Ed: Continued from Part I published here and Part II published here .

The Right to Own and Carry Weapons

The right to self-defence is intimately connected with the right to own and carry weapons. If a man or woman cannot keep a weapon, in many circumstances he or she will be effectively defenceless. The problem in Britain is that the possession of any weapon by the private individual is being made increasingly difficult, ostensibly on the grounds of public safety, but in reality from of a desire by those with political power to control the general population. This elite behaviour is merely conforming to the historical norm.

The desire to restrict the possession of weapons has always come from those who wished not only to monopolise power but to do so on their own terms. When the crossbow was invented, the medieval nobility attempted to ban it because it reduced the effectiveness of the armoured and mounted knight. Failing in that, they attempted to restrict, with some success, its ownership to people they could control. The Samurai in Japan enforced ruthlessly their rule that only Samurai should carry swords. When the demobbed conscripts of British Army returned to Britain after the First World War, the British government passed the first serious laws regulating gun ownership not because they feared that the British would begin to murder one another in great numbers but because they feared a Red revolution.

As things stand in Britain, legal gun ownership has become so onerous that many long-time licence holders have given up. The effort in obtaining a licence and in maintaining it is considerable, because of both the Draconian storage conditions required by the police and their eagerness to engineer the revocation and denial of licences. Even if you legally own a gun, woe betide you if you are spotted openly carrying it in a public place. Assuming you are not gunned down by over-excited policemen, you will not merely have your licence revoked but probably end up in court as well.

As for other weapons, if the police want to pick you up for possessing an offensive weapon there is a fair chance they can do so even if you do not mean to carry one. Forget about knives or coshes, which are complete no-nos, you are conceivably committing an offence if you have an aerosol of hairspray about your person or a hammer, for the 1953 Prevention of Crime Act creates a general offence of possessing an offensive weapon in a public place,  an offensive weapon being anything from a gun to a piece of wood or stone or a kitchen knife which is made, adapted or intended to cause physical injury to a person.

Is There an Historical Basis for Private Weapon Ownership in England?

This is an impossible question to answer categorically. It is undeniably true that weapons were held widely by private individuals. Feudal military obligation was in fact built on the private provision not merely of men but of arms and equipment. In late medieval times, statutes were enacted to encourage longbow practice. The Spanish Armada that attempted to invade England in 1588 was repulsed by a mixed English fleet of private and Royal ships.

Yet although weapons were commonly held by private individuals for many centuries, the right of the individual to hold weapons, especially guns, was far from being absolute or accepted by authority. The Bill of Rights passed after William of Orange came to the throne in 1689 stated:

“By causing several good subjects, being Protestants, to be disarmed, at the same time when papists were both armed and employed, contrary to law.” (Clause 6 of the Bill of Rights 1690.)

“That the subjects which are Protestants, may have arms for their defence suitable to their conditions , and as allowed by law.” (Clause 7 of the Bill of Rights 1690.)

There are four points to note. First, Catholics were not thought to have the right to have arms. Second, the clear implication is that Protestants were to be armed to defend themselves against Catholics. Third, the very fact that such a clause was included means that the right to weapons was not so much part of English life that it was taken for granted. Fourth, it uses the phrase “suitable to their conditions”. This must mean that the right to weapons was limited and not limited merely in the sense that a private individual might not have a cannon but might have a musket.

It is also illuminating that when the US Bill of Rights was created a century later it ran:

“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” (American Constitution Second Amendment.)

The American Bill of Rights was based firmly on English tradition, the founding fathers of the USA considering themselves to be preserving English liberty when it had fallen into corruption in England. Yet they did not say that a man has the right to bear and keep arms full stop. They say he has it because of the need to maintain a militia.

Nonetheless, the 1690 Bill of Rights does grant right to bear arms of some sort. Leaving aside the question of what arms are permitted, does the Bill of Rights have any force today? The problem for those who would say it has is that the Bill of Rights is simply an Act of Parliament. It has no special constitutional status, any more than does any other British law with constitutional implications. As such, it is difficult to see how it cannot have been amended by the subsequent passing of laws restricting the ownership of weapons.

It is true that none of those laws specifically nullifies the Bill of Rights, but it is a long established practice in English law that the passing of a new law which contradicts a previous law is treated a automatically nullifying the earlier law.Whether this practice is entirely sound in law is perhaps debatable, but I cannot imagine the Lords overturning the de facto principle retrospectively simply because of the immense implications of doing so if the illegitimacy of the practice was allowed – all past laws not explicitly repealed by later Act would have to be considered ‘live’ where they clashed with later Acts.

The result would be legal chaos. The best that could be reasonably expected from Government is an Act making any future legislation require the specific repeal of Acts or clauses where a fresh Act contradicts the original Act.

 

Ed: The final Part IV will be published here in the coming days.

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