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35


THE LIBERTARIAN ENTERPRISE
Number 35, January 15, 1998

Guns, Crime and Freedom by Wayne LaPierre: Part Two

Book Review by Paul Birch
paul@paulbirch.force9.net

Special to The Libertarian Enterprise

         #12: "Enforceable rights for victims ... ". Although much of what LaPierre writes is true enough, his approach is again populist, not principled. A crucial omission is the word "alleged": the plaintiff may or may not be a victim; the defendant may or may not be an offender; that is what the court is to determine; it must not prejudge. Often it is the defendant who is the victim -- victim of a false and malicious accusation. It is essential that justice be even-handed; the rights of accused and accuser, offended and offender, are simply different faces of the same rights. Let's examine LaPierre's subpoints in more detail:
         (a) The right to justice and due process. Of course.
         (b) The right to be treated with fairness, respect, privacy and dignity, and to be free from intimidation, harassment and abuse throughout the criminal justice process. Reasonable enough; this is how everyone should be treated under law, including criminals. Note that this must not be taken as granting immunity from cross- examination or the stress of testifying in open court; any such bias in favour of the alleged victim would be grossly prejudicial to the rights of the accused.
         (c) The right to be present at all proceedings where the defendant has the right to be present. I assume this is not meant to relate to private consultations between defendant and counsel; otherwise, fine, if we are willing to accept a similar right of the defendant to be present whenever the plaintiff has a right to be present.
         (d) The right to be heard at any proceeding ... and
         (e) The right to be informed of all proceedings ... Again fine, so long as it cuts both ways. Remember, we don't know who the victim is until after the hearing (and not always then).
         (f) The right to a speedy trial or disposition and ... final conclusion ... [after conviction and sentence]. Fine, apart from the presumption of guilt in LaPierre's phraseology. Keep in mind the saw, "Justice delayed is justice denied". But this cannot override the right of appeal. It simply means that appeals must be held quickly.
         (g) The right to full restitution. This is the key to all justice under common law -- and it is to LaPierre's credit that he has brought it up, however wishy-washily. A just court, if it claims sole right to enforcement, must make immediate and full payment of restitution to any plaintiff, irrespective of any subsequent court proceedings; the offender's debt then being owed to the court, it is for the court to recover that amount from the offender and for the offender to make good the debt. If a plaintiff makes a false claim, that is of course an offence in itself, for which the court may proceed against him.
         (h) The right to confer with the prosecution. This is a bit muddled; if full restitution has already been made, the plaintiff is no longer a victim (the court is) and thus no longer a direct party to the action; still, such a conference is at the very least a due courtesy. And, once again: someone who complains is not necessarily a victim.
         (i) The right to be informed of each of the rights established for victims. Courts should naturally inform all those involved in a case of the relevant rights and procedures, without prejudging the issues.
         #13: "HIV testing for those arrested for sexual offences ... ". There is nothing in law or principle to make HIV any different from other diseases (such as leprosy, syphilis or influenza); to single out this disease is to appeal to the irrational fears of a public bombarded with media propaganda and exaggeration. It does LaPierre no credit. This is not to say that compulsory HIV testing after conviction may not have its place; but for an accuser to be given a general right of violating the accused's own person by (repeated!) compulsory testing is unacceptable -- indeed, outrageous. It would also violate the Fifth Amendment (against self-incrimination). Where now the Bill of Rights?
         #14: "Adequate prison capacity ... ". Nothing very startling here -- though I'd still say that if offenders were required to make full restitution in cash (and on persistent default were flogged until they paid up), there'd be little need for expensive prisons and "correctional facilities", especially if we made a practice of executing murderers who couldn't come up with the weregeld (or to be more precise, couldn't keep up with servicing the debt).
         But I'm wandering off on my own again.
         #15: "No release pending appeal ... ". This is an obvious enough suggestion -- or would be, if LaPierre didn't ruin it by claiming that "defendants should be required to waive their appeal rights as part of a guilty plea". If all this means is that you can't appeal a decision you explicitly agreed to, that's fair enough; but a defendant might also appeal on the grounds that he'd been lied to about what a guilty plea would mean (no jail, say, or a light sentence); or even that he'd been bullied or brainwashed into it. Such appeals are usually phoney, but we've no business denying defendants the right to make them (if they are prepared to bear the costs when and if they fail).
         #16: "No unsupervised furlough ... ". There's no necessity to deny leave to all "violent or repeat offenders", but it should only be permitted when the trial judge has expressly provided for it in his original sentencing. Again, sentences should mean exactly what they say.
         #17: "Progressive community punishment programs ... ". Socialist drivel -- anything with the word "community" in it is bound to be socialist drivel! When LaPierre talks about "mandatory payment of restitution to victims" I am in full agreement, but when he insists on "community service and work requirements to discharge fines" and "offenders [paying] their debt to society through community services" along with "effective supervision, including electronic monitoring" and "mandatory revocation of release for violations ... " the spectre of social engineering raises its ugly head again. If full restitution is to be made through a fine, that is it. The payment of that money is all that justice may demand. How the offender raises that money is his own affair (even if it is by crime, though since he can expect to have to pay for these further offences in their turn this would not be a particularly rational approach). He has no further "debt to society" to discharge; he may not in fairness be punished twice for the same offence.
         #18: "Protection against ... liability for ... self-defense ... ". LaPierre seems to be suggesting that so long as a citizen claims to have acted in self-defence he must not be prosecuted. This is the same fallacy as in #12. We cannot know whether the citizen has acted lawfully until the matter has been tested in a court of law (perhaps it was deliberate murder dressed up to look like self-defence). If you kill or seriously injure someone you really must expect to be prosecuted; at the very least there needs to be an inquest or hearing to determine whether an offence has been committed; otherwise we fail to do justice by your victim, who for all we know might have been blameless. Which is not to say that law-abiding citizens ought ever to find themselves waiting a year or more for the trial that will clear them (as happens all too frequently today).
         #19: "Laws to prevent criminals from collecting damages from a private citizen for injuries ... ". The same fallacy. That said injuries occurred during the commission of a crime will be a complete defence; but without a court judgement, based on evidence, we won't know if that's what happened. "Such lawsuits ... must be prohibited," says LaPierre. It is a fundamental principle of justice that anyone is entitled to sue anybody over anything at all.
         #20: "Effective laws to deter and punish stalking". More pandering. There are already laws -- have been from time immemorial -- against murder and assault and threats and trespass. Enforce them, or give people back the means of self-defence, and there will be no need for further statutes. For what is this "stalking", that cannot be subsumed under these common law offences? No more than passing along the public highway, in the same direction as somebody else, as every citizen has an absolute right to do! The potential for abuse of these stalking laws is enormous.
         Well now, I've jabbered on for much longer than I intended, without even touching on the good stuff: the chapters on Waco and Ruby Ridge, on media bias, on the death penalty, on international comparisons. So should you read this book? Yes, I think so. Treat it as a middle-of-the-road compromise by a not-too-principled statist conservative with socialist and authoritarian leanings and you'll pick up a lot.
         As for justice and the right of all men to bear whatever arms they choose for any honest purpose, you must look elsewhere.

Back To Part I


Paul Birch reminds us that Guns, Crime and Freedom by Wayne LaPierre was published in 1994 by Regnery Publishing, Washington.


It is moral weakness, rather than villainy, that accounts for most of the evil in the universe -- and feeble-hearted allies, far rather than your most powerful enemies, who are likeliest to do you an injury you cannot recover from.
-- Bretta Martyn http://webley.zq.com/lneil/lnsbooks.html


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