a citizen’s journal by Thomas Nephew

Breaking Slippery Slope Review News

Posted by Thomas Nephew on October 25th, 2002

In an earlier (10/18/2002) post, I promised a report on the Kopel and Olson article on gun control (“All the way down the slippery slope“) that Glenn Reynolds recommended. I’ve printed it, and have begun reading it on the Metro on the way back from work. I’m going to use this blog to jot down a thought or two now and then as I read through the piece.

As the title makes clear, the primary theme of the Kopel and Olson essay is that any government control of guns implies the potential for full government control and even elimination of private gun ownership. An early passage (in IV.A: Early 20th Century: The First Step), describes the “first step” towards the elimination of gun ownership rights in England as the Pistols Act of 1903, which required persons to purchase a license before they could buy a gun with a short (9 inches or less) barrel. Kopel and Olson write:

While the Act was, in the short run, harmless to gun owners, the Act was of considerable long-term importance. By allowing the Act to pass, British gun owners had accepted the proposition that the government could set the terms and conditions for gun ownership by law-abiding subjects. As Frederick Schauer points out, for a government body to decide “X and not Y” means that the government body has implicitly asserted a jurisdiction to decide between X and Y. Hence, to decide “X not Y” is to assert, indirectly, an authority in the future to choose “Y not X.” Thus, for Parliament to choose very mild gun controls versus strict controls was to assert Parliament’s authority to decide the nature of gun control. As this Essay shall discuss in regards to the granting of police authority over gun licensing, establishing the proposition that a government entity has any authority over a subject is an essential, but not sufficient, element for a trip down the slippery slope.*

But labeling the Pistols Act of 1903 as the first such step contradicts evidence the authors have marshaled — but perhaps not recognized — in earlier pages. Following the overthrow of the Stuarts in 1689, the authors show there was a concerted effort to restore the right to bear arms to Englishmen. They fail to note, or perhaps even notice, that not just any Englishmen were included in the warm sunshine of gun ownership:

After much discussion and numerous revisions, the right to arms evolved into a statement that “the Subjects which are protestants may have Arms for their Defense suitable to their Conditions and as allowed by law.” (emphasis added)

The Stuarts and their supporters, needless to say, were Catholic. Thus, even the earliest instance of the right to bear arms was not an unalloyed right, but rather one tempered by if not indeed determined by, shall we say, practical considerations about the safety of the state and the stability of society.

Put even more baldly, the original strong gun ownership right discovered by Kopel and Olson is one enacted by the winning side in a revolution to secure its hold on power and disarm its opponents. Thus, the seeds of gun control were present in the earliest instance of gun rights legislation. As a practical matter, this is unobjectionable, I would say; the first order of business after you’ve won a civil war is to end the shooting and set up rules that keep your side on top.

But at least one rebuttal to Kopel and Olson’s analysis is therefore that a slope that begins in 1689 and ends in 1967** is considerably less slippery than one that begins in 1903 and ends in 1967. The more important point is that Kopel and Olson demonstrate — one imagines almost against their own will — that English common law has always featured both gun control (sometimes in an unfamiliar religion-based form) and gun ownership rights, with both waxing and waning over time. Even a strong reaffirmation and strengthening of gun ownership rights like that in 1689, apparently one of the most notable such instances in English history, was part of a system of state control over its adversaries and their arms. This, of course, speaks to and derives from the imperative need (or even right?) of the community to determine the distribution and nature of lethal power within its confines — that imperative so nobly yet circumspectly addressed in the Second Amendment.

More as this story develops!

*The article is extensively footnoted, and this quote alone featured three of them; here and elsewhere, I’m removing these numbers for clarity in this post. Please see the original text to see these footnotes and the supporting documentation they refer to.
**Or whenever, sometime in the late 20th century; I haven’t gotten that far yet. Reading ahead, as far as I can tell, Kopel and Olson see the Criminal Justice Act of 1967 as the final important nail in the coffin of English gun ownership rights.

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