Both Barrels - Bill of Rights 1689
In the first edition of his new online column, Both Barrels, Bill Harriman dispels the belief that the Bill of Rights 1689 offers salvation and a safeguard for the private ownership of firearms in the UK.
I was buttonholed at the Game Fair by a very insistent man who said the BASC should use the Bill of Rights 1689 (BoR) to show that the government’s decision to ban MARS rifles was unconstitutional and thus illegal. Needless to say, I didn’t agree with him and tried to explain why not.
Here’s why I think that his plan had no legs.
In the aftermath of the decision to ban pistols in 1996, a small number of deluded people pinned their hopes on the BoR and formed BORAS – the Bill of Rights Association.
Amazingly, 23 years on there are still those who still see this as our salvation and a safeguard for the private ownership of firearms. My view is that this faith is misplaced and that when it comes to safeguarding gun ownership, the BoR is about as much use as a chocolate fire screen.
The English constitution is unwritten. It is not in any one code; neither is it formally enacted and its provisions have to be sought in many different fields. As such, it stands in stark contrast to a rigid or written constitution such as that in the US.
Its inherent flexibility means that there are no special safeguards for constitutional rules and that constitutional law can be changed, amended or abolished by the will of parliament alone. There are no fundamental or inalienable norms and Parliament may legislate in any field.
In this way, it is possible for a statute which limits the freedoms of the citizen to pass through all of its parliamentary stages and receive Royal Assent in a single day as witness the Emergency Powers (Defence) Act passed on 22nd May 1940. Parliament is fully sovereign and it is not open to the British courts to say that an Act of Parliament is unconstitutional or otherwise void.
Evils of James’ reign
The 17th Century saw massive changes in the way in which England was governed. At the beginning of the century Queen Elizabeth reigned as an absolute monarch. Eighty-nine years later, her successors in the persons of King William and Queen Mary had agreed to give up much of the Crown’s prerogative and reign as constitutional monarchs with The Bill of Rights, 1689 as their “charter”.
During the decades of the 1640s, England had been embroiled in a bloody Civil War, which culminated in thepexecution of King Charles I and the formation of a Republic or Commonwealth under Cromwell.
The Restoration saw the Monarchy back in business but the reign of James II (1680 – 1688) was so despotic and pro Roman Catholic that William of Orange was invited to assume the throne. The legitimacy of this act was sustained by William’s marriage to James’ daughter Mary and he ruled jointly with her until she died in 1694.
The Bill of Rights has a short title which states that it is “An Act declaring the Rights and Liberties of the Subject and Settling the Succession of the Crowne”.
It starts with a declaration of the evils of James’ reign which included allowing Catholics to be armed, disarming certain Protestants. It permitted illegal prosecutions, excessive bail, corrupt and unqualified juries, excessive fines, the suspension of parliament, the violation of elections, the keeping of a standing army and the infliction of cruel and unusual punishments.
Allowed by Law
It then goes on to set out the Subject’s Rights, the exercise and limitation of regal power, the allowance of subject’s liberties and the succession to the throne. Clause 7 (Subject’s Arms) provides “That the subjects which are protestants may have arms for their defence suitable to their conditions and as allowed by Law”.
The key words in Clause 7 are “as allowed by Law”, i.e. in the manner prescribed by the law making body, Parliament.
Clause 7 does not give an unfettered right to have arms. Its inclusion came about because James II allowed Catholics to have arms to the exclusion of Protestants. The fact that one of its qualifying factors hinges upon acknowledgment of one branch of the Christian religion shows that the BoR has little relevance to a modern multi-religious society.
Quite simply, modern society has moved on to the degree that the religious qualification in Clause 7 is irrelevant.
Right to own guns restricted
There is another aspect to this as well. Section 16 of the Firearms Act 1968 makes it an offence to possess a firearm with intent to endanger the life of another. It flows from that, if you keep a gun for self-defence, then you are automatically committing an offence because you intend to endanger life. QED.
Clause 7 has not been amended, but it is subject to the body of firearms legislation that has been passed by parliament since then. At the time that the BoR was passed, there was already a body of firearms law in force which restricted the right to own guns.
The Tudors and their successors had been passing such laws since 1508 and whilst these may have been honoured more in their breach than their observance, they were still extant. The drafters of the BoR recognised this and inserted the words “as allowed by Law”, accordingly.
It is also implicit from this that the right of arms for defence by Protestants was at the will of parliament, which made the law. By extension, this could be modified in the future if parliament saw fit.
The BoR is still a Statute in Force because parts of it still carry the force of law. However, it is not in force in its entirety as it has been subject various amendments and repeals over the years and is no longer in the same form as it was in the late 17th Century.
In particular, jurors are no longer required to be freeholders. Those who hold public office no longer have to make the declaration in the Oath of Supremacy that they “Abhorr, detest and abjure” the Roman Catholic faith as an impious, heretical and damnable doctrine. Today, this would be considered to be ‘hate crime’.
Firearms ownership faces real and present dangers
The Army Act allows the Crown to maintain a standing army. This has circumvented the provisions of the Bill of Rights without explicitly amending it.
Also, the Defamation Act 1996 allows MPs to waive their protection under Clause 9 of the Bill of Rights to bring libel actions which would have to examine their conduct in the Commons.
The hard fact is that the Bill of Rights is not inviolate and if parliament was so minded, it could be repealed tomorrow. Any competent “O” Level law student knows this.
Shooting faces real and present dangers from the Home Office reviews of various provisions of the Firearms Acts and by the proposed Statutory Guidance.
We are not going to protect firearms ownership by skulking behind the yellowing parchment of the Bill of Rights. It is high time for heads to be drawn out of the sand, for this to be acknowledged and move on.