I have a confession.
Last night I dreamed about Latin tags. When I entered the legal profession more
than fifty years ago, Latin phrases abounded everywhere. I expect Latin was
used even in criminal law but I can’t remember. Mind you, I wasn’t up to much
as a criminal lawyer. Some of my clients would have said, “Drop the word
‘criminal’ and you have it right!”
‘Volenti’, or to
use the tag in full, ‘volenti non fit injuria’ means “to a willing person, injury is not done.” It is a common
law doctrine; if someone willingly places himself or herself in harm’s way,
knowing that some degree of harm might result, he or she are not able to bring
a claim against the other party. For example, if I go to watch a cricket match
and the ball is hit forcefully and lands on my head, I can’t blame the batsman
or anyone else for my head injury.
In America, it is lawful for citizens to own firearms. In many
states, it is lawful to enter a public space with a concealed weapon. Since
everybody is expected to know the law – this is a legal maxim which applies
throughout the western world – those who attend, say, a nightclub in Orlando
will know they may be putting themselves in harm’s way and thus have only
themselves to blame if they are shot dead. If you feel this is a harsh
interpretation, don’t blame me. Blame the judges. They interpret the law,
including the true meaning of the Second Amendment.
The second Latin tag, “reductio ad absurdum,” means reduction of an argument to absurdity. The argument
exposes the truth or otherwise of a statement by showing a false, untenable, or
absurd result. My suggestion that the killer in the Pulse nightclub massacre
had a tenable defence is absurd. It is unlawful to murder people. The murderer
cannot base an argument that those killed ought to have known of the danger
merely by entering the place.
But is the following argument absurd? We all know the
protections offered by the Second Amendment to the Constitution which states:
"A well-regulated militia, being necessary to the security of a free state,
the right of the people to keep and bear arms, shall not be infringed." The
Supreme Court has not only been consistent over the years in protecting the
right to keep and bear arms. It has accepted that the word ‘arms’ is not
restrictive. Any kind of weapon seems to be legal. President Bill Clinton’s
Criminal Justice Bill banned specified automatic weapons but the Bill had a
sunset clause and has expired. Nowadays, there are no restrictions on what arms
Americans can bear, or are there?
Assume you are an American, living in a pleasant city suburb and
your neighbour drives onto your street in a T17 Combat Car, a light tank. Does
he have the right to bear this arm? If not, why not? What if the same neighbour
places a WW2 artillery Field Gun in his front yard? Can he point it at you as a
threat because your front yard is a mess? And can a US citizen own a dirty
nuclear bomb? The answer to the latter is no. It is a federal offence to buy or
hold weapons’ grade uranium. That’s quite a relief!
What about a Kinder Chocolate Egg? These are chocolate eggs
where the chocolate has a hollow centre in which a toy is placed. You will be
relieved to hear the federal authorities are on the ball. Kinder Eggs are
banned in the USA because they are potentially dangerous to children. I know,
it’s laughable. Not even the regulation fanatic in the EU have taken things
this far.
Last week, there was a Senate debate on a criminal justice
measure. Chris Murphy, the Democratic senator for Connecticut, led a filibuster
which ended when a deal was struck with Republican leaders to discuss holding votes on
amendments to expand background checks and to ban gun sales to suspected
terrorists. Exactly how this will prevent mass shootings is a mystery to me but
I suppose that any movement on gun control is better than none.
America has a terrible
gun crisis. In more than three years, there have been over 1,000 mass
shootings. It’s easy to blame President Obama for not doing anything to stem
the killings but the finger has to be pointed elsewhere. America’s government
system is based on separation of powers and it is Congress, not the President,
which has the power to legislate. A Presidential executive order to ban
automatic and semi-automatic weapons will not hold. Congress will speedily set
it aside.
The real villain of
the piece is the National Rifleman’s Association and other gun lobbies. They
have gone quiet in the wake of Orlando but when memories start to fade, the NRA
will poison the waters with their “guns don’t kill” message. Gun sales have
already increased, the sine qua non or indispensable ingredient of a mass
shooting.
What is the
solution? If I was an American, I would join an anti-NRA lobby, dispute and
debate the NRA at every turn and lobby my legislators to write a sensible set
of gun laws. Most important, I would find ways to fund prospective Congressmen
and Senators, both federally and at state level, to defeat pro-gun incumbents.
This week, a
horrifying event took place in Yorkshire, England when Jo Cox, a young Member
of Parliament, was cruelly shot and stabbed to death. Excluding the murders of people
in public life by the IRA during the so-called Irish troubles, I cannot recall
an MP being murdered, although two have been injured by attackers. Since the
assassination of President Kennedy, twenty five US legislators, governors,
judges and mayors have been murdered by gunshot. I do not make a quantitative argument.
However, the man who allegedly killed Jo Cox had no legal right to possess a
firearm. I would bet a large sum that those who killed the twenty five Americans
in public life enjoyed such a right.
Whatever your
politics and whether you are in public life or a private citizen, there should
be no allowance for gun killings in any civilised society. I don’t wish to
offend my many American friends and relations but when will those of you who
defend the right to bear arms wake up and accept that this is not a right but a
recipe for disaster?
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