Defending the home 

By Dave Kopel

MSNBC.com, Dec. 7, 2004

Thanks to strict criminal laws, working conditions in Great Britain are the safest in the Western world—that is, if your profession is burglary.  On the other hand, if you’re a law-abiding citizen quietly staying at home, you’re at much greater risk in the nearly gun-free United Kingdom, than in the gun-happy United States of America.

In late October, teacher Robert Symonds, who lived in the London suburb of Putney, was stabbed to death in his home by a burglar.  Last weekin Halifax (near Manchester), 71-year-old priest Father Ingwell was stabbed several times by a burglar.  The same week, burglars in the fancy London neighborhood of Chelsea stabbed banker John Monckton to death.  Terrifying home invasion burglaries are not rare events in England.  Overall, Great Britain has a higher violent crime rate than the United States, and a higher burglary rate.  Significantly, only about one-eighth of American burglaries take place while the victim is home, whereas over half of all British burglaries do.

One reason that British burglars are so much bolder than their American cousins is that only about 4% of British homes legally possess a gun, whereas about half of American homes do.  British police administrators require guns at home to be stored unloaded in a safe, and that ammunition be in a separate safe.  No American jurisdiction has such extreme “safe storage” requirements.  As a result, an American burglar who breaks into an occupied home faces a significant risk of getting shot.

As I detailed in an article in the Arizona Law Review, when an American burglar strikes at an occupied residence, his chance of being shot is about equal to his chance of being sent to prison.  According to a study by the federal Centers for Disease Control and Prevention, there are about half a million incidents every year in which an American burglar is scared away by a victim with a firearm.

Putting aside the issue of guns, the British homeowners are still at a terrible disadvantage.  For example, if 300 pounds of what the British call a “ yob” (or what Americans call “white trash”) kicks down a woman’s front door, and begins pummeling her with his fists, her only hope might be to fight back with a kitchen knife.  In America, the woman’s use of the knife would be plainly legal.  In Britain, the woman would be presumed to have illegally escalated the confrontation (the yob was just using his fists, and she escalated by using a deadly weapon).  The government could put her on trial for attempted murder, and she would have to prove to the jury that she responded “proportionately” to the attack.

The Daily Telegraphhas been waging a “right to fight back” campaign, which “calls for the public to be given an unqualified right to self defence against intruders in their own homes.”

As a sign that even the police bureaucracy is recognizing the intensity and breadth of the public’s feelings, Metropolitan (London) Police Commissioner, Sir John Stevens now says that British law should be changed so that any use of force, including deadly force, is presumed reasonable and lawful in the home.  The government would bear the burden of proving such force unreasonable in particular cases.  “The message it sends to the would-be attacker is, ‘Do not think you can come into people’s homes and people will not defend themselves with the right type of force that’s necessary.’  At the moment it seems it’s the other way round.” As Police Commissioner in London, Stevens in the highest-ranking police officer in the U.K.

The Conservative Party has also agreed.

Besides reforming the self-defense laws, Parliament ought to reform Great Britain’s gun control laws.  Not a word in British gun control statutes actually makes it illegal for a person to own a shotgun or rifle for protection in the home.  Instead, police administrators have determined, by their administrative fiat, that Britain’s “subjects” may not possess defensive arms, and that sporting arms must be stored in such a way as to make them useless for home protection in an emergency.

The Blair administration could fix the problem tomorrow, by administrative decree.  Alternatively, Parliament could pass a statute affirming that home defense is a “good reason” (the British legal standard) for being granted a gun license.  Parliament (or the Blair administration) could also affirm that guns may be kept loaded in the home, while the homeowner is actually present in the home.

The alternative is to continue Britain’s disastrous current policy, whereby the only people who are safe in the home are violent intruders.

The governing Labour Party, however, has done nothing.  Instead, it has devoted its energies to ramming through Parliament a total prohibition on using hounds to hunt foxes. To evade opposition the upper house (the House of Lords), which was willing to impose additional restrictions but not a complete ban, the Labour government invoked the rarely-used Parliament Act to bypass the House of Lords.

As one high-ranking Labour MP recently admitted, the fox-hunting ban is less about animal welfare than about urban-based Labour’s class warfare on the rural population. Led by the Countryside Alliance, 400,000 Britons rallied in London against the ban in 2002, and massive civil disobedience hunts are planned on February 19, when the prohibition goes into effect.

Meanwhile, the Labour Animal Welfare Society, having outlawed what the British call “hunting” (chasing hounds with foxes) now aims to eliminate what Americans call “hunting” (shooting wild game with guns or bows).  As the LAWS Web site announces, “ Hunting down - shooting to go.

While the hunting ban garnered massive attention, few people noticed the nearly simultaneous action of Parliament enacting the odious Civil Contingencies Act.  As detailed by Spy Blog and White Rose (blogs focusing on civil liberties, especially in the U.K.), the Act authorizes the Prime Minister or the Home Secretary to suspend civil liberties, and rule by decree.  The Act even allows the ruler by decree to override the protections of the Magna Carta, the Habeas Corpus Act, and the English Bill of Rights.

For centuries, the people of Great Britain fought—literally—to defend their precious and traditional rights from monarchs such as Henry III and the wicked James II. Yet now, the great historic rights of Englishmen have been presumptively surrendered by Parliament, and the media have barely noticed.

A bill passed by Parliament cannot become law without the Queen’s Royal Assent. Although the Royal Assent has not been withheld from a bill in Great Britain since 1708, the Royal Assent was withheld in 1937 from Canadian legislation which the Governor-General of Canada (the monarch’s representative in Canada) correctly identified as unconstitutional.

In an ideal world, Queen Elizabeth II would have withheld her assent from the Civil Contingencies Act, because it is a direct assault on fundamental civil liberties and democratic government.  And she would also have refused to assent to the Hunting Act, because it is a mean-spirited assault on the traditional freedoms of rural England.  At the least, the Queen and members of the Royal Family could have used their prestige to raise public consciousness about dangers to Great Britain’s ancient liberties.

As the Queen has been derelict, so has the Parliament.  Although Parliament is theoretically sovereign, over the last few decades the Parliament has become a supine rubber stamp for the Prime Minister and a small coterie of ruling party leaders.  No longer does Parliament resist the demands of Whitehall (the main office of the permanent bureaucracy) for more and more infringements on the rights of Englishmen.

Since the days of Winston Churchill, Americans and Britons have stood shoulder-to-shoulder defending freedom around the world.  Like the many Americans who cherish our heritage of Anglo-American liberty, I wish the British Parliament, the British Royal Family, and especially the British public were more vigilant about defending what Lord Scarman called “ the pearl of great price,” the traditional rights which for centuries made England one of the world’s greatest exemplars of freedom and self-government.  Restoring the natural human right to home defense would be a good first step, but there will be a very long way to go after that.


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