scottsman's post:
Malcolm’s reply is up at Powerline.
I haven’t read this post, I just saw the Powerline piece and clicked back to here.
http://www.powerlineblog.com/archives/2011/08/malcolms-moment-revisited.php
Obviously, most Americans would find this practice unacceptable.
Here, an arrest is, generally, recorded permanently, regardless of the disposition of the case. Most job applications will require you to reveal and explain any arrest, and employers can and will use that to deny you employment.
Any arrest, especially one involving violence and injury/death, would REQUIRE one to retain an attorney, with costs easily approaching five figures, regardless of adjudication.
Lastly, any arrest would mean a trip to jail and a hefty bond to get released. Depending on the locale, the short stay in jail could be hazardous to one's health.
I can only assume that arrests in England are considered much differently, otherwise you wouldn't dismiss them and their negative ramifications so blithely.
Hi, I have sent an email to Powerline in response to Malcolm’s retort, I assume/hope they print it.
That said, here it is in full:
‘Let me respond point by point:
‘The information I have written, while obviously exciting the scotsman to the point of hysteria, happens to be accurate.’
Again, not so. And the fact that an educated layman can counter your ‘facts’ is again troubling.
‘To take just a couple of points: When the British police response to a wounded assailant is to arrest the person attacked–the homeowner attacked at night in his own home or a shopkeeper whose shop was invaded by armed burglars-and threaten them with charges of assault, attempted murder, or murder they are beginning with the assumption that the victim is guilty. The facts should be ascertained before the arrest. In America Mr. Coley would not have been arrested.’
Ms Malcolm misses an obvious point, that from the police’s point of view. And that is initially they may not even be sure for some time who the householder is. Therefore everuone ‘gets nicked’. As to the procedure of the British police, it may be odd, but it is what it is. The police must ascertain whether a householder used reasonable and legitimate force. Recently, a householder arrested a burglar after a chase of half a mile from his home, and still that distance away from his property, had his family hold the man down whilst he drive over him in his car.
Now, do I have any sympathy for the lowlife burglar?. No, but it illustrates that the police must discern reasonable force.
The ‘strange’ British way has worked by and large for many years, not despite the hype by the media and commentators like Malcolm over a tiny minority of cases. Again, I will point out that odd way or not, the people ‘arrested’ are all released very quickly, usually within hours. The arrests are simply in almost all cases, a formality, a procedure.
‘As Glanville Williams, author of a famous textbook on British criminal law wrote: “For some reason that is not clear, the courts occasionally seem to regard the killing of a robber (or a person who is feared to be a robber) as of greater moment than the safety of the robber’s’ victim in respect of his person and property.” He added that the requirement that an individual’s efforts to defend himself be “reasonable” was “now stated in such mitigated terms as to cast doubt on whether it still forms part of the law.”’
If Ms Malcolm would seek to educate herself on recent British law, she would see that both the Labour government in its third term of 2005-2010 and the new Tory-Liberal Democrat coalition have publicly sought to and in fact have STRENGTHENED the law of self defence in Britain.
And Granville Williams, Ms Malcolm’s British ‘go-to guy’?. Mr Williams died in 1997. And his last book was written in 1978!. Any opinion Mr Williams may have is therefore over 30 years out of date at the very least. Ms Malcolm’s academic sleight of hand is frankly shameful. Either sloppy academic work or deliberate distortion of the facts.
‘As for having to retreat if attacked on the street, the BBC has explained that if attacked you may defend yourself with a briefcase, a handbag or keys but once you have broken free you must retreat. Should you give your assailant an additional blow you are guilty of assault.’
The BBC?. Apologies, I thought that the actual guidelines, rules of British law are set by Parliament and by the Home Office. Not a vague webpage from a media monolith whom this week was caught faking documentary footage for the umpteenth time.
As Ms Malcolm may be aware, I was myself the victim of a burglary with violence in 2008. A burglary in which I had to chase, apprehend and subdue the (armed) miscreant. And got a stabbing in the hand with a screwdriver for my troubles. I had to punch the gentleman in question three times to subdue him, and I made full declaration of that fact, both to police and in my statement to court. And both the police and the judge found my use of violence perfectly legitimate.
So I know that the assertion made above is wrong. The level of violence allowed by the self defender will vary on the circumstance. Common sense. For Ms Malcolm to suggest that there is in Britain a ‘fixed idee’ of self defence and legitimate violence is simply wrong.
‘On the illegality of replica guns, the Violent Crime Reduction Act of 2006 bans the manufacture of realistic imitations. It defines unrealistic imitations as being at least 50 percent colored bright green, blue, red, pink, yellow, purple or transparent.’
Correct.
BUT that is markedly different from your original statement that toy guns and replicas are banned in the UK.
Toy guns are not banned, and the idea they are is, well, bizarre. To be polite.
As for replicas, the law changes have modified the style of replicas that can be bought and sold. But that does not mean that it is illegal to own any.
‘The date for no longer being able to obtain a gun for self-defense was indeed 1964. Home Office classified instructions to the police in that year state: “It should hardly ever be necessary to anyone to possess a firearm for the protection of his house or person…this principle should hold good even in the case of banks and firms who desire to protect valuables or large quantities of money; only in very exceptional cases should a firearm be held for protection purposes.”’
Nope.
The 1964 handbook may say so, but the fact remains that the decision made by the British govt to restrict the rationale of self defence as one for owning a firearm was 1946. The 17th of October 1946, to be exact, by Home Secretary James Ede. The public announcement of the fact was during a debate on firearms certificates.
To suggest 1964 simply because Ms Malcolm has come across it in her research is, again, sloppy academic work.
The correct 1946 decision by the Home Secretary is easily available on the internet, most notably via the archives of Hansard, the famous transcribers of all British Parliamentary business.
Here is the Hansard link for the 1946 debate:
(The 1946 decision by James Ede has also been noted in such books on British gun law such as Colin Greenwood’s seminal ‘Firearms Control: A Study of Armed Crime and Firearms Control in England and Wales 18 (1971)) ‘
Pretty cool to see the new media in action here. We have a blogger acting as an interlocutor of sorts for an anonymous forum poster and a public intellectual. I don’t think I’ve ever seen this arrangement before. Thank you Scott Johnson and Professor Malcolm for being willing to engage with the hoi polloi here at FR.
Compelling and very persuasive. Kudos, scotsman.
You are “trying to have your cake and eat it too”.
You have criticized Ms. Malcolm’s reference to a statement attributed to the BBC for it not being authoritative, and have then attempted to refute it by relating a personal anecdote which is also hardly authoritative.
Your dismissal of Ms. Malcolm’s assertions about banning of toy and replica guns as “bizarre” is, by your own admissions, highly questionable. It would appear that your dispute is only over a matter of the degree to which they are banned, rather than over the black-and-white issue of whether or not they are banned.
You rail at Ms. Malcolm for using as a reference an author who died in 1997 and last published in 1978, only to later make a point via a reference to a book published in 1971. While your use of that source may be perfectly legitimate, you have undercut your own arguments by seemingly basing the illegitimacy of Ms. Malcolm’s source(s) primarily on the source’s publication date. That may indeed be relevant information to disclose as one means of illuminating your argument, but it’s hardly dispositive.
Furthermore, the hyperbole that you employ in dismissing Ms. Malcolm’s use of Mr. Williams’ writings (as well as elsewhere in your piece), does little to convince this reader of anything beyond reinforcing the impression that you do indeed seem to be a bit “excitable”.
Your own argument seems to be that only Parliament and the Home Office are legitimate sources of information about “the law”, but then go on to point to references and anecdotes that are secondhand at best in an attempt to bolster your argument. Which is it, then?
So, your “point by point response” appears rather less substantial than you might have at first imagined.
Some may find your argument about the date of self defense being disallowed as a reason for firearms certificates to be less certain.
Here are the paragraphs of the source referenced:
FIREARM CERTIFICATES (REVOLVERS) HC Deb 17 October 1946 vol 427 c257W 257W§ 112. Sir R. Young
asked the Secretary of State for the Home Department whether the police authorities can now issue permission for certificates to be given on application to persons who wish to own revolvers for their personal needs; and whether it is intended to return the pistols to those dispossessed of them by the refusal to renew certificates two or three years ago or whether the value of surrendered pistols is to be made good.
§ Mr. Ede
Anyone who considers that he has a good reason for possessing a firearm can at any time apply to the appropriate chief officer of police for a firearm certificate and, if a certificate is refused, he can appeal to the Quarter Sessions. The application will fall to be dealt with in the light of the circumstances of the case but, for my part, I could not regard the plea that a revolver is wanted for the protection of an applicant's person or property as necessarily justifying the issue of a firearm certificate. There can be no question of compensation being paid from police funds in any case in which a person is unable to dispose of a firearm for which he is unable to obtain a firearm certificate in accordance with the law.
So, the question becomes one of authority. It appears to me that Mr. Ede is simply stating a personal opinion, without the force of law. I could easily be wrong. In 1946, was the personal opinion of the Home Secretary considered to have the force of law?
I would, regardless of the law. I don't believe you would be charged if you could demonstrate that they attacked you and you didn't do anything to provoke it (this is why its always good when threatened with a violent situation not to escalate or contribute to it with trash talk, because that kind of negates any self-defence argument).
If you actually killed someone and they were unarmed, you probably would end up having to try and persuade a jury that you used reasonable force, which, rightly or wrongly, would be a bit of a tough sell if you were armed and they weren't.
In Britain, if you are only allowed to kill someone if you have very good grounds to believe that either you or someone else is in danger of being killed (this applies to the police as well btw). Killing someone to protect property is not allowed.
Obviously, it would be really really difficult to prove you had reasonable grounds to feel you were under threat of death or serious injury if you were a 35 year old 16 stone bruiser armed with a knife and you killed an unarmed 12 year old burglar. At the very least you would end up having to explain it to a jury. You wouldn't get away with not being charged like you might if the boot was on the other foot...
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