The right to self-defense

Ace just put up a post trying to help Jackie Danicki find the two thugs who assaulted her on the London Tube. Amid the sympathy generated for Ms. Danicki, the incident stimulated a secondary discussion concerning the lack of a right of self-defense in the UK. Since I was going on about rights the other day, I figured this would be a good time to revisit the subject of the right to self-defense.

Most of my quotes will come from an article by the Cato Insitute entitled “Self Defense: An Endangered Right.” I encourage you to read the whole article.

Here are the basic rules for self-defense in Britain:

You are permitted to protect yourself with a briefcase, a handbag, or keys. You should shout “Call the Police” rather than “Help.” Bystanders are not to help. They have been taught to leave such matters to the professionals. If you manage to knock your attacker down, you must not hit him again or you risk being charged with assault.

That’s it. Of course the “professionals” are rarely available, nor are they particularly capable, so the admonition to shout “Call the Police” rather than “Help” is completely useless.

But this is an amazing limitation on what most conservatives would agree is an undeniable human right. 240 years ago the conservative stance was encapsulated by William Blackstone:

William Blackstone, whose Commentaries on the Laws of England was published 10 years before the American Revolution and was an immediate bestseller on both sides of the Atlantic, identified three “great and primary rights” of individuals: personal security, personal liberty, and private property. He put personal security first.

For Blackstone and generations of common lawyers, the right to personal security was not the expectation that government would protect everyone—that was then, and remains today, impracticable. It was the right of the individual to protect himself, with force if necessary:

[I]f the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force. . . . For the law, in this case, respects the passions of the human mind; and . . . makes it lawful in him to do himself that immediate justice, to which he is prompted by nature. . . . It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say to what wanton lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another.

Self-defense was universally regarded as the primary law of nature, so fundamental that England’s great jurist insisted, “It is not, neither can it be in fact, taken away by the law of society.”

Blackstone makes a lot of sense, much more than the absurd legal framework of the UK. And as usual, when the law becomes absurd, the results become absurd:

A homeowner who discovered two robbers in his home held them with a toy gun while he telephoned the police. When the police arrived they arrested the two men, and also the homeowner, who was charged with putting someone in fear with a toy gun. An elderly woman who scared off a gang of youths by firing a cap pistol was charged with the same offense.

How did it come to this? How were the British lulled into giving up what Americans regard as an essential right? The Cato Institute identifies these steps in the process:

• 1920: Law introduced requiring certification every 3 years of necessity of owning a gun
• 1937: “Necessity” redefined to discourage home or personal protection
• 1953: Prevention of Crime Act passed – outlaws carrying any article for an “offensive purpose.”
• 1964: “Necessity” redefined to exclude home or personal protection
• 1967: Criminal law revised to allow only “reasonable” force in self-defense. Protection of property is considered unreasonable.

Self-Defense in the United States: In the past year, 15 states have expanded self-defense, or “stand your ground” laws, including Alabama, Michigan, Indiana, Mississippi, South Dakota, Wyoming, Florida, Kentucky, Arkansas, Oklahoma, Louisiana, Arizona and Georgia. These laws allow the use of deadly force against intruders in your home. The passage of these laws is a clear indication from the electorate that self-defense is both a right and a priority.

That doesn’t mean, of course, that the citizenry’s right to carry arms is secure. After all, we have the UN creeping about…

The United Nations pipes up. The UN commissioned a report which was published this past July. The report, Prevention of human rights violations committed with small arms and light weapons, tries to show that the right to self-defense does not encompass the right to bear arms. The author’s argument proceeds in two steps:

1. a review of international law and legal precedents does not show that the right of self-defense extends to possession of fire arms
2. firearms are special because of the damage they inflict
3. the states have an obligation to protect life, which supercedes the individual’s right to maximize their self-defense capabilities

In her words:

The principle of self-defence has an important place in international human rights law, but does not provide an independent, supervening right to small arms possession, nor does it ameliorate the duty of States to use due diligence in regulating civilian possession.
…[Many sections pass]…
The individual’s desire to carry a gun as self-defence must be considered in the broader context of the State’s obligation to maximize protection of human rights. The State has an obligation under international law to promote law enforcement and to suppress private violence by creating a legal and social system in which the general duty is to avoid the use of force where non-violent means of self-protection are reasonably available.

Now, this argument seems laughable on many levels, and if you’re not laughing as hard as I am, I’ll be glad to go through it in more detail in a later post. Or you can read what the Independence Institute has to say. Unfortunately the UN didn’t laugh at all, and the Sub-Committee on the Promotion and Protection of Human Rights endorsed the report in August. They approved 15 principles, 10 for law enforcement officers, 2 relating to international law, and 3 involving private citizens. Here are the 2 most interesting principles for citizens:

10. In order to ensure the protection of human rights by preventing small arms violence by private actors, Governments shall enact licensing requirements to prevent possession of arms by persons who are at risk of misusing them. Possession of small arms shall be authorized for specific purposes only; small arms shall be used strictly for the purpose for which they are authorized. Before issuing a licence Governments shall require training in proper use of small arms, and shall take into consideration, at a minimum, the following factors: age, mental fitness, requested purpose, prior criminal record or record of misuse, and prior acts of domestic violence. Governments shall require periodic renewal of licences.

13. With the cooperation of the international community, Governments shall develop and implement effective disarmament, demobilization and reintegration programmes, including the effective collection, control, storage and destruction of small arms, particularly in postconflict situations. Governments should take steps to encourage voluntary disarmament. Governments should implement public awareness and confidence building programmes, in cooperation with civil society and nongovernmental organizations, to prevent a return to armed violence and to encourage alternative forms of dispute resolution. Governments should incorporate a gender perspective in their peacekeeping and public awareness efforts to ensure that the special needs and human rights of women and children are met, especially in postconflict situations.

Does that sound a little bit like the UK?