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Words are powerful - Thoughts shape - Ideas have consequences

Howard Nemerov

Author, Freelance Writer
Posted May 30, 2005

Does Gun Control Lead to Further Erosion of Civil Rights?

Editor's Note: The following is an excerpt from Howard Nemerov's forthcoming book, Gun Control: Fear or Fact.

Gun rights supporters claim that gun control contains a “slippery slope” that gradually but inexorably results in erosion of civil rights. They point to examples like USSR, China, and Nazi Germany as examples where disarmament proceeded government-sponsored genocide against the people living in those countries.  

In early 2005, the British government enacted The Criminal Justice Act of 2003, which allows a previously acquitted person to be retried if “new and compelling” evidence is produced. Citing the unresolved sexual assault/murder of a young woman in 1989, the government claimed the new law will enable them to retry the accused “if evidence such as DNA material, new witnesses or a confession came to light.” A Home Office spokesperson said, “It is important the public should have full confidence in the ability of the criminal justice system to deliver justice.”[1]  

The Act also allows hearsay evidence, including situations where the witness is unavailable to appear in court or has fears about appearing.[2] Thus, the accuser is no longer required to face the accused, and the defense attorney has no opportunity to cross-examine and perhaps create reasonable doubt as to the veracity of the witness’s testimony. 

The Act was apparently the government’s response to claims that the Blair government failed in its campaign promise to crack down on crime. In an article from 2002, the government claimed that part of the problem was an out-of-date criminal justice system: 

Mr. Blair promised the first major overhaul of the British criminal justice system in more than a century in an attempt to balance the rights of defendants with more rights for victims. 

The Blair government also cited delays and inefficiencies in the judiciary and greedy trial lawyers as contributing factors in a breakdown of the criminal justice system.[3] It would seem that the government tacitly admits there are systemic shortcomings that limit in it’s ability to administer justice, but its method of treatment is questionable. Practically speaking, removing double jeopardy eradicates the very motivation necessary for an inefficient system to reform itself, instead placing the emotional and financial onus upon individuals who are hauled into court a second time because of poor investigative work or prosecutorial incompetence. 

As a result of what is happening in Britain, the government of New South Wales in Australia is also considering double jeopardy reform, which would 

grant the prosecution a new power to apply for an acquittal to be quashed and a retrial ordered where fresh evidence emerges in a case of murder, manslaughter or a crime punishable by life imprisonment, and other conditions are met. The prosecution would also be able to appeal against directed verdicts of acquittal and have greater scope to appeal certain judicial rulings during a trial.[4]  

The Council for Civil Liberties at University of New South Wales has gone on record against such reform. They cite national and international laws such as the United Nations International Covenant on Civil and Political Rights, Article 14(7) which states: 

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.[5] 

In 2004, the Australian Attorney-General’s Department convened a committee to discuss submissions they received regarding a national proposal to rescind double jeopardy protections. The committee heard “some very articulate and committed opposition to the general principle of meddling with the double jeopardy principle at all,” but “was unpersuaded by it.” The committee was more concerned about the government getting a “fair trial.” The wording of their working document said, “An order for the retrial of a person is not in the interests of justice if the Court of Criminal Appeal is satisfied that a fair trial is unlikely...”[6]  

Does a “fair trial” mean “finding him guilty” the next time? Since the government holds all the cards in this matter, changing law to suit their whims, “fair trial” ends up meaning anything they desire. For example, the committee decided that allowing only two days to file an application for appeal was insufficient time. Thus, they proposed a modification from their original draft: “Recommendation 6: The time for lodging an application should be increased from 2 to 10 business days with power to apply to extend.”[7] Since they get to write all the rules, and are “unpersuaded” by arguments that don’t fit their agenda, why not extend the window of appeal to 30 days, or three months, or even three years?  

Volokh and Newman explained the concept of the slippery slope in an article: 

Many people think of slippery slopes as most applicable to judicial decisions, where judges are supposed to follow precedent and one decision is legally supposed to lead to others… Voters and legislators aren’t legally obligated to take for granted the policy judgment embedded in past legislative and judicial decisions. Still, they often do, because they find it rational to rely on past judgments in order to save the time and effort needed to think through the matter on their own. And so long as this happens—so long as our support of one political or legal decision today can change people’s attitudes and thus lead them to enact another decision later—we have to take this sort of mechanism into account when deciding on an initial proposal.[8] 

Don Kates presents the issue from the perspective of a flawed governmental approach to fighting crime: 

Governments impose gun control, as England banned handguns, because they are at their wit's end to deal with skyrocketing crime. But gun control does not work: it does not solve the increasing crime problem. So the government has to add more and more curtailments of other civil rights. Thus gun control goes hand in hand with infringement of other rights even though it may not be the direct cause.[9] 

There seems to be a presumption of guilt behind this evolving legal reconstruction: dissatisfied with an acquittal, they must haul the alleged offender into court until the government is satisfied they got what they wanted, since the acquittal was not acceptable. “We lost; that wasn’t fair.” Also, there is an indication of the government’s bias against its citizens: the government does not trust the law-abiding citizen with the responsibility of firearms; now it appears the government does not trust law-abiding citizens to handle the responsibility of a jury.  

Infringing upon the legal tradition of double jeopardy means that additional power is designated to the government by the government, creating its own body of legal precedent beginning with diminishing the protection of double jeopardy in order to “bring justice” to past victims, and ending with altering legal doctrine to create a presumption of guilt in all cases. This would seem in keeping with the “slippery slope” philosophy that once disarmed, the government proceeds to find reasons to rescind additional civil rights, always justifying it in a reasonable way, just as there is always one more “reasonable” gun control law to be passed on the way to civilian disarmament.

Endnotes

[1] Double jeopardy law ushered out, BBC News, April 3, 2005. http://news.bbc.co.uk/1/hi/uk/4406129.stm

[2] Criminal Justice Act 2003, 2003 Chapter 44: Amendments of Police and Criminal Evidence Act 1984, Chapter 2, paragraph 116. http://www.hmso.gov.uk/acts/acts2003/20030044.htm

[3] Scotland Yard on a Recruiting Binge, Nicholas Kralev, The Washington Times, July 7, 2002. http://www.nicholaskralev.com/WT-scotland-yard.html

[4] Double Jeopardy Briefing Paper 16/2003, Rowena Johns, Parliament of New South Wales. http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/89C20D04902F4102CA256ECF00098187

[5] Double Jeopardy, Council for Civil Liberties, University of New South Wales. http://www.nswccl.org.au/unswccl/issues/double%20jeopardy.php

[6] DOUBLE JEOPARDY: MCCOC REPORT - MARCH 2004, Model Criminal Code Officers Committee, Attorney-General’s Department, Australian Government. http://www.ag.gov.au/agd/WWW/agdHome.nsf/Page/Publications_Publications_2003_Model_Criminal_Code_Report_-_Double_Jeopardy

[7] Ibid.

[8] In Defense of the Slippery Slope, Eugene Volokh and David Newman, Legal Affairs, March/April 2003, page 22. http://www1.law.ucla.edu/~volokh/slipperymag.pdf

[9] Don B. Kates, retired professor of constitutional and criminal law and author, in an email interview, May 9, 2005.

© Howard Nemerov 2005 Reprinted with Permission

Howard Nemerov is a freelance writer and former gun control proponent who is now an ardent Second Amendment advocate. He appears regularly on ChronWatch, a popular online news watch site dedicated to giving an alternative view of the liberal dominated presentation of the news. He is also the developer of Applied Motor Control,. has written a book about the work, and his articles have been featured in professional journals and Triathlete Magazine. Howard has taught AMC and maintained a clinical practice for 15 years, specializing in injury rehabilitation and athletic performance enhancement as well as in Personal Injury and Workmen’s Compensation claims. Contact: hnemerov@comcast.net