Malcolm’s moment

As I read Paul Rahe’s recent Ricochet post “Rioting for fun and profit,” it occurred to me that events in England had made this Malcolm’s moment — Malcolm as in Professor Joyce Lee Malcolm. Professor Malcolm is a historian and constitutional scholar specializing in British and colonial American history who teaches on the faculty of the George Mason University Law School.

Professor Malcolm has devoted much of her scholarly career to the historical roots of the right to bear arms, on the one hand, and the link between the abrogation of the right to bear arms and the rise of criminal violence, on the other. Her pioneering work in To Keep and Bear Arms: The Origins of an Anglo-American Right (1996) contributed to the revivification of the Second Amendment in the Heller case. Her 2004 book Guns and Violence: The English Experience bears pointedly on the events of the past two weeks.

Earlier this week the Wall Street Journal published Professor Malcolm’s column “The soft-on-crime roots of British disorder.” Thinking along the same lines as the editors of the Journal, last week I invited Professor Malcolm to write for us on recent events in England. She has graciously responded with the column-length essay “The English riots: How British law fosters disorder.” Professor Malcolm writes:

The most amazing thing about the reaction of English MPs to last week’s terrible violence was how surprised they were. For a country whose criminal law is invariably sympathetic to offenders, nearly always harsh on their victims, and unwilling to pay for adequate policing the surprise is that they were surprised.

Two stories hitting English papers during June and July provide a glimpse of current British law in action.

On June 23 around midnight a masked gang broke down the back door of a home in Salford, in northwestern England. The householder, 59, his son and the son’s girl friend called the police and tried to defend the home and themselves. They managed to stab one of the gang who died of his wounds. When the police arrived they arrested the householder, his son and the son’s girlfriend on suspicion of attempted murder.

On July 11, a headline in The Sun read “Shopkeeper, 72, nicked after `stabbing to death robber.’” Mr. Coley’s Manchester flower shop was closed and he was playing dominoes with a friend when two masked men armed with guns broke in. In the struggle that followed, Mr. Coley’s friend was injured but Coley managed to stab one robber, who later died, while the other fled wounded. The Manchester police are holding Mr. Coley for attempted murder.

Since at least 1953 the English government has insisted that citizens depend on the police for protection and not try to protect themselves. The Prevention of Crime Act of 1953 prohibited anyone carrying an article in a public place with the idea it could be used for protection if they were attacked. If discovered they are charged with carrying an offensive weapon.

Since 1964 self-defense has not been considered a good reason to keep a handgun, even if for those who lived in a remote area. Then in 1998 all handguns were banned. Toy or replica guns are also illegal. A man was arrested for holding two burglars with a toy gun while he contacted the police.

More recently knives with points have been made illegal. A list of prohibited weapons, possession of which carries a 10-year prison sentence, includes not only machine guns but chemical sprays and knives with a blade more than three inches long. An American tourist from Arizona who protected herself from attackers in the subway using her penknife was arrested for carrying an offensive weapon.

The government does not permit even someone who is unarmed from acting forcefully when attacked if his or her assailant is harmed in the process. If a citizen is attacked in the street he is to flee. If a citizen is attacked in his home he is not to injure the attacker beyond what a court later considers a reasonable use of force. If a citizen harms his assailant he will be accused of assault, or, as the cases cited above illustrate, murder or attempted murder should the attacker be killed.

Burglars can sue for damages and the police are careful to ensure they don’t get hurt. This past February the gardeners of Surrey were told they could not use wire mesh on the windows of their sheds because burglers might get hurt breaking in.

Tony Martin, an English farmer jailed for killing one burglar and wounding another with his shotgun during the seventh break-in of his home was denied parole because he would pose a threat to burglars. The career burglar he wounded was granted parole and sued Martin for his injuries. Worse, the burglar was given public funds to pursue his lawsuit.

While law-abiding citizens have been treated strictly offenders have not. Since the 1950s it is only under extraordinary circumstances that anyone under 18 is put in jail. Instead offenders are given a warning, a fine or community service. Since young offenders know they will not be incarcerated there is little to deter them from committing ever more bold crimes. One of those brought to court during the recent riots was an 18-year old who had been hauled before the courts 21 previous times but never jailed.

Sentences for adult criminals have been shortened and they routinely serve only half of these. In lieu of policemen on the beat the English have opted for surveillance cameras. These are much cheaper but all a potential offender needs to do is to wear a hood or mask to greatly diminish their value. English police now dealing with the riots boast they have 20,000 hours of footage.

Even offenders who have been apprehended tend to be let off with a caution or electronic bracelet. This saves money on prison but means they are back on the streets in short order. In 2009 70 percent of burglars the police managed to apprehend avoided prison.

The extent of the tolerance of criminality and refusal to allow law-abiding people to protect themselves has led to an atmosphere where gangs can operate with virtual impunity. The recent, widespread riots, apart from their scale, are not radically different from the violence that has been occurring for many years.

Let us hope the English politicians so surprised and angry at the lawlessness in their cities realize it is time for change, time to permit people to protect themselves and to bring some rigour into the punishment of offenders.

In addition to the books cited above, Professor Maclolm is the author, most recently, of Peter’s War: A New England Slave Boy and the American Revolution.

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