Malcolm’s moment revisited

We posted Professor Joyce Malcolm’s commentary on the British riots in “Malcolm’s moment” earlier this week. A commenter going under the handle of the scotsman has posted a vehement critique of Professor Malcolm’s commentary at Free Republic. Professor Malcolm responds:

The information I have written, while obviously exciting the scotsman to the point of hysteria, happens to be accurate. To take just a couple of points:

When the British police response to a wounded assailant is to arrest the person attacked–the homeowner attacked at night in his own home or a shopkeeper whose shop was invaded by armed burglars-and threaten them with charges of assault, attempted murder, or murder they are beginning with the assumption that the victim is guilty. The facts should be ascertained before the arrest. In America Mr. Coley would not have been arrested.

As Glanville Williams, author of a famous textbook on British criminal law wrote: “For some reason that is not clear, the courts occasionally seem to regard the killing of a robber (or a person who is feared to be a robber) as of greater moment than the safety of the robber’s’ victim in respect of his person and property.” He added that the requirement that an individual’s efforts to defend himself be “reasonable” was “now stated in such mitigated terms as to cast doubt on whether it still forms part of the law.”

As for having to retreat if attacked on the street, the BBC has explained that if attacked you may defend yourself with a briefcase, a handbag or keys but once you have broken free you must retreat. Should you give your assailant an additional blow you are guilty of assault.

On the illegality of replica guns, the Violent Crime Reduction Act of 2006 bans the manufacture of realistic imitations. It defines unrealistic imitations as being at least 50 percent colored bright green, blue, red, pink, yellow, purple or transparent.

The date for no longer being able to obtain a gun for self-defense was indeed 1964. Home Office classified instructions to the police in that year state: “It should hardly ever be necessary to anyone to possess a firearm for the protection of his house or person…this principle should hold good even in the case of banks and firms who desire to protect valuables or large quantities of money; only in very exceptional cases should a firearm be held for protection purposes.”

The fruits of the strange tilt in British crime policy have been decades of increasing lawlessness and, more dramatically, the recent riots. Sometimes the truth can be highly unpleasant but attacking the messenger is not the answer.

Joyce Malcolm is a historian and professor of law at the George Mason University Law School. She is the author, among several other books, of To Keep and Bear Arms: The Origins of an Anglo-American Right (1996) and of Guns and Violence: The English Experience (2004). She is also the author, most recently, of Peter’s War: A New England Slave Boy and the American Revolution (2010).

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