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Malcolm’s moment(UK)
powerlineblog.com ^ | 18 August, 2011 | Scott Johnson, Joyce Lee Malcolm

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.


TOPICS: Crime/Corruption; Culture/Society; News/Current Events; United Kingdom
KEYWORDS: banglist; bloggersandpersonal; defense; police; uk
This is, in part, a consequence of the UK gun laws. The UK government decided that it did not want its people to be armed, for political reasons. The government was afraid of insurrections.

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.

1 posted on 08/19/2011 6:11:41 AM PDT by marktwain
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To: Oberon

Pingferlater.


2 posted on 08/19/2011 6:26:10 AM PDT by Oberon (Big Brutha Be Watchin'.)
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To: marktwain
Obviously, the British Government has made burglery and armed robbery a ligitimate business. It is no longer a crime.

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?

3 posted on 08/19/2011 6:38:38 AM PDT by Savage Beast ("This is the great eternal question: Are 'Liberals' evil or stupid?" --Ann Coulter)
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To: Savage Beast

Problem is, they don’t really have any viable political parties willing to extend Brits the rights to arms and self defense.


4 posted on 08/19/2011 7:05:30 AM PDT by Little Ray (FOR the best Conservative in the Primary; AGAINST Obama in the General.)
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To: Little Ray; marktwain; Savage Beast

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.


5 posted on 08/19/2011 9:39:19 AM PDT by the scotsman (I)
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To: the scotsman

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...


6 posted on 08/19/2011 10:25:52 AM PDT by sinsofsolarempirefan
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To: the scotsman; All
It is too bad that Professor Malcolm has got her facts wrong.

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?

7 posted on 08/19/2011 10:37:31 AM PDT by marktwain (In an age of universal deceit, telling the truth is a revolutionary act.)
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To: marktwain
I Don't know about Scotland, but in England and Wales, you are allowed to use 'reasonable force' to defend yourself, either in the street or at home. Basically, you are allowed to use violence against an intruder in your house or a mugger in the streets and you will not face charges (you may be arrested as scotsman has said until the facts have been ascertained). What you aren't allowed is to use excessive force (i.e. caving someone's skull in for calling your mum nasty names) or to use violence to punish an offender once they no longer prevent a threat. This is a perfectly reasonable intention.

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...

8 posted on 08/19/2011 12:49:58 PM PDT by sinsofsolarempirefan
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To: marktwain

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.


9 posted on 08/19/2011 3:38:21 PM PDT by the scotsman (I)
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To: sinsofsolarempirefan
I Don't know about Scotland, but in England and Wales, you are allowed to use 'reasonable force' to defend yourself, either in the street or at home. Basically, you are allowed to use violence against an intruder in your house or a mugger in the streets and you will not face charges (you may be arrested as scotsman has said until the facts have been ascertained). What you aren't allowed is to use excessive force (i.e. caving someone's skull in for calling your mum nasty names) or to use violence to punish an offender once they no longer prevent a threat. This is a perfectly reasonable intention.

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.

10 posted on 08/19/2011 8:56:20 PM PDT by marktwain (In an age of universal deceit, telling the truth is a revolutionary act.)
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To: marktwain; the scotsman

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.


11 posted on 08/19/2011 9:11:07 PM PDT by Yardstick
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To: Yardstick; the scotsman
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 Moment Revisited

12 posted on 08/20/2011 10:26:17 AM PDT by AHerald ("Do not fear, only believe." - Mark 5:36)
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To: Yardstick; the scotsman

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


13 posted on 08/20/2011 10:27:07 AM PDT by jocon307
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To: the scotsman
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.

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.

14 posted on 08/20/2011 10:58:42 AM PDT by Trailerpark Badass
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To: AHerald; jocon307

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:

http://hansard.millbanksystems.com/written_answers/1946/oct/17/firearm-certificates-revolvers#S5CV0427P0_19461017_CWA_141

(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)) ‘


15 posted on 08/20/2011 11:31:27 AM PDT by the scotsman (I)
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To: jocon307; AHerald; ascotsman; marktwain

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.


16 posted on 08/20/2011 11:48:32 AM PDT by Yardstick
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To: the scotsman

Compelling and very persuasive. Kudos, scotsman.


17 posted on 08/20/2011 12:02:46 PM PDT by AHerald ("Do not fear, only believe." - Mark 5:36)
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To: the 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.


18 posted on 08/20/2011 12:22:28 PM PDT by Zeppo ("Happy Pony is on - and I'm NOT missing Happy Pony")
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To: the scotsman
You certainly scored points about using the BBC as a source, and about toy guns.

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?

19 posted on 08/20/2011 12:48:21 PM PDT by marktwain (In an age of universal deceit, telling the truth is a revolutionary act.)
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To: marktwain
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?

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...

20 posted on 08/20/2011 12:57:19 PM PDT by sinsofsolarempirefan
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To: Trailerpark Badass
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.

Over here, you don't get a criminal record merely for being arrested.

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.

Over here, you can use a free duty solicitor that won't cost you anything. 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.

If you are arrested in Britain, you can be detained for up to 48 hours (worst case scenario, if you are suspected of terrorism). If you haven't been charged, you will be detained in a single police cell. Suspects that haven't been charged can be released on police bail, which does not involve the payment of a bond. You actually have to be charged with something before they can remand you in custody until your trial and force you to share cell space with other criminals in the meantime, and you are only remanded in custody until trial if you are deemed a danger to the public or a serious flight risk.

I can only assume that arrests in England are considered much differently, otherwise you wouldn't dismiss them and their negative ramifications so blithely.

Yes it is, from the looks of things being arrested in America is a punitive measure in itself, inflicted on people who haven't even been charged with anything...

21 posted on 08/20/2011 1:25:57 PM PDT by sinsofsolarempirefan
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To: sinsofsolarempirefan
I can only assume that arrests in England are considered much differently, otherwise you wouldn't dismiss them and their negative ramifications so blithely.

Yes it is, from the looks of things being arrested in America is a punitive measure in itself, inflicted on people who haven't even been charged with anything...


The United States is a big heterogeneous country. In some places, being arrested can be a very serious punishment. I think that is a nasty flaw in our criminal justice system, but it is getting better, and will likely become much better as surveilence technology continues to decrease in price.

I have been teaching concealed carry weapons courses in Arizona for 15 years. I tell my students that if they become involved in a deadly force situation, expect to be held for a day or two by the police while they sort things out. It doesn't happen all the time, but it is fairly common. Much depends on how clear-cut the circumstances are.

We had a person in Arizona who killed someone who was attacking him. It seemed pretty clear-cut to me, but it took a couple of appeals and three years before he was exonerated and freed. He was initially convicted and spent three years in jail.

He was a retired school teacher who had never been in trouble with the law. His attacker was someone with a violent history and mental problems who was living out of his car.

If you wish to read about the case:

http://www.haroldfishdefense.org/

22 posted on 08/20/2011 1:38:27 PM PDT by marktwain (In an age of universal deceit, telling the truth is a revolutionary act.)
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To: marktwain

That case just highlights the importance of allowing evidence that can put a justifiable homicide in context. I’m sure the prosecution would have allowed evidence that theorised a defenden’t motive, so it would only have been fair for the defence to do the same. But it also highlights what can go wrong legally if you are better armed than an assailant who comes off worse...


23 posted on 08/20/2011 2:24:30 PM PDT by sinsofsolarempirefan
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To: Zeppo

I second Zeppo’s response the Scottsman.

Scottsman’s excitability and also his penchant for the use of invective and personalizing factual disputes overpowers his reason.


24 posted on 08/20/2011 2:50:01 PM PDT by BCrago66
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To: sinsofsolarempirefan
That case just highlights the importance of allowing evidence that can put a justifiable homicide in context. I’m sure the prosecution would have allowed evidence that theorised a defenden’t motive, so it would only have been fair for the defence to do the same. But it also highlights what can go wrong legally if you are better armed than an assailant who comes off worse...

I use it as an example to show that you should not give a statement to the police until you have spoken with an attorney.

I don't want to high jack this thread, but it was a very unusual case in Arizona jurisprudence. It is highly unusual to have the state legislature have to pass legislation four different times in order to correct what was perceived to be an injustice.

It might be worth noting that our current director of Homeland Security, former U.S. Attorney General for Arizona, appointed by President Bill Clinton, former Arizona Governor, Janet Napolitano, vetoed the legislation that would have given Harold Fish another trial. She did it twice, for what I thought were extremely questionable reasons.

A flaw in the Arizona law about self defense was corrected because of that case.

25 posted on 08/20/2011 3:12:33 PM PDT by marktwain (In an age of universal deceit, telling the truth is a revolutionary act.)
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To: sinsofsolarempirefan
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

This is a core concept in teaching about justification for the use of force in the United States.

26 posted on 08/20/2011 3:20:45 PM PDT by marktwain (In an age of universal deceit, telling the truth is a revolutionary act.)
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To: Zeppo; BCrago66

1—The BBC is a media organisation. For an academic to use it as the authority on a particular point is frankly ridiculous. For you and I to use it would be bad enough.

The BBC is a media organisation, it is not the creator of laws nor is it the organisation who dispenses guidelines and rules.

2—Toy guns are not banned, and the assertion is so ridiculous I almost considered not actually dealing with it. As to replicas, Ms Malcolm stated in her article that they were banned. Again, an astonishingly appalling piece of research by an academic.

In her retort to me via Powerline, you will notice she shifts her argument, because she knows that I was right. That replicas were and are not banned, only those not subject to recent laws regarding the colour and style.

3—Ms Malcolm used her author as the focal point of her point, I used the actual Hansard link from 1946 to make my (correct) point. My use of the 1971 book was merely an addendum, what I said was that the 1946 proof is found in books as far as back as 1971 and before, to show just how wrong she got her ‘1964’ point.

My reference to the 1971 book was neither here nor there, I didnt need it to make my salient point. Malcolm used and needed Williams to make hers.

3—My ancedote is very relevant.

I am British. She is not.
I live here. She does not.
I have been a victim of British crime. She has not.

I have experience of the actual (Scottish and English) legal systems, having been both a victim and a particpant (court clerk in both Scotland and England AND a civilian worker for the police in Glasgow and the Criminal Injuries Compensation Authority, a job which entailed dealing with the courts, the police and the victim and their families).

So I KNOW that this academic is telling the biggest nonsense. She is either a very poor academic or she is lying and distorting facts to make a spurious argument.

4—It is very relevant regarding her use of an author/expert dead for 14 years and not published for over 30. Because she is using his outdated expertise to cement her point on a issue where that expertise is outdated BECAUSE of the law changes that have happened 1997-2011 (Labour and Tory govts). Again, she is either woefully out of date or she is deliberately distorting the argument.

5—No, I am not excitable.

I AM angry. Very angry that an academic, of all people, is peddling such nonsense about Britain and the British legal systems.

Wouldnt you be angry if the tables were reversed?. Or is it ok for Americans to get angry at pompous Limeys and Eurotrash, but when we get annoyed, we are just over-excitable?.

And you miss an obvious point about me:

ALL the other British Freepers who have posted in the Malcolm threads have backed me 100% and stated also that what Joyce Lee Malcolm says is utter rubbish.

So dismiss me, but you might want to think that when all the British people on this site say something is a lie, it just might be a lie......


27 posted on 08/20/2011 3:26:11 PM PDT by the scotsman (I)
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To: marktwain

You have to understand that as he was taking part in a Parliamentary debate in his capacity as Home Sec, therefore he was not giving a personal opinion. When he or any senior minister makes such a statement, they are stating govt policy on an issue.

I understand the use of ‘I’ might confuse, but he was speaking as the Home Secretary, not as ‘I’, the individual.


28 posted on 08/20/2011 3:29:02 PM PDT by the scotsman (I)
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To: the scotsman
I understand the use of ‘I’ might confuse, but he was speaking as the Home Secretary, not as ‘I’, the individual.

As Home Secretary, then, he was able to make major policy decisions such as this without debate in Parliament or the passing of legislation?

It appears to me that was the case.

Britain isn't the only place the bureaucracy is more the master than the servant. We have experienced it in the United States as well. Might I mention the EPA.

29 posted on 08/20/2011 3:55:13 PM PDT by marktwain (In an age of universal deceit, telling the truth is a revolutionary act.)
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To: sinsofsolarempirefan
Yes it is, from the looks of things being arrested in America is a punitive measure in itself, inflicted on people who haven't even been charged with anything...

Well, in the US, you can't be arrested without probable cause that you've committed a crime. They can't just lock you while they figure out if you've done something wrong, even if only for 48 hours.

If they don't have reasonable suspicion that one HAS committed a crime, supported by evidence, you cannot be arrested.

So while arrests are more punitive here, they are not used to "figure things out."

Of course, if subsequent investigation produces probable cause, they will swear out an arrest warrant and come and get you.

30 posted on 08/20/2011 5:25:04 PM PDT by Trailerpark Badass
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To: Trailerpark Badass; sinsofsolarempirefan

Forgot to add, once arrested, you must be charged within 48 hours or released.


31 posted on 08/20/2011 5:26:44 PM PDT by Trailerpark Badass
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To: marktwain
I have been teaching concealed carry weapons courses in Arizona for 15 years. I tell my students that if they become involved in a deadly force situation, expect to be held for a day or two by the police while they sort things out. It doesn't happen all the time, but it is fairly common. Much depends on how clear-cut the circumstances are.

Maybe outside the home or auto, but in Georgia, there would have to demonstrable evidence that the force was used in something other than self-defense for there to be an arrest.

I have always considered probable cause had to be articulable, not just "we don't know what happened, sit in this cell while we figure it out."

32 posted on 08/20/2011 5:43:10 PM PDT by Trailerpark Badass
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To: Trailerpark Badass
I have been teaching concealed carry weapons courses in Arizona for 15 years. I tell my students that if they become involved in a deadly force situation, expect to be held for a day or two by the police while they sort things out. It doesn't happen all the time, but it is fairly common. Much depends on how clear-cut the circumstances are.

Maybe outside the home or auto, but in Georgia, there would have to demonstrable evidence that the force was used in something other than self-defense for there to be an arrest.

I have always considered probable cause had to be articulable, not just "we don't know what happened, sit in this cell while we figure it out."

If someone was threatened, shot or killed, and there are conflicting stories about what happened, there is often probable cause. Our two statements are not in conflict.

33 posted on 08/20/2011 5:56:28 PM PDT by marktwain (In an age of universal deceit, telling the truth is a revolutionary act.)
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To: BCrago66; Zeppo; marktwain; Yardstick; the scotsman
Scottsman’s excitability and also his penchant for the use of invective and personalizing factual disputes

When a Freeper relates an incident from his direct personal experience to illustrate the misepresentation by an apparently reputable academic of easily verfiable fact, only to have that experience dismissed or even disbelieved, then a little 'excitability' and 'invective' are surely in order? In the circumstances, his response strikes me as a model of decorum.

I've come late to this thread, but would like to add my endorsement (along with that of the other British Freepers the Scotman has mentioned) of everything he has said.

34 posted on 08/21/2011 1:37:20 AM PDT by Winniesboy
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To: Trailerpark Badass
Stabbing someone to death is reasonable grounds to suspect murder, I would have thought. If being arrested in Britain was more like being arrested in the US, this would probably be a bigger deal. But most people who are arrested in Britain are released within hours, as was the case with these men over here who killed criminals justifiably...

The US Justice system seems to have a rather dubious policy of making being arrested part of the punishment by throwing you in with other criminals and then forcing you to declare the fact that you were arrested to future employers etc even if you haven't been convicted or accepted a caution for anything. That is a bit screwed up if you ask me...

35 posted on 08/21/2011 1:53:39 AM PDT by sinsofsolarempirefan
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To: sinsofsolarempirefan
I would think most legitimate self-defense scenarios are apparent from the start, and wouldn't indicate a murder. Manslaughter possibly, but that would require an investigation to determine the facts.

Obviously, Americans are more comfortable with the concept of justifiable homicide than Britons.

The US Justice system seems to have a rather dubious policy of making being arrested part of the punishment by throwing you in with other criminals and then forcing you to declare the fact that you were arrested to future employers etc even if you haven't been convicted or accepted a caution for anything. That is a bit screwed up if you ask me...

On the other hand, the idea that you can be detained without any articulable evidence that a crime has been committed seems screwed up to me. We have the 4th Amendment which protects us from arbitrary arrest.

Arrests are viewed more seriously here because in order to BE arrested, there has to be a serious indication that you've actually broken the law.

36 posted on 08/21/2011 9:50:10 AM PDT by Trailerpark Badass
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To: marktwain; Trailerpark Badass; sinsofsolarempirefan

On the question of the distinction between arrest and charge, it’s worth noting that the British practice in this area has changed since the quite recent (1986) introduction of the Crown Prosecution Service, a body independent from the police which is responsible for bringing prosecutions in all but the most minor offences. Before that time prosecutions were brought by the police themselves, who were both the investigating and the prosecuting authority. I mention this bit of history because, as I remember it, the U.S. prosecuting model was consiously used in devising the role of the CPS. One of the consequences is that an arrest has less significance than it did formerly.


37 posted on 08/21/2011 9:57:52 AM PDT by Winniesboy
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To: Winniesboy

Interesting. Thanks for that info.


38 posted on 08/21/2011 11:56:42 AM PDT by Trailerpark Badass
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To: the scotsman

http://www.freerepublic.com/focus/f-news/2766020/posts

Free Republic magazine

Malcolm’s moment (UK)
powerlineblog.com ^ | 18 August, 2011 | Scott Johnson, Joyce Lee Malcolm
Posted on 19 August 2011 14:11:36 GMT+01:00 by marktwain
5 posted on 19 August 2011 17:39:19 GMT+01:00 by the scotsman

I have read the comments by Professor Joyce Malcolm “To Keep and Bear Arms: The Origins of an Anglo-American Right” published 1996, “The soft-on-crime roots of British disorder” Wall Street Journal newspaper of 2011, “The English riots: How British law fosters disorder” http://www.powerlineblog.com blog of 2011

And I have read the comments by “the scotsman” who states that subjects of the crown have not had the right to possess and use firearms for self-defense since at least 1946, and backs this up with the statement “I have experience of the actual (Scottish and English) legal systems, having been both a victim and a particpant (court clerk in both Scotland and England AND a civilian worker for the police in Glasgow and the Criminal Injuries Compensation Authority, a job which entailed dealing with the courts, the police and the victim and their families).”

“the scotsman”, whoever he is, is a liar.

The following are the exact words that hundreds of United Kingdom Home Office Metropolitan Police police officers had to say every single day to police sergeants as firearms were issued to them from the years 1966 to 1996. Maybe they still do in 2011. The Metropolitan Police is the only police force that comes directly under the control of the Home Secretary. The numbers fluctuate over the years, but the Metropolitan Police usually has 20% to 25% of all the affirmed police officers in England and Wales.

CONFIDENTIAL
FOR POLICE EYES ONLY

METROPOLITAN POLICE

GENERAL ORDERS AND REGULATIONS
made by the Commissioner of Police of the Metropolis with the
approbation of the Secretary of State for the Home Department.

PRINTED BY HOBBS THE PRINTERS LIMITED, SOUTHAMPTON
1969

GENERAL CONTENTS

PART 1 - ADMINISTRATION

Section 6. SERVICE REGULATIONS, ETC.

SEC. 6 - SERVICE REGULATIONS, ETC.
Firearms for use of police Paras. 19-34
Operational use Paras. 19

SERVICE REGULATIONS, ETC. - SEC. 6

FIREARMS FOR USE OF POLICE

Use

Operational use of firearms.

19. EVERY POLICE OFFICER TO WHOM A WEAPON IS ISSUED MUST BE STRICTLY WARNED THAT IT IS TO BE USED ONLY IN CASES OF ABSOLUTE NECESSITY, e.g., IF HE, OR THE PERSON HE IS PROTECTING, IS ATTACKED BY A PERSON WITH A FIREARM OR OTHER DEADLY WEAPON AND HE CANNOT OTHERWISE REASONABLY PROTECT HIMSELF OR GIVE PROTECTION, WHEN HE (AS WELL AS A PRIVATE PERSON) MAY RESORT TO A FIREARM AS A MEANS OF DEFENCE.

(Reprinted: October, 1977) (Set 10/77) 6/5

I have spoken to a Metropolitan Police public firearms police inspector that served from 1966 to 1996, and he confirms that it was well known that subjects of the crown had the absolute right to possess and use firearms for self-defence and hundreds of Metropolitan Police police officers had to verbally state this every day in order to obtain firearms when on duty, as shown above.

However he says that he, like every other public firearms police inspector, had confidential instructions from both the Metropolitan Police Commissioner’s Office and the United Kingdom Home Office. Both instructions stated that public firearms inspectors were under no circumstances ever to discuss whether or not subjects of the crown had the right to either possess or use firearms for self-defence. Furthermore, if any application to the Commissioner’s Office by a member of the public for a firearms certificate for self-defence was received, then full details of both applicant and circumstances were to be obtained, in addition to a careful interview of the applicant by the pubic firearms inspector, before forwarding the firearms certificate application to the Commissioner’s Office for approval. There every such application would be refused by the Commissioner’s Office.

Both sets of instructions also reminded the public firearms inspector, that any firearms certificate applicant that was refused a firearms certificate for any reason, had the right under the Firearms Act 1937 and Firearms Act 1968 to appeal the refusal to the justices of the peace at the quarter sessions, and when the quarter sessions were replaced by the crown court in the 1970s, to appeal the refusal to a recorder or justice at the crown court. Therefore a public firearms inspector had to obtain as much evidence as possible for the refusal in the case of such an appeal against the Metropolitan Police Commissioner.

The Metropolitan Police public firearms inspector I spoke to, told me that he had never heard of any member of the public making an appeal to a judge upon the refusal of the grant of a firearms certificate for self-defence.

I guess if the England public allow the Metropolitan Police Commissioner and the United Kingdom Home Secretary to break the law, then the Metropolitan Police Commissioner and United Kingdom Home Secretary will break the law.


39 posted on 08/21/2011 6:03:52 PM PDT by victoriacross
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To: victoriacross

Firstly, the British people are not subjects of the crown and have not been since 1981 and the British Nationality Act. The British people are citizens.

Secondly, I referred to my personal experience clearly in a general term, about Ms Malcolm’s lack of experience of the British legal systems not specifically on the firearm issue. You have distorted my point.

Thirdly, again you either are not reading my posts correctly or are distorting them. Because my references to 1946 are about CIVILIAN British ownership of firearms, not the police, whose rights to arms are of course different.


40 posted on 08/22/2011 3:52:26 AM PDT by the scotsman (I)
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To: the scotsman

“the scotsman”,

40 posted on 22 August 2011 11:52:26 GMT+01:00 by the scotsman

If you can’t read english then you should stop posting on blogs that use the english language.

“Thirdly, again you either are not reading my posts correctly or are distorting them. Because my references to 1946 are about CIVILIAN British ownership of firearms, not the police, whose rights to arms are of course different.”
“the scotsman”

SERVICE REGULATIONS, ETC. - SEC. 6

FIREARMS FOR USE OF POLICE

Use

Operational use of firearms.

19. EVERY POLICE OFFICER TO WHOM A WEAPON IS ISSUED MUST BE STRICTLY WARNED THAT IT IS TO BE USED ONLY IN CASES OF ABSOLUTE NECESSITY, e.g., IF HE, OR THE PERSON HE IS PROTECTING, IS ATTACKED BY A PERSON WITH A FIREARM OR OTHER DEADLY WEAPON AND HE CANNOT OTHERWISE REASONABLY PROTECT HIMSELF OR GIVE PROTECTION, WHEN HE (AS WELL AS A PRIVATE PERSON) MAY RESORT TO A FIREARM AS A MEANS OF DEFENCE.

(Reprinted: October, 1977) (Set 10/77) 6/5

As anyone can clearly see from the above, hundreds of times every day from at least 1966 to 1996, if not from 1829 to 2011, Metropolitan Police police officers verbally state they are a subject of the crown, or a citizen, or a member of the public, etc., upon the issuance of firearms to them so that they can carry out their duties and responsibilities as either a private person or police officer.

The above Metropolitan Police General Order makes it clear that no police officer has the right to carry or use a firearm; only a subject of the crown has the right to carry and use a firearm, or “citizen” as you say. That means that at least as far as a police officer’s carrying of firearms and a police officer’s use of firearms is concerned, his fundamental authority for such carrying and use rests on the fact that he is a subject of the crown: not the fact that he is a police officer.


41 posted on 08/22/2011 7:38:07 AM PDT by victoriacross
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