Compensation for Banned Handguns: Indemnifying ‘Old Property’
| DOI | http://doi.org/10.1111/1468-2230.00137 |
| Published date | 01 March 1998 |
| Author | Alan Story |
| Date | 01 March 1998 |
Compensation for Banned Handguns: Indemnifying ‘Old
Property’
Alan Story*
During the past decade, the private ownership of guns has become a contested
matter in Britain. After the horrific Hungerford massacre of August 1987 in which
a single gunman killed 16 people, the Thatcher government concluded that various
types of rapid-fire long guns and repeating handguns should be classed as
prohibited weapons and, hence banned.1The decision raised the practical policy
question: should owners of banned guns receive financial compensation for turning
in their weapons to the police for disposal? A December 1987 Home Office White
Paper took a firm stand against awarding compensation, stating that ‘as a matter of
principle it is undesirable and unjust to require the taxpayer at large to pay for the
removal from the public domain of weapons which are an acknowledged threat to
life.’2But this principle was never explicated, and, in coming months, the pro-gun
lobby and a phalanx of backbench Tories successfully convinced the Conservative
Cabinet, with little dissent from Labour, that seizing guns without compensation
was a dangerous assault on property rights and civil liberties.3So, reversing its
position, the government established a ‘buy-in’ scheme for guns4and paid out
millions of pounds in compensation to gun owners.
Nine years later, following the even more horrific Dunblane massacre of March
1996 in which 16 young school children and their teacher were gunned down in a
small Scottish town, and the 750,000-name Snowdrop petition campaign called for
a total ban on all civilian-owned handguns, a Conservative-led and then a Labour-
led Parliament further restricted handgun ownership and eventually banned all
privately owned handguns.5During the 1996–97 Parliamentary handgun debates,
however, no political party, no newspaper leader nor any legal or political
commentator that I read questioned the payment of compensation for the 200,000
guns banned by the legislation. Nor did anyone refer to the 1987 White Paper.
Instead, an unspecified ‘legal obligation’6to pay compensation for banned guns
became a naturalised policy assumption; the total bill for the 1997 legislation will
be at least £200 million and perhaps higher.
ßThe Modern Law Review Limited 1998 (MLR 61:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
188
*The Law School, University of Hull.
Sections of this paper were delivered to the Legal Theory and Practice section of the Socio-Legal Studies
Association conference at the University of Wales, Cardiff, in April 1997. For helpful discussions,
suggestions, and criticisms, I wish to thank Ann Diego, Roger Cotterrell, William Lucy, Mike Feintuck,
and Gerry Johnstone.
2Firearms Act 1968, Proposals for Reform, Cm 261 (December 1987). See also Douglas Hurd, HC
Deb vol 125 col 1111–1112 21 January 1988.
3 See eg HC Deb vol 125 col 1167 21 January 1988.
4 HC Standing Committee F col 369 10 March 1988.
5 The Conservative government banned handguns, excepting those of .22 calibre or less, in The
Firearms (Amendment) Act 1997. Labour’s Firearms (Amendment) (No. 2) Act 1997, extended the
class of prohibited weapons under the Firearms Act 1968 to include all small-calibre pistols.
6 Home Secretary Michael Howard, HC Deb vol 285 col 181 12 November 1996.
Yet this issue confronts a number of wider conceptual questions within traditional
property law discourse and, in particular, the contested applicability of that discourse
if one or more of the standard incidents of liberal private ownership — possession,
enjoyment or use, and transfer — are abrogated by state action. For example, when a
particular form of property, such as a handgun, loses a socially-sanctioned use, is
society required to compensate its owner because such a use was once permissible?
And on what basis: because title, expectation, and security, that is, the protection of
preexisting legal and moral claims, have trumping powers? In a similar vein, should
we apply the standard model of property transfers between private individuals, in
which a transfer without consent or payment of fair market value is considered
conversion or unjust enrichment (framed, as it is, by the moral sanction ‘thou shall
not steal’), to non-consensual transfers between the individual and the state? And
does it matter, for compensation purposes, if such a non-consensual transfer is
undertaken precisely to destroy the property as opposed to a transfer for use by a new
owner, such as occurs with compulsory purchase? Finally, what does the banning of
handguns telling us about the contingent nature of property itself and its temporality?
One way, among others, to unravel and reconstruct these questions is to
conceptualise handguns and various other forms of property within particular social
contexts as ‘old property’ and to argue, as I do in this article, that the state can ban or
seize such private property without the payment of compensation to its owner(s).7By
‘old property’ I mean property which is conceptually anachronistic, that is, out of
harmony with the present, and which creates, maintains, and reproduces relations
between peoples which are no longer recognised as legitimate or morally acceptable
by the bulk of the populace. The concept of ‘old property’, which appreciates that
property is a relation, not a thing, and a temporally specific claim which serves
human needs, not a timeless or perpetually-vested object or right, natural or
otherwise,8is, I suggest, a helpful analytical tool in deciding whether to award
compensation as a consequence of various forms of state action: banning property or
seizing property or abrogating various private property rights. Sometimes abolishing
more than one property incident, such abrogations by individual states — or by the
global community generally — could include a ban on possession (in the United
Kingdom, handguns, child pornography,9or knives in public places10),aban on trade
in that property11 (in the United Kingdom, combat and flick knives, ‘dangerous and
hooligan’ fireworks,12 child pornography, dangerous dogs,13 and oral snuff;14
internationally, the trade in ivory15), and/or a ban on use (nationally and inter-
7 The notion of ‘old property’ temporally inverts the approach to property developed by Charles Reich
in his often-cited article ‘The New Property’ (1964) 73 Yale LJ 733–787. By justifying, in
appropriate circumstances, the abrogation of individual property rights, the concept of ‘old property’
is demarcated from the privileging of property rights found in Reich’s analysis.
8 C.B. Macpherson, ‘The Meaning of Property’ in C.B. Macpherson (ed), Property: Critical and
Mainstream Positions (Toronto: University of Toronto Press, 1978) 1–3.
9 Criminal Justice Act 1988, s 160.
10 Criminal Justice Act 1988, s 139 and s 141.
11 Here I am including a loss of property itself as distinct from wider business losses resulting from the
banning or seizing of property.
12 For the property losses resulting from the June 1997 decision that banned so-called ‘dangerous and
hooligan’ fireworks, see most of the ‘non-recurring costs’ detailed in the ‘Compliance Cost
Assessment’ section of the ‘Consultation on Draft Fireworks (Safety) Regulations 1997’
(Department of Trade and Industry, 19 June 1997).
13 Dangerous Dogs Act 1991, ss 1–2.
14 See RvSecretary of State, ex p United States Tobacco International Inc [1992] 1 QB 353.
15 In June 1997, the absolute ban was replaced with a controlled legal ivory trade, revealing the
contingency of property and how a commodity can, within my analysis, move in and out of the
category of ‘old property’.
March 1998] Compensation for Banned Handguns
ßThe Modern Law Review Limited 1998 189
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