By MICHAEL SHERMER
In the wake of the Las Vegas massacre — the worst in modern American history, with 58 dead and some 500 wounded — the onus falls once again to those against gun control to make their case. The two most common arguments made in defense of broad gun ownership are a) self protection and b) as a bulwark against tyranny. Let’s consider each one.
Stories about the use of guns in self-defense — a good guy with a gun dispensing with a bad guy with a gun — are legion among gun enthusiasts and conservative talk radio hosts. But a 1998 study in The Journal of Trauma and Acute Care Surgery, to take one of many examples, found that “every time a gun in the home was used in a self-defense or legally justifiable shooting, there were four unintentional shootings, seven criminal assaults or homicides and 11 attempted or completed suicides.” That means a gun is 22 times more likely to be used in a criminal assault, an accidental death or injury, a suicide attempt or a homicide than it is for self-defense.
A 2003 study published in the journal Annals of Emergency Medicine, which examined gun ownership levels among thousands of murder and suicide victims and nonvictims, found that gun-owning households were 41 percent more likely to experience a homicide and 244 percent more like to experience a suicide. The Second Amendment protects your right to own a gun, but having one in your home involves a risk-benefit calculation you should seriously consider.
Gun-rights advocates also make the grandiose claim that gun ownership is a deterrent against tyrannical governments. Indeed, the wording of the Second Amendment makes this point explicitly: “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.” That may have made sense in the 1770s, when breech-loading flintlock muskets were the primary weapons tyrants used to conquer other peoples and subdue their own citizens who could, in turn, equalize the power equation by arming themselves with equivalent firepower. But that is no longer true.
If you think stock piling firearms from the local Guns and Guitars store, where the Las Vegas shooter purchased some of his many weapons, and dressing up in camouflage and body armor is going to protect you from an American military capable of delivering tanks and armored vehicles full Navy SEALs to your door, you’re delusional. The tragic incidents at Ruby Ridge, in Idaho, and Waco, Tex., in the 1990s, in which citizens armed to the teeth collided with government agencies and lost badly, is a case study for what would happen were the citizenry to rise up in violence against the state today.
And in any case, if you’re having trouble with the government, a lawyer is a much more potent weapon than a gun. Politicians and police fear citizens armed with legal counsel more than they do a public fortified with guns. The latter they can just shoot. The former means they have to appear before a judge.
A civil society based on the rule of law with a professional military to protect its citizens from external threats; a police force to protect civilians from internal dangers; a criminal justice system to peacefully settle disputes between the state and its citizenry; and a civil court system to enable individuals to resolve conflicts nonviolently — these institutions have been the primary drivers in the dramatic decline of violence over the past several centuries, not an increasingly well-armed public.
States reduce violence by asserting a monopoly on the legitimate use of force, thereby replacing what criminologists call “self-help justice,” in which individuals settle their own scores, often violently, such as drug gangs and the Mafia. Homicide rates, for example, have plummeted a hundredfold since 14th-century England, in which there were 110 homicides per 100,000 people a year, compared with less than one per 100,000 today. Similar declines in murder rates have been documented in Germany, Switzerland, Italy, the Netherlands and Scandinavia. (American homicide rates are around five times higher than in Europe, owing primarily to the deadly combination of guns and gangs.)
There’s no question that tyrannical states have abused the freedom of their citizens. But it is no longer realistic to think that arming citizens to the teeth is going to stop tyranny should it arise. Far superior are nonviolent democratic checks and balances on power, constitutional guardians of civil rights and legal protections of liberties.
Published on The NY Times on October 5, 2017.
By Andreea Leonte and Valentina Crivăț
For two weeks in March, the Great Hall of the People in Beijing played host to one of the most important yearly meetings in China. Gathering from across the country, 2,987 parliamentarians, with a majority of 2,157 being members of the Communist Party, and stakeholders from nongovernmental sectors joined the fifth session of the 12th National People’s Congress (NPC) and the Chinese People’s Political Consultative Conference (CPPCC), respectively. As the two events usually take place together, they are jointly referred to as the “two sessions” or the “two assemblies.”
According to the Chinese Constitution, the NPC is the most important political body nationwide, with the power to legislate, oversee the operations of the government, and elect the major officers of the state. However, critics say that these powers are just de jure and that, in fact, the Communist Party decides on all major issues, which is why NPC has been commonly referred to as a “rubber stamp” Parliament by Western media. Unlike the NPC, the CPPCC has no legislative power. As its own name suggests, the CPPCC is a consultative body with many of its 2,000 members not members of the Communist Party. Among them are some of China’s most popular figures, like the actor Jackie Chan, the basketball player Yao Ming, or Wang Jianling, the owner of Wanda Group and also China’s richest businessman.
During the two sessions, the Communist Party announced its intention to introduce a comprehensive Civil Code, designed to improve the existing civil rules that are scattered throughout many pieces of legislation. This is part of a broader plan to reform the country’s legal system by 2020. The ambitious reform agenda was announced three years ago during the Fourth Plenary Session of the 18th Central Committee of the Communist Party of China (CPC), in October 2014.
Following the inauguration of the civil code, many laws currently regulating various aspects of a civil nature, such as contract law, tort law, adoption law, marriage law, etc., will most likely be completely or partially abolished. The civil code will follow the general principles of the civil law and the principles set out in the Chinese Constitution. However, the new code is expected to shed more light on some rather obscure areas of law that need further legislation, for instance with regard to property, family relations, and personal rights, which we will discuss below.
Private property is protected under Article 13 of the 1982 Chinese Constitution, as amended in 2014. The discussion on property rights becomes sensitive when it comes to land ownership. In China, a country with a powerful socialist heritage, land can only be owned by the state or by collective organizations; private entities can only buy the right to use the land for a limited number of years. According to the existing legislation, land-use rights – “usufructuary rights” – can be granted for a maximum of 70 years, after which the law is not very clear on what will happen. Thus, individuals in China can own their houses and apartments, but they cannot own the land on which these buildings are constructed, nor can they own the natural resources underneath. The land-use rights are transferable, however, observers say that the market for land prices is monopolized by the government, even when the land is owned by a collective.
The poor enforcement of real estate property rights is mirrored by the numerous land-seizures seen during the past years, many a direct consequence of China’s urbanization process. This situation is particularly damaging for businesses, as it makes investors reluctant to engage in economic activities, knowing that the land on which they are conducting their businesses is vulnerable to government decisions, sometimes at a moment’s notice. The new private property guidelines are thus expected to strengthen the property rights regime and provide more protection for private property, by narrowing the interpretation of “public interest” as a means to prevent abusive expropriations. Likewise, a mandatory condition for all acts taken by the state in relation to private property to be publicized would highly contribute to increasing political trust in China.
The new civil code will touch upon family relations as well. However, it isn’t clear how deep the new rules will go onto the matter, since China already has in place several laws pertaining to adoption, marriage, and other aspects related to family life. Whether the Civil Code is going to replace these laws remains to be seen. More importantly, in recent years, China has become aware of major challenges approaching at a fast pace, among which the aging of its population raises the most concerns. In a United Nations Report, it was estimated that, by 2050, each retiree in China will be supported by 2.1 people in the workforce. Against a background of slowing economic growth, this prediction does not seem very optimistic.
But perhaps the most worrisome for the public consciousness is the fact that an ever-increasing number of elderly people are being abandoned by their children, who plunge headlong into very competitive urban centers in search of a better life. This phenomenon is aggravated by the similar situation of the many children left behind by parents who leave their homes seeking higher incomes, hopeful that they will be able to provide a better future for their children. The new guidelines are thus expected to address the guardianship issue and to put in place better protections for these highly vulnerable people.
The topic of the aging crisis was brought up with great concern during the NPC Session, as 8.86 million people turned 60 in 2016. Every day 24,000 people turn 60 in China, meaning one person every four seconds. Considering that, the NPC proposed a series of measures to improve elderly care services, including crafting a multi-pillar, fairer, and more sustainable social security system by 2020. The plan is to offer basic old-age insurance coverage for 90 percent of residents and basic medical insurance for more than 95 percent of them; also, government-run nursing homes will account for at least 30 percent of the nation’s total nursing beds for the elderly. Other efforts will be directed toward improving elderly access to technology and enriching their cultural life.
Another anticipated major headline in the new civil legislation is represented by the so-called “personality rights,” which call for a dedicated section in the civil code. Personality rights (or birth rights) are a series of freedoms and liberties that each individual enjoys upon birth, such as the right to life, to physical and mental integrity, freedom of speech, the right to privacy, health, reputation, etc. These rights and freedoms are inherent to the human person and the law merely encodes them. Their free exercise, however, needs to be guaranteed and protected by the state through legal provisions and specialized bodies designed to prevent and punish any acts of violation.
The personality rights are currently guaranteed under Chapter II of the Chinese Constitution. But such provisions cannot be cited in court, due to the absence of a Constitutional Court that would ensure the uniform interpretation, protection, and enforcement of such provisions. Should anyone invoke the claim that a law or administrative act is unconstitutional, there is no specialized organ to could rule upon such matters. A possible explanation as to why China didn’t also establish a specialized Court to rule on constitutional matters at the moment when the Constitution was adopted is that China rejects the separation of powers doctrine, out of concern that it would undermine the authority of the Communist Party. Hence, without an autonomous judicial body to ensure that the fundamental law prevails within the state, the Constitution is left at the moment with only a symbolic role in China.
The importance of guaranteeing the free exercise of personality rights is unquestionable and the new Civil Code should avoid, by all means, rendering the protection regime opaque and rigid. The legislators play an essential role in this; therefore, they should be cautious when defining and enumerating these rights, and make sure they establish an efficient enforcement mechanism. The outlook is not optimistic, though. China is known for allowing restrictions when it feels that too much liberty could weaken state authority or challenge the leadership of the Communist Party.
All these are key areas in which Chinese legislation needs to be further strengthened. But the legal system cannot truly improve unless it ensures that citizens’ personal rights, property rights, basic political rights, and other inherent rights are guaranteed and protected by the state as inviolable. Although the enactment of a Civil Code represents a big step forward in the direction of a rule-of-law system, the legislative work in China needs to continue. Likewise, the systems and mechanisms through which the law is enforced need to be bettered, while at the same time facilitating public participation in the process.
Published on The Diplomat's website on March 30, 2017.
By PHIL BOLTON
Despite the Rome Declaration that was signed on March 25 by 27 leaders of the European Union to celebrate the EU’s founding 60 years ago, Mark Ellis, executive director of the London-based International Bar Association, fears that the most “civilized experiment of the 20th century” is on the verge of extinction.
Should a founding member follow the Brexit path, such as France or the Netherlands, the EU could come to an “end,” he told Global Atlanta while visiting Atlanta last week. “The chances are significant right now,” he added. And if the EU does fall apart, “the consequences won’t be positive,” he predicted with the legal rights now taken for granted in the West disappearing.
Nor is he any more confident of the U.S. and has directed his association to hire a full-time journalist to track the Trump administration’s actions and launch a social media campaign to counteract that of the White House.
Dr. Ellis was in Atlanta for the plenary meeting of the Atlanta International Arbitration Society, which brought together dozens of the Southeast’s attorneys from leading law firms to hear his address titled “Reflections on Trumpand Europe.” He also met with students at Georgia State’s College of Law.
The greatest threat from a dissolution of the EU, he said, would be the creation of a void in the fabric of the rule of law guaranteed by the EU and provide an opportunity for Russia to fill the vacuum.
In view that the association is composed of 206 national bar associations, major international law firms and 80,000 members from around the world, it’s not surprising that its director has a commitment to the principles of the rule of law.
He has enumerated these as follows: an independent, impartial judiciary, the presumption of innocence, the right to a fair and public trial without undue delay, a rational and proportionate approach to punishment, a strong and independent legal profession, strict protection of communications between lawyers and their clients and equality before the law.
“The essential premise is that a free state is characterized by the superiority and predictability of law and by separation of powers,” he has written in a published paper.
All this is threatened by “a dramatic growth in fascism and populism,” he said, with Europe’s future of law abiding, democratic states balancing “on a thin edge.”
While Dr. Ellis said that he considers “the center is still holding,” a “fast decline” could be prompted by “something unforeseen — a tipping point that might be caused by a terrorist attack in France or Germany.”
He acknowledged that the Brexit vote and the election of Donald Trump as president of the United States came as a surprise and reflected his failure to see beyond the intellectual cocoon in which he lived including reading U.K. newspapers such as the London Times, the Guardian and attending lectures at the London School of Economics.
Twenty-seven leaders of the EU signed the Rome Declaration on March 25 proclaiming “our common future…”And he admitted that he had not appreciated “the appeal to the disenfranchised who perceive they have been left behind by a globalized economy,” primarily because of his view that the advances of globalism have been widespread around the world benefiting millions of people.
He also decried the influence of Nigel Farage, the founder of the U.K. Independence Party that led the Brexit movement, who spoke in Atlanta one day previously, and Marine Le Pen, the leader of France’s National Front(FN), who is fighting to achieve a similar political earthquake in France in the upcoming presidential elections as Farage did in the U.K. with Brexit.
Granting that the European Parliament has been responsible for “over regulating” on business and trade practices, he called the claims of both Mr. Farage and Ms. Le Pen exaggerated.
Nevertheless, he called on the more than 200 bar associations in his organization to “discuss these issues and promulgate solutions” before it’s too late. And he indicated that it already may be too late in Hungary and Poland in the EU and in Turkey where tenets of the rule of law, he said, are violated regularly.
“What is happening in Washington is dangerous,” he said. “What needs to be done is to start shifting the paradigm, and that shift has to be done collectively,” he added, calling for a bipartisan defense of the principles which, he said, “are under attack.”
That attack is exacerbated, he added, by Russia, which he blamed for interfering in democratic elections. “Russia is the most illiberal country right now with the exception of the pure dictatorships,” he said.
His association, he also said, has been tracking Russian developments for the past five years and he personally has been well acquainted with Russia’s activities for 10 years before his current job while serving as the first executive director of the Central European and Eurasian Law Initiative (CEELI), a project of the American Bar Association.
Published on Global Atlanta's website on March 28, 2017.