Paul@paulbirch.net and http://www.paulbirch.net
I've just been reading Guns, Crime and Freedom, by Wayne LaPierre. Heaven preserve us from our friends! Although most of what this NRA chief executive officer and chief national spokesman says in defence of gun ownership is sound enough, he gives far too much ground to the opposition and ends up proposing hypocritical "get tough" measures that would destroy many of the very liberties that the right to bear arms is meant to protect.
The Founding Fathers, as LaPierre ably demonstrates, believed in the individual ownership of weapons for self-defence (especially against the government, though this he fails to emphasise). "The Bill of Rights does not grant rights to the people . . . it is a list of inalienable rights endowed in man by his Creator. . ." (p21). Indeed. He might also have added that the American Bill of Rights descends from English common law and the English Bill of Rights 1688 (which itself restates the common law right to bear arms and which has never been repealed). Contrary to his assertion in Chapter 18, it is just as unlawful for the British government to ban firearms as for the American.
"The second amendment means what it says. . ." (p12). How then can LaPierre, without any apparent qualms, continue, "In 1993, the NRA helped draft a bill. . . prohibiting the possession of handguns by juveniles except those under adult supervision engaged in hunting [or] target shooting, or receiving instruction in the shooting sports" (pp74-75)? How dare LaPierre deny children their constitutional and God-given right of self-defence! Would the Founding Fathers have done so? Most assuredly not! They might, perhaps, have argued that boys under the age of 13 should be able to purchase firearms only with the permission of their parents (no deliberate exclusion of the opposite sex it probably wouldn't have crossed their minds that girls might like weapons too). And this is the most that we should argue too.
LaPierre's treatment of statistics is not always greatly superior to that which he condemns in his opponents. For example, the accidental death statistics on page 63 may compare "apples to apples", but give no indication of the relative number of apple trees. How many motor vehicles or drivers are there? How many firearms and gun owners are there?
But where LaPierre's colours really show is in Chapter 21 "Getting Tough". His "elements for an effective criminal justice system" (why not "a just legal system"?) violate numerous constitutional provisions and fundamental principles of justice; public concern over crime is made an excuse to introduce lawless measures paving the way towards a totalitarian state. I do not object to his authoritarianism or conservatism, but to his contempt for the rule of law. By all means get tough on crime: let the felon be thrown into dungeon rank, let the murderer be hanged and the robber scourged; but do not by one jot or tittle depart from the principles of even justice and the common law. . . Sorry, I'm getting carried away!
#1: ". . . pretrial detention of dangerous defendants". And who is to be given the authority to decide that an unconvicted defendant is "dangerous" and must be locked up? In justice we should rather say: no bail for a felony indictment whoever the defendant is. But then we must also insist that prisoners on remand (presumed innocent) be treated with all courtesy (like guests in a hotel); and that the delay before trial be strictly limited to no more than (say) thirty days; and that if they be found not guilty they should be fully compensated for the time they have been incarcerated (for to imprison an innocent man is an offence against him in justice, irrespective of who does the imprisoning, or why). LaPierre gives no indication of understanding this.
#2: "Mandatory prison sentences . . . for . . .offenders . . .". Most of this item is unobjectionable (assuming that prison is the chosen form of retribution) but note again the emphasis on offenders not offences. Whether prison is the best punishment is debatable (I would say not, since it is costly and wasteful), but LaPierre's "incontestable" consequence (that persons in jail can't create additional victims) is in fact false: the public who have to pay for the prison are ongoing victims; inmates commit numerous additional offences inside; and most of all, when released they simply catch up on the crimes they would otherwise have committed over the longer period. This is not to say that prison does not work it does! but the deterrent effect of prison is a separate phenomenon.
#3: "Sentencing . . . for actual conduct . . .". This seems to mean (I can hardly believe LaPierre so corrupt as to want this) that if a defendant has been found guilty, beyond reasonable doubt, of spitting on the sidewalk, he can then be sentenced to life imprisonment for armed robbery (a prima facie case having been made out that this is what he was actually engaged on at the time) even though he has not been proved guilty, beyond reasonable doubt, of the robbery (and may not even have been charged with it)!
#4: "Life . . . for third conviction for . . . sexual assault . . . child abuse . . .". Leaving aside the dubious merits of crude and disproportionate "3 strikes and you're out" statutes, this panders to the current paranoia about sexual offences and child abuse, only a tiny minority of such offences being serious enough to justify any such approach. Shall we perhaps put a boy away for life for kissing a girl in his class three times (and let's say he's 18 and she 17, since that makes it both sexual harassment and child abuse!)? Of course, I'm being absurd but bad laws are invariably used absurdly.
#5: "Death penalty for first degree murder . . .". At last, something I can agree with! But what's this? "State laws should require the jury to impose death . . .". No! No! No! In all common-law countries, trial by jury is (and has been for a thousand years) the cornerstone of liberty; its whole strength is the right and duty of every juryman to render his verdict according to his own conscience, irrespective of any instruction, threat, statute, edict or demand. If the judge is wrong, so much the worse for the judge. If the law (or what purports to be law) is wrong, so much the worse for the law for the true law, the common law, must always be just, and be seen to be just. Drat, I'm getting flowery again.
#6: "Truth-in-sentencing . . . to serve no less than 85% of sentence . . .". Why does LaPierre keep shooting himself in the foot? Yes, of course sentences should mean what they say. Exactly what they say. Criminals should serve precisely 100% of their sentences; not 30%, not 50%, not 85%, but every last weary day! This is simple justice. Parole is not justice it's social engineering. Criminals are sent to jail to pay for a crime they have already committed; it is irrelevant whether they repent or reform in jail the debt must still be paid off and the punishment completed.
#7: "Prisons [no] better than poverty . . . all prisoners to work". I'd agree with this, so long as it is understood to apply to convicted prisoners only. There is even an argument that prisons should be made as horrible as possible, to maximise the deterrent effect per unit cost (the just sentence is then correspondingly shorter).
#8: "Mandatory drug testing for convict[s] and . . . on probation". Provided that such testing is limited to the period under sentence, and is explicitly provided by the trial judge as part of that sentence, there seems no reason why this should be considered unjust (whether is would do any actual good is another matter).
#9: "Computerised records . . .". Ow! A just legal system will indeed use accurate records to assist it in delivering justice; but in the present state of affairs I cannot but conclude that any growth in the computerisation of records will inevitably be accompanied by widespread and ever-greater abuse.
#10: "Victim and witness protection programs". Well, yes, but these are no substitute for honest justice and strict enforcement. Nor should they allow the making of anonymous accusations (which would seriously jeopardise the rights of the accused).
#11: "Effective juvenile justice system . . .". LaPierre provides a hodgepodge of ideas to please everyone, some "trendy", some "tough", in a muddled and essentially unprincipled approach: "early intervention strategies for at risk youth . . . emphasize discipline . . .through programs that . . . include informal and formal restitution, arbitration, mandatory community and public service, and boot camps . . . juvenile offenders . . . treated as adults for serious offenses . . .". He fails to address the principle that what matters is the offence, not the age of the offender, nor yet the motive for the offence: the law is not there to dispense moral condemnation, but to ensure that every offence is fully paid for (insofar as is practicable). If it is necessary to consider a child as less than fully responsible it will if anything be the most serious offences for which it is held least accountable (since we learn responsibility in small matters first); there is no justification whatsoever for relieving juveniles of the burden of making full restitution for their minor offences. Nuts, I'm preaching again.
#12: "Enforceable rights for victims . . .". Although much of what LaPierre writes is true enough, his approach is again populist, not principled. A crucial omission is the word "alleged": the plaintiff may or may not be a victim; the defendant may or may not be an offender; that is what the court is to determine; it must not prejudge. Often it is the defendant who is the victim victim of a false and malicious accusation. It is essential that justice be even-handed; the rights of accused and accuser, offended and offender, are simply different faces of the same rights. Let's examine LaPierre's subpoints in more detail:
(a) The right to justice and due process. Of course.
(b) The right to be treated with fairness, respect, privacy and dignity, and to be free from intimidation, harassment and abuse throughout the criminal justice process. Reasonable enough; this is how everyone should be treated under law, including criminals. Note that this must not be taken as granting immunity from cross-examination or the stress of testifying in open court; any such bias in favour of the alleged victim would be grossly prejudicial to the rights of the accused.
(c) The right to be present at all proceedings where the defendant has the right to be present. I assume this is not meant to relate to private consultations between defendant and counsel; otherwise, fine, if we are willing to accept a similar right of the defendant to be present whenever the plaintiff has a right to be present.
(d) The right to be heard at any proceeding . . . and
(e) The right to be informed of all proceedings . . . Again fine, so long as it cuts both ways. Remember, we don't know who the victim is until after the hearing (and not always then).
(f) The right to a speedy trial or disposition and . . . final conclusion . . . [after conviction and sentence]. Fine, apart from the presumption of guilt in LaPierre's phraseology. Keep in mind the saw, "Justice delayed is justice denied". But this cannot override the right of appeal. It simply means that appeals must be held quickly.
(g) The right to full restitution. This is the key to all justice under common law and it is to LaPierre's credit that he has brought it up, however wishy-washily. A just court, if it claims sole right to enforcement, must make immediate and full payment of restitution to any plaintiff, irrespective of any subsequent court proceedings; the offender's debt then being owed to the court, it is for the court to recover that amount from the offender and for the offender to make good the debt. If a plaintiff makes a false claim, that is of course an offence in itself, for which the court may proceed against him.
(h) The right to confer with the prosecution. This is a bit muddled; if full restitution has already been made, the plaintiff is no longer a victim (the court is) and thus no longer a direct party to the action; still, such a conference is at the very least a due courtesy. And, once again: someone who complains is not necessarily a victim.
(i) The right to be informed of each of the rights established for victims. Courts should naturally inform all those involved in a case of the relevant rights and procedures, without prejudging the issues.
#13: "HIV testing for those arrested for sexual offences . . .". There is nothing in law or principle to make HIV any different from other diseases (such as leprosy, syphilis or influenza); to single out this disease is to appeal to the irrational fears of a public bombarded with media propaganda and exaggeration. It does LaPierre no credit. This is not to say that compulsory HIV testing after conviction may not have its place; but for an accuser to be given a general right of violating the accused's own person by (repeated!) compulsory testing is unacceptable indeed, outrageous. It would also violate the fifth amendment (against self-incrimination). Where now the Bill of Rights?
#14: "Adequate prison capacity . . .". Nothing very startling here though I'd still say that if offenders were required to make full restitution in cash (and on persistent default were flogged until they paid up), there'd be little need for expensive prisons and "correctional facilities", especially if we made a practice of executing murderers who couldn't come up with the weregeld (or to be more precise, couldn't keep up with servicing the debt). But I'm wandering off on my own again.
#15: "No release pending appeal . . .". This is an obvious enough suggestion or would be if LaPierre didn't ruin it by claiming that "defendants should be required to waive their appeal rights as part of a guilty plea". If all this means is that you can't appeal a decision you explicitly agreed to, that's fair enough; but a defendant might also appeal on the grounds that he'd been lied to about what a guilty plea would mean (no jail, say, or a light sentence); or even that he'd been bullied or brainwashed into it. Such appeals are usually phoney, but we've no business denying defendants the right to make them (if they are prepared to bear the costs when and if they fail).
#16: "No unsupervised furlough . . .". There's no necessity to deny leave to all "violent or repeat offenders", but it should only be permitted when the trial judge has expressly provided for it in his original sentencing. Again, sentences should mean exactly what they say.
#17: "Progressive community punishment programs . . .". Socialist drivel anything with the word "community" in it is bound to be socialist drivel! When LaPierre talks about "mandatory payment of restitution to victims" I am in full agreement, but when he insists on "community service and work requirements to discharge fines" and "offenders [paying] their debt to society through community services" along with "effective supervision, including electronic monitoring" and "mandatory revocation of release for violations. . ." the spectre of social engineering raises its ugly head again. If full restitution is to be made through a fine, that is it. The payment of that money is all that justice may demand. How the offender raises that money is his own affair (even if it is by crime, though since he can expect to have to pay for these further offences in their turn this would not be a particularly rational approach). He has no further "debt to society" to discharge; he may not in fairness be punished twice for the same offence.
#18: "Protection against . . . liability for . . . self-defense . . .". LaPierre seems to be suggesting that so long as a citizen claims to have acted in self-defence he must not be prosecuted. This is the same fallacy as in #12. We cannot know whether the citizen has acted lawfully until the matter has been tested in a court of law (perhaps it was deliberate murder dressed up to look like self-defence). If you kill or seriously injure someone you really must expect to be prosecuted; at the very least there needs to be an inquest or hearing to determine whether an offence has been committed; otherwise we fail to do justice by your victim, who for all we know might have been blameless. Which is not to say that law-abiding citizens ought ever to find themselves waiting a year or more for the trial that will clear them (as happens all too frequently today).
#19: "Laws to prevent criminals from collecting damages from a private citizen for injuries . . .". The same fallacy. That said injuries occurred during the commission of a crime will be a complete defence; but without a court judgement, based on evidence, we won't know if that's what happened. "Such lawsuits . . . must be prohibited," says LaPierre. It is a fundamental principle of justice that anyone is entitled to sue anybody over anything at all.
#20: "Effective laws to deter and punish stalking". More pandering. There are already laws have been from time immemorial against murder and assault and threats and trespass. Enforce them, or give people back the means of self-defence, and there will be no need for further statutes. For what is this "stalking", that cannot be subsumed under these common law offences? No more than passing along the public highway, in the same direction as somebody else, as every citizen has an absolute right to do! The potential for abuse of these stalking laws is enormous.
Well now, I've jabbered on for much longer than I intended, without even touching on the good stuff: the chapters on Waco and Ruby Ridge, on media bias, on the death penalty, on international comparisons. So should you read this book? Yes, I think so. Treat it as a middle-of-the-road compromise by a not-too-principled statist conservative with socialist and authoritarian leanings and you'll pick up a lot. As for justice and the right of all men to bear whatever arms they choose for any honest purpose, you must look elsewhere.
© Paul Birch, 1st Sept. 1997.
Permission is hereby granted to repost reproduce or distribute this article in full or in part on condition that full acknowledgment is made to the author.