IRELAND ON THE BRINK

A decades-long battle for firearm freedom could soon end in the worst way possible for Irish gun owners.

America's 1st Freedom, April 2011

By Dave Kopel

Does gun registration lead to gun confiscation? In Ireland, like most other places it has been tried, the answer is “yes.” Ireland’s handgun owners defeated prohibition once before, and their fate now is in the hands of the courts.

A Long History Of Freedom Banned

Infringements on the rights of the Irish can be traced back to the centuries of rule of Ireland by Great Britain. For eight centuries the Irish people never consented to English rule, and they repeatedly attempted to regain their independence by force of arms.

Beginning in the late 17th century, the rule of the British, and of those Irish Protestants who allied with the British, was consolidated by the “Laws in Ireland for the Suppression of Popery,” which were commonly called the “Penal Laws.” A 1695 statute, titled “An Act for the better securing the government, by disarming papists,” forbade arms and ammunition possession by Catholics.

Further, “No person making fire-arms, swords, knives or other weapons shall take or instruct as an apprentice any person of the popish religion.” Informers who told the government about Catholics with arms would get half the fine as a personal reward. Any judge who even once refused to enforce the arms ban would lose office. A 1739 statute mandated that law enforcement officials conduct annual searches for arms possessed by Catholics in their jurisdiction. (The texts of these statutes are available at http://library.law.umn.edu/irishlaw/weapons.html.)

Prohibited from owning or carrying firearms or edged weapons, many Irish Catholics began carrying shillelaghs, walking sticks well suited for use as cudgels.

During the 19th century, many of the formal legal discriminations against Catholics were removed. Early in that century, the arms ban for Catholics was replaced with a requirement that the possession of firearms and swords was outlawed for everyone in Ireland, unless the person was issued a license and identity of the particular sword or firearm was registered at the person’s local town hall and also listed on the license document. The system allowed firearm possession only by persons considered politically reliable.

In 1920, the British government imposed a similar system on Great Britain itself, again because of political concerns, although the government deliberately lied to the public and falsely claimed that there was a tremendous wave of gun crime. (For the history of the British law, see http://ssrn.com/abstract=1083528.)

At this time, the Irish were fighting for independence in the 1919-1921 Anglo-Irish War. This time, they prevailed. Pursuant to the Anglo-Irish Treaty, Ireland became a self-governing dominion of the British Empire (similar to Canada). Later, Ireland withdrew entirely from its political association with Great Britain.

Under the treaty, six counties in Northern Ireland, which has a majority Protestant population, were allowed to vote on whether to become part of the new Republic of Ireland, or to remain part of the United Kingdom. The six counties chose to stay with the U.K.

Although the Dáil Éireann, Ireland’s legislature, narrowly voted to approve the peace treaty, some hard-line elements in Ireland were so upset about the six counties that they commenced a civil war against the new government. The Irish Civil War lasted nearly a year, with the insurrection finally suppressed in May 1923.

Perhaps because of the influence of the Civil War, the gun laws of the new Republic retained many of the worst features of the old laws that the British had imposed. The Firearms Act, 1925 declared that no one can possess a firearm unless one has been issued a firearm certificate, and a certificate will only be issued if the police believe that the applicant has a “good reason.”

The government’s definition of “firearm” is as broad as any in the world, covering any device with muzzle energy greater than one joule (0.74 foot-pounds). This includes every air gun as well as paintball guns. In the United States, only New Jersey rivals this ridiculous definition. The Irish law was even more repressive than its 1920 British counterpart, which at the time did not apply to shotguns and air guns.

During the late 1960s, a terrorist organization calling itself the Provisional Irish Republican Army launched a campaign against Northern Ireland, and also carried out attacks on the island of Great Britain. PIRA allied itself with international terrorist organizations of the extreme left and received support from tyrants such as Libya’s Moammar Qaddafi. PIRA also had supporters in the United States and in the Republic of Ireland.

While PIRA’s international terrorist connections helped provide it with guns, PIRA also armed itself by stealing guns in the Republic of Ireland, especially from farmhouses in counties that bordered Northern Ireland.

In 1973, the An Garda Síochána, or Irish police, used their gun registration lists and ordered all owners of handguns and centerfire rifles to submit the guns for ballistics testing. The police promised the guns would be returned a few weeks later, after the testing was complete.

Instead, the police simply confiscated all the guns.

In 1998, the signing of the Good Friday Accords finally ended the troubles in Northern Ireland. Over the next several years, PIRA surrendered their weapons, and former members and supporters now participate peacefully in the political process through the Sinn Fein Party. SF is a minor party in the Republic of Ireland, but it is the second-largest party in Northern Ireland.

The Good Friday Accords ended any plausible justification for the police to keep the confiscated guns. Notably, the gun confiscation had never been authorized by the legislature.

Modern Day Gun Control

So when pro-rights activists brought a test case, the Irish courts in 2004 agreed that the police could not refuse to issue handgun certificates. And thus the Irish began acquiring handguns again.

Under the Irish system (which continues to mirror Great Britain), firearm certificates are not issued for self-defense, but only for sporting purposes. Handgun hunting is not allowed. Still, at least target shooters were able to obtain handgun certificates.

One of the effects of a repressive system of gun licensing in both the Republic of Ireland and in the United Kingdom is to gradually diminish the number of people who own guns and participate in the shooting sports. When you put up bureaucratic barriers to a sport, you will succeed in discouraging some people from trying or continuing that sport.

So after centuries of gun restrictions in Ireland, gun owners are a small percentage of the population, with little political clout and easy targets for demagoguery.

In a nation of 4 million people, Ireland has only 230,000 licensed guns, including air guns and paintball guns. There are only about 1,800 licensed handguns. Gun misuse by these licensees is essentially nil.

Particularly in some rough neighborhoods in Dublin and Limerick, Ireland has a growing problem of armed violence, the worst of which is perpetrated by drug gangs fighting turf wars. Of course, these gangs do not obtain their weapons from gun stores in Ireland; they obtain guns from the same international black market that supplies them with drugs.

However, Irish politicians—having little success in suppressing the drug gangs— apparently decided that they could convince the public that they were tough on crime by persecuting legal gun owners.

In the Criminal Justice Act, 2006, Ireland’s already-harsh gun laws were made even more so, copying the latest features of the U.K.’s anti-gun laws.

In 2009, Ireland’s Justice Minister Dermot Ahern denounced the “gun culture” in general, and the National Rifle Association of America in particular. He pushed major new gun restrictions through the legislature.

It is now illegal to practice “practical or dynamic shooting,” which is defined as any event that simulates combat.

For all gun owners, the required application form is now very long—an applicant must supply a firearm training certificate, an authorization from a medical doctor, mental health records and character references.

All “firearms” (including air guns) must be stored in safes.

Ahern also convinced the legislature to outlaw all handguns except .22 rimfires having a magazine capacity of five or less rounds. Under the law, no new certificates for other handguns would be issued, but as of November 2008, those who held certificates for other handguns would be allowed to continue to renew them. Firearm certificates are valid for three years.

Disregard For The “Law”

Once again, though, the police have begun inventing their own law. In 16 out of 28 police districts, the chief superintendent of the force (who is a political appointee) has issued orders to refuse all certificate renewal applications for centerfire handguns. Nationally, about 80 percent of handgun certificate renewals have been denied.

Expressing a typical attitude, Chief Superintendent John Kerin, of Kerry, said that centerfire handguns “are to kill people and to defend people,” and thus, “there should be no guns of this type in the hands of civilians. I don’t believe target shooting is a good and sufficient reason.”

Even members of the International Police Association Pistol Club (composed of current and retired law enforcement officers) were denied certificate renewals and were unable to compete last summer in the European Police and Fire Games in Valencia, Spain.

Under the law enacted by the police, application denials can be appealed to a district court, and so far more than 80 percent of these appeals have succeeded. In Ireland, a district court is a low-level court that hears licensing cases of all sorts. Because district court decisions cannot be cited as precedents, a district court decision in favor of one individual’s certificate application does nothing to require that the superintendent obey the law in regard to other applicants.

The district court cases are expensive because the police bring in “expert” witnesses (essentially to share their “expert” view that no citizen can have a good reason to own a centerfire handgun), so applicants who hope to succeed must hire their own experts.

Further, some district court judges are so closely networked with the police that they will uphold certificate denials even when plainly in violation of the law—such as a denial that states no reason for the denial.

To address the problem, lawyers have assembled eight test cases that have been fast-tracked to the High Court. Ireland’s High Court is below the Supreme Court, and above the district courts; it has original jurisdiction in some civil cases. These test cases, each involving a superintendent who is refusing all renewals, are intended to provide nationwide guidance about applying the handgun licensing law.

High Court cases are expensive, often requiring a quarter-million euros (nearly $350,000 U.S.) in legal fees. The test cases are being financially supported by the National Association of Regional Game Councils, Ireland’s umbrella organization for gun clubs. 

The precedents will be important not just for Ireland’s remaining handgun owners but for all gun owners. If the police can get away with refusing to issue certificates for handgun renewals, they could easily do the same for long guns.

Interestingly, the blanket refusals are contrary not only to the gun laws, but to laws governing police conduct, such as the requirement that licensing decisions be made in writing, with an explanation for the reasons for the decision regarding the particular individual. Likewise, coordinated blanket policies, such as the one being applied by 16 of the 28 police offices, are illegal.

Not surprisingly, the superintendents are using every available legal trick to try to slow down the High Court’s consideration of the test cases.

Already the government’s legal costs for defending the illegal refusals to issue certificates have been an estimated 20 million euros (equivalent to about $26 million U.S.). That’s a lot of wasted money in a small country where the government has been forced to make harsh tax increases and drastic cuts in essential services because the Fianna Fail prime minister in 2008 foolishly guaranteed a 100 percent bailout for all bank deposits. That bailout of banks that made reckless loans during a real estate bubble is crushing the Irish economy and has resulted in the government itself getting a bailout from the European Union, requiring further draconian cuts in spending.

Even with a victory in the High Court, handgun owners will be able to keep their guns only if they can prove that they have competed and will continue to compete in a handgun sport, the rules of which do not allow .22 caliber handguns. Individuals who simply use their handguns for personal target practice, without competing in a sport, will not be allowed to keep their guns.

Sidebar

A Glimmer Of Hope

Bleak as the situation is for handgun owners in Ireland, there has been some progress on civil rights in recent years. America’s 1st Freedom has covered the case of Tony Martin, the British man who was sent to prison because he shot a burglar. Public outcry in England led to reforms in English self-defense laws, broadening the conditions under which use of force is allowed.

A similar case transpired in Ireland. After Pádraig Nally, an elderly farmer in County Mayo, shot and killed a burglar, Nally was convicted of manslaughter and sentenced to 11 years in prison. The burglar, John Ward, had a long criminal record and a history of violence; at the time of burglary, he was out on bail for a knife attack he had recently perpetrated.

Nally’s conviction was appealed to the Supreme Court, where his attorney argued that a person in fear of his own life should be able to use whatever force is needed to save himself. The Supreme Court ruled in his favor, and Nally was released from prison, having served 10 months.

In response, the legislature passed a self-defense reform that took effect in December 2010. The Home Defense Bill specifies that victims of home invasion can use “reasonable” force in defense of themselves and their homes. Depending on the particular circumstances, deadly force can be considered “reasonable.” In the home, there is no longer a requirement that a crime victim must retreat rather than use force.

The reform was supported by the Association of Garda Sergeants and Inspectors, and by Rural Link, a network of rural community organizations.

Even so, using a firearm for self-defense will not be easy. The 2009 amendments to the Firearms Act require that guns be securely stored in an approved safe. Getting the gun out of the safe in time to protect oneself could prove impossible for many victims.

Further, the certificates issued for pistols and for some rifles state that the gun can only be used at a certified range. So a handgun or rifle owner might not be prosecuted for shooting the violent intruder, but the owner could still be prosecuted for using the gun in violation of the certificate terms. Shotguns, which constitute more than three-quarters of the Irish gun supply, do not have range-only restrictions on their certificates.

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Clarifiation:

A firearms policy expert in Ireland has provided the following information about the 1972 gun confiscation:

The 1972 temporary custody order was enacted as a consequence of IRA targeting individuals who owned lawfully registered firearms. The piece of legislation used was a 30 day temporary custody order to be used in times of civil unrest, in itself flawed, they took the firearms in at the end of the licensing period and once the 30 day temporary custody order expired they simply refused to allow anyone license the particular firearm held in the custody of the state, there was no ballistic testing legislated for at that time. They then held on to the firearms for 34 years! Until the famous high court action.