Keep and Bear Arms

Individual or Collective Right to Arms
A Word from the UK
by Michael Burke

I believe that some American Court of Appeal Judges are due to give their decision regarding whether or not the American Constitution gives an individual or collective right for arms for defence. (Emerson case?)

As the American Constitution is based on our Bill of Rights, the same interpretation can be applied.

You may be interested in a judgement given in the English High Court dated 2nd October 1988 which confirms our right to arms as an individual, rather than collective right.

However, Justice Popplewell was of the opinion that the Bill of Rights gave us rights, but during my appeal on 8th March 1999, I managed to wring an admission from the Lord Justices that the Bill of Rights was declaratory of common law.

Joyce Lee Malcolm made the same mistake in her book which I believe was entitled "To keep and bear arms."

It would also appear that no one has mentioned that we also have a Declaration of Rights which preceded the Bill of Rights and was offered to William and Mary on 12th February 1688. After the prospective Monarchs had agreed to the terms of the Declaration, it was engrossed in Parliament and Enrolled amongst the Rolls. However, it does not appear on the statute books, because there was no Monarch on the throne.

Like Magna Carta, it is a peace treaty and cannot be repealed.

William and Mary were crowned the following day, 13th February 1688.

Following the Court of Appeal judgement, I have given information to the local Magistrates that Lord Justices Henry, Morritt & Peter Gibson committed a treasonable act by giving a judgement which claimed that common law rights can be disregarded and repealed by Parliament.

Regards,

Mike Burke.

IN THE HIGH COURT OF JUSTICE CO/2750/98
QUEEN’S BENCH DIVISION

Royal Courts of Justice,
Strand,
London WC2

Friday 2nd October 1998.

Before:

MR JUSTICE POPPLEWELL

REGINA
-v-
H M GOVERNMENT
Ex parte MICHAEL JAMES BURKE

MR JUSTICE POPPLEWELL: This is an application by the applicant in person to challenge the decision of the Chief Constable of Thames Valley and the Home Office refusing him a certificate or permit to hold a firearm for self-defence.

The applicant seeks Judicial review on two grounds. Firstly, he says that the provisions of the Firearms Act 1968 are contrary to the rights conferred on citizens by the Bill of Rights and that the Firearms Act has not repealed the Bill of Rights: secondly, that from the correspondence, it appears to suggest that the secretary of State has a policy that on no account will a permit be granted for personal protection purposes.

Section 7 of the Firearms Act 1968 reads:
“A person who has obtained form the chief officer of police for the are in which he resides a permit for the purpose in the prescribed form may, without holding a certificate under this Act, have in his possession a firearm and ammunition in accordance with the terms of the permit.”

By section 5(1A):
“Subject to section 5A of this Act, a person commits an offence if, without the authority of the Secretary of State, he has in his possession, or purchases or acquires, or sells or transfers…”

and then various items, including effectively, a gun.

It is not in dispute that the Bill of Rights gave the citizen a right to hold arms. The Question which is posed is whether the Firearms Act, which does not expressly repeal the Bill of Rights, should be taken implicitly so to have repealed. The general position in law is this. Where a later enactment does not expressly repeal an earlier enactment which it has power to override, but the provisions of the later enactment are contrary to those of the earlier, the latter by implication repeals the earlier. The commentary in Bennion on Statutory Provisions says that:

“If a later Act makes contrary provision to an earlier, Parliament, thought it has not said so, is taken to intend the earlier to be repealed. The same applies where a statutory provision is contrary to a common law rule.”

I have no doubt that the Firearms Act 1968 which is a successor to a number of Firearms Acts going back to 1920 was intended to repeal the right of the citizen to bear arms. Accordingly, in my judgement, the applicant is governed by the Firearms Act 1968 and reference to the Bill of Rights will not assist him.

The second point is the question of the secretary of State’s approach. His letter dated 2nd October 1997 reads as follows:
“Thank you for your letter of 24 September 1997 about the Secretary of State’s authority to possess section 5(1) (aba) prohibited weapons under section 5 of the Firearms Act 1968 (as amended).

The secretary of State gives careful consideration to the grant or renewal of authorities to possess prohibited weapons, and I regret to inform you that having considered all the circumstances of the application he has decided not to grant an authority.

Applications for the authority of the Secretary of State are usually made by persons who wish to trade (manufacture, buy, sell etc) in prohibited weapons and/or prohibited ammunition, or who otherwise consider they have a need arising from the nature of their trade, profession, occupation or business. The Secretary of State normally regards these as acceptable reasons for making an application.

It is not the policy of the Secretary of State’s authority to be granted for personal protection purposes. If you consider yourself to be at risk, I have to say that the proper agency for the protection of a country’s citizens is its police force. I can only suggest therefore that you contact your local police force and discuss the level of threat you feel yourself to be facing and the precautions you might need to take.”

There was a further letter from the Home Office dated 30th April 1998 in which the Secretary of State said:
“The Secretary of State gives careful consideration to the grant or renewal of authorities to possess prohibited weapons and I regret to inform you that having considered all the circumstances of the application he has decided not to grant an authority.”

He repeats what was in the letter of 2nd October
“Applications made for other reasons are given careful consideration, however unless there are exceptional circumstances involved, an authority will not normally be granted.”

Mr. Burke says that that is a change from the previous letter in which they have set out a blanket policy not to grant the applicant permission for personal protection. He drew my attention to a letter addressed to a Mr. Berry, which says that it is the policy of the government not to allow possession of firearms for personal protection.
Mr. Burke does not suggest that he has been under any threat which would give rise to the need for personal protection. Although a challenge can sometimes be made to a blanket policy which is operated without personal consideration, the letters appear to mean that the Secretary of State does consider the personal position, namely those who wish to trade, but he will not grant an authority for self-defence. In the instant case, it is clear that there is no threat to the applicant, so that if the policy were to be challenged, it is clear that the Secretary of State would not in any event grant permission in the instant case because there would be no good reason for it.

For all those reasons, this is an application which I shall not grant because it would be doomed to failure if I granted leave.

..................

IN THE SUPREME COURT OF JUDICATURE FC3 98/7400/3
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(Mr. Justice Popplewell)
Royal Courts of Justice
Strand
London WC2

Monday. 8th March 1999

Before:
LORD JUSTICE PETER GIBSON
LORD JUSTICE HENRY
LORD JOSTICE MORRITT

THE QUEEN -v- SECRETARY OF STATE FOR THE HOME DEPARTMENT

Ex parte MICHAEL JAMES BURKE.

(Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited 180 Fleet Street, London EC4A ZHD Telephone No: O171 421 4040. Fax No. 0171 831 8838. Officia1 Shorthand Writers to the Court).

THE APPLICANT appeared in Person

JUDGMENT (As approved by the Court)

Crown Copyright

LORD JUSTICE HENRY: Section 5 (1) of the Firearm Act 1968 makes it an offence if a person, without the authority of the Secretary of State, has in his possession a prohibited firearm. Until 1997 that section did not apply or the definition of "prohibited firearms” did not extend to small bore handguns, but they were added to the list of prohibited firearms by the amending Acts passed in 1988 and 1997. The 1997 Act, passed in the after-math of the tragedy at Dunblane, removed small calibre pistols from the list of exceptions to prohibited handguns.

Mr, Burke, the applicant who has appeared in person before us today, has two such pistols, a Smith and Wesson and a Browning. They, as I understand him, had been taken from him under the Act that was passed post-Dunblane. It was no reflection on him. The Act applied to everyone in the country. He wants those pistols back. He applied to the Home Office for that, and he said this :
.
" I wish to claim my common law right possess pistols for my defence and therefore formally make this application to you for the necessary authorities. I remind you of your obligation under the Bill of Rights to respect the liberties of the subject".

That application was refused by letter from the Home Office on 2nd October. That letter reads as follows:

“Thank you for your 1etter of 24 September 1997 about the Secretary of State's
authority to possess section 5(1) (aba) prohibited weapons under section 5 of the
Firearms Act 1968 (as amended).

The Secretary of State gives careful consideration to the grant or renewal of authorities to possess prohibited weapons, and I regret to inform you that having considered all the circumstances of the application he has decided not to grant an authority.

Applications for the authority of the Secretary of State are usually made by persons who wish to trade (manufacture; buy sell; etc) in prohibited weapons and/or prohibited ammunition, or who otherwise consider they have a need arising from the nature of their trade, profession, occupation or business. The Secretary of State normally regards these as acceptab1e reasons for making an application.

It is not the policy for the Secretary of States authority to be granted for personal protection purposes.

If you consider yourself to be at risk, I have to say that the proper agency for the protection of a country's citizens its police force. 1 can only suggest therefore that you contact your local police force and discuss the level of threat you feel yourself to be facing and the precautions you might need to take”.

There was further correspondence with the Home Office, and in answer to another applicant making a similar application, the Home Office said, in a letter dated 30th April 1998:

" In effect, there are no circumstances in which you would be authorised to possess a pistol for personal defence in Great Britain and nor are there likely to be unless government policy changes. "

Mr. Burke now seeks to challenge that decision by way of judicial review. He starts with the Bill of Rights.

The Bill of Rights, as its title makes clear, is an Act declaring the rights and 1iberties of the subject and settling the succession of the Crown. The recital, when
dealing with those rights and liberties, sets out the statutory background in relation to this. Under "disarming protestants", the recita1 says:

“By causing several good subjects being protestants to be disarmed at the same time when papists were both armed and employed contrary to law."

And then, when dealing with the subject's rights, it was declared in relation to “Subjects' Arms”:

"That the subjects which are Protestant may have arms for their defence suitable to their conditions (then follow the crucial words) and as allowed by law."
.
That was the Bill of Rights, It was declaratory of the common law. It contained in it its own words of limitation, namely that the right to have arms for self-defence is limited by the words "and as allowed by Law". The law is a changing thing. Parliament by statute can repeal the common law. Parliament has since 1920 (and it may be earlier, but certainly since 1920) imposed limitations on the right to carry firearms, and one of those limitations is Section 5(1) which we are here concerned with. Where the Bill of Rights says that “ the Subjects may have arms for their defence suitable for their condition and as allowed by law”, "and as allowed by law means “and as allowed by law for the time being", and at this time you have to comply with the provisions of the Firearms Act 1968, section 5, as amended, if you wish to have a prohibited weapon; that is to say, you require authority from the Secretary of State. That is the first ground which makes Mr. Burke’s application hopeless.

Even if that ground was not fatal to it, the submission is not entrenched; that is to say, what the law makes, the law can unmake. Mr. Burke suggested to us that Parliament has no power to alter the common law. That is a submission totally without substance. What the law makes the law can unmake. You now need the authority of the Secretary of State if you have a prohibited weapon. Mr. Burke cannot avoid that provision of the law.

Mr. Burke then takes a third point. He says that the Secretary of State has wrongly fettered his discretion, in that he is refusing all who wish to carry arms for their personal protection. However, as the 1etter of 2nd October makes clear, he does make exceptions where there is a need from the nature of their trade, profession, occupation or business, but those exceptions are subject to his present policy, namely that authority shall not be granted to those who need them for personal protection purposes. That is a policy which the Secretary of State is entitled to have. There is nothing improper in him having it. It does not assist Mr Burke. Therefore, this application must be refused.

LORD JUSTICE MORRITT: I agree.

LORD JUSTICE PETER GIBSON: I would pay tribute to Mr. Burke for the clear and courteous way in which he has expressed his grievance at the refusal by the Home Office to grant him authority to hold his handguns. He has provided us with a skeleton argument and an affidavit. It is obvious that, although not a lawyer, he has put in a great deal of research to present to us documents in support of his argument. I have to say that his argument that he has a common law right to hold arms for his defence, which has not been validly removed by the Firearms Act, seems to me to be unsustainable for the reasons given by Lord Justice Henry. I, too, would refuse the application.

Order: Application refused.

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Written By:	Mike Burke
	Individual or Collective Right to Arms A Word from the UK by Michael Burke I believe that some American Court of Appeal Judges are due to give their decision regarding whether or not the American Constitution gives an individual or collective right for arms for defence. (Emerson case?) As the American Constitution is based on our Bill of Rights, the same interpretation can be applied. You may be interested in a judgement given in the English High Court dated 2nd October 1988 which confirms our right to arms as an individual, rather than collective right. However, Justice Popplewell was of the opinion that the Bill of Rights gave us rights, but during my appeal on 8th March 1999, I managed to wring an admission from the Lord Justices that the Bill of Rights was declaratory of common law. Joyce Lee Malcolm made the same mistake in her book which I believe was entitled "To keep and bear arms." It would also appear that no one has mentioned that we also have a Declaration of Rights which preceded the Bill of Rights and was offered to William and Mary on 12th February 1688. After the prospective Monarchs had agreed to the terms of the Declaration, it was engrossed in Parliament and Enrolled amongst the Rolls. However, it does not appear on the statute books, because there was no Monarch on the throne. Like Magna Carta, it is a peace treaty and cannot be repealed. William and Mary were crowned the following day, 13th February 1688. Following the Court of Appeal judgement, I have given information to the local Magistrates that Lord Justices Henry, Morritt & Peter Gibson committed a treasonable act by giving a judgement which claimed that common law rights can be disregarded and repealed by Parliament. Regards, Mike Burke. IN THE HIGH COURT OF JUSTICE CO/2750/98 QUEEN’S BENCH DIVISION Royal Courts of Justice, Strand, London WC2 Friday 2nd October 1998. Before: MR JUSTICE POPPLEWELL REGINA -v- H M GOVERNMENT Ex parte MICHAEL JAMES BURKE MR JUSTICE POPPLEWELL: This is an application by the applicant in person to challenge the decision of the Chief Constable of Thames Valley and the Home Office refusing him a certificate or permit to hold a firearm for self-defence. The applicant seeks Judicial review on two grounds. Firstly, he says that the provisions of the Firearms Act 1968 are contrary to the rights conferred on citizens by the Bill of Rights and that the Firearms Act has not repealed the Bill of Rights: secondly, that from the correspondence, it appears to suggest that the secretary of State has a policy that on no account will a permit be granted for personal protection purposes. Section 7 of the Firearms Act 1968 reads: “A person who has obtained form the chief officer of police for the are in which he resides a permit for the purpose in the prescribed form may, without holding a certificate under this Act, have in his possession a firearm and ammunition in accordance with the terms of the permit.” By section 5(1A): “Subject to section 5A of this Act, a person commits an offence if, without the authority of the Secretary of State, he has in his possession, or purchases or acquires, or sells or transfers…” and then various items, including effectively, a gun. It is not in dispute that the Bill of Rights gave the citizen a right to hold arms. The Question which is posed is whether the Firearms Act, which does not expressly repeal the Bill of Rights, should be taken implicitly so to have repealed. The general position in law is this. Where a later enactment does not expressly repeal an earlier enactment which it has power to override, but the provisions of the later enactment are contrary to those of the earlier, the latter by implication repeals the earlier. The commentary in Bennion on Statutory Provisions says that: “If a later Act makes contrary provision to an earlier, Parliament, thought it has not said so, is taken to intend the earlier to be repealed. The same applies where a statutory provision is contrary to a common law rule.” I have no doubt that the Firearms Act 1968 which is a successor to a number of Firearms Acts going back to 1920 was intended to repeal the right of the citizen to bear arms. Accordingly, in my judgement, the applicant is governed by the Firearms Act 1968 and reference to the Bill of Rights will not assist him. The second point is the question of the secretary of State’s approach. His letter dated 2nd October 1997 reads as follows: “Thank you for your letter of 24 September 1997 about the Secretary of State’s authority to possess section 5(1) (aba) prohibited weapons under section 5 of the Firearms Act 1968 (as amended). The secretary of State gives careful consideration to the grant or renewal of authorities to possess prohibited weapons, and I regret to inform you that having considered all the circumstances of the application he has decided not to grant an authority. Applications for the authority of the Secretary of State are usually made by persons who wish to trade (manufacture, buy, sell etc) in prohibited weapons and/or prohibited ammunition, or who otherwise consider they have a need arising from the nature of their trade, profession, occupation or business. The Secretary of State normally regards these as acceptable reasons for making an application. It is not the policy of the Secretary of State’s authority to be granted for personal protection purposes. If you consider yourself to be at risk, I have to say that the proper agency for the protection of a country’s citizens is its police force. I can only suggest therefore that you contact your local police force and discuss the level of threat you feel yourself to be facing and the precautions you might need to take.” There was a further letter from the Home Office dated 30th April 1998 in which the Secretary of State said: “The Secretary of State gives careful consideration to the grant or renewal of authorities to possess prohibited weapons and I regret to inform you that having considered all the circumstances of the application he has decided not to grant an authority.” He repeats what was in the letter of 2nd October “Applications made for other reasons are given careful consideration, however unless there are exceptional circumstances involved, an authority will not normally be granted.” Mr. Burke says that that is a change from the previous letter in which they have set out a blanket policy not to grant the applicant permission for personal protection. He drew my attention to a letter addressed to a Mr. Berry, which says that it is the policy of the government not to allow possession of firearms for personal protection. Mr. Burke does not suggest that he has been under any threat which would give rise to the need for personal protection. Although a challenge can sometimes be made to a blanket policy which is operated without personal consideration, the letters appear to mean that the Secretary of State does consider the personal position, namely those who wish to trade, but he will not grant an authority for self-defence. In the instant case, it is clear that there is no threat to the applicant, so that if the policy were to be challenged, it is clear that the Secretary of State would not in any event grant permission in the instant case because there would be no good reason for it. For all those reasons, this is an application which I shall not grant because it would be doomed to failure if I granted leave. .................. IN THE SUPREME COURT OF JUDICATURE FC3 98/7400/3 COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEENS BENCH DIVISION (Mr. Justice Popplewell) Royal Courts of Justice Strand London WC2 Monday. 8th March 1999 Before: LORD JUSTICE PETER GIBSON LORD JUSTICE HENRY LORD JOSTICE MORRITT THE QUEEN -v- SECRETARY OF STATE FOR THE HOME DEPARTMENT Ex parte MICHAEL JAMES BURKE. (Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited 180 Fleet Street, London EC4A ZHD Telephone No: O171 421 4040. Fax No. 0171 831 8838. Officia1 Shorthand Writers to the Court). THE APPLICANT appeared in Person JUDGMENT (As approved by the Court) Crown Copyright LORD JUSTICE HENRY: Section 5 (1) of the Firearm Act 1968 makes it an offence if a person, without the authority of the Secretary of State, has in his possession a prohibited firearm. Until 1997 that section did not apply or the definition of "prohibited firearms” did not extend to small bore handguns, but they were added to the list of prohibited firearms by the amending Acts passed in 1988 and 1997. The 1997 Act, passed in the after-math of the tragedy at Dunblane, removed small calibre pistols from the list of exceptions to prohibited handguns. Mr, Burke, the applicant who has appeared in person before us today, has two such pistols, a Smith and Wesson and a Browning. They, as I understand him, had been taken from him under the Act that was passed post-Dunblane. It was no reflection on him. The Act applied to everyone in the country. He wants those pistols back. He applied to the Home Office for that, and he said this : . " I wish to claim my common law right possess pistols for my defence and therefore formally make this application to you for the necessary authorities. I remind you of your obligation under the Bill of Rights to respect the liberties of the subject". That application was refused by letter from the Home Office on 2nd October. That letter reads as follows: “Thank you for your 1etter of 24 September 1997 about the Secretary of State's authority to possess section 5(1) (aba) prohibited weapons under section 5 of the Firearms Act 1968 (as amended). The Secretary of State gives careful consideration to the grant or renewal of authorities to possess prohibited weapons, and I regret to inform you that having considered all the circumstances of the application he has decided not to grant an authority. Applications for the authority of the Secretary of State are usually made by persons who wish to trade (manufacture; buy sell; etc) in prohibited weapons and/or prohibited ammunition, or who otherwise consider they have a need arising from the nature of their trade, profession, occupation or business. The Secretary of State normally regards these as acceptab1e reasons for making an application. It is not the policy for the Secretary of States authority to be granted for personal protection purposes. If you consider yourself to be at risk, I have to say that the proper agency for the protection of a country's citizens its police force. 1 can only suggest therefore that you contact your local police force and discuss the level of threat you feel yourself to be facing and the precautions you might need to take”. There was further correspondence with the Home Office, and in answer to another applicant making a similar application, the Home Office said, in a letter dated 30th April 1998: " In effect, there are no circumstances in which you would be authorised to possess a pistol for personal defence in Great Britain and nor are there likely to be unless government policy changes. " Mr. Burke now seeks to challenge that decision by way of judicial review. He starts with the Bill of Rights. The Bill of Rights, as its title makes clear, is an Act declaring the rights and 1iberties of the subject and settling the succession of the Crown. The recital, when dealing with those rights and liberties, sets out the statutory background in relation to this. Under "disarming protestants", the recita1 says: “By causing several good subjects being protestants to be disarmed at the same time when papists were both armed and employed contrary to law." And then, when dealing with the subject's rights, it was declared in relation to “Subjects' Arms”: "That the subjects which are Protestant may have arms for their defence suitable to their conditions (then follow the crucial words) and as allowed by law." . That was the Bill of Rights, It was declaratory of the common law. It contained in it its own words of limitation, namely that the right to have arms for self-defence is limited by the words "and as allowed by Law". The law is a changing thing. Parliament by statute can repeal the common law. Parliament has since 1920 (and it may be earlier, but certainly since 1920) imposed limitations on the right to carry firearms, and one of those limitations is Section 5(1) which we are here concerned with. Where the Bill of Rights says that “ the Subjects may have arms for their defence suitable for their condition and as allowed by law”, "and as allowed by law means “and as allowed by law for the time being", and at this time you have to comply with the provisions of the Firearms Act 1968, section 5, as amended, if you wish to have a prohibited weapon; that is to say, you require authority from the Secretary of State. That is the first ground which makes Mr. Burke’s application hopeless. Even if that ground was not fatal to it, the submission is not entrenched; that is to say, what the law makes, the law can unmake. Mr. Burke suggested to us that Parliament has no power to alter the common law. That is a submission totally without substance. What the law makes the law can unmake. You now need the authority of the Secretary of State if you have a prohibited weapon. Mr. Burke cannot avoid that provision of the law. Mr. Burke then takes a third point. He says that the Secretary of State has wrongly fettered his discretion, in that he is refusing all who wish to carry arms for their personal protection. However, as the 1etter of 2nd October makes clear, he does make exceptions where there is a need from the nature of their trade, profession, occupation or business, but those exceptions are subject to his present policy, namely that authority shall not be granted to those who need them for personal protection purposes. That is a policy which the Secretary of State is entitled to have. There is nothing improper in him having it. It does not assist Mr Burke. Therefore, this application must be refused. LORD JUSTICE MORRITT: I agree. LORD JUSTICE PETER GIBSON: I would pay tribute to Mr. Burke for the clear and courteous way in which he has expressed his grievance at the refusal by the Home Office to grant him authority to hold his handguns. He has provided us with a skeleton argument and an affidavit. It is obvious that, although not a lawyer, he has put in a great deal of research to present to us documents in support of his argument. I have to say that his argument that he has a common law right to hold arms for his defence, which has not been validly removed by the Firearms Act, seems to me to be unsustainable for the reasons given by Lord Justice Henry. I, too, would refuse the application. Order: Application refused.