By Carlo Stagnaro & Dave Kopel
National Review Online. May 8, 2002 8:45 a.m. More by Kopel on Italy.
Unnoticed by the establishment media in the United States, Italy is taking big steps towards greater protection of fundamental human rights, as it looks to significantly change old laws that have infringed the right of self-defense.
In Italy, the Minister of Defense, Antonio Martino, recently announced his support for private gun ownership. "Gun control disarms law-abiding citizens, not criminals," he said.
Martino, who was a professor before becoming defense minister, observed that gun laws only affect the law-abiding, not criminals:
When gun-control laws were passed, I neither saw any member of the Mafia giving up his shotguns, nor any terrorist giving surrendering Kalashnikovs. Instead, I saw retired officers giving up their issue guns. Actually, we disarmed law-abiding citizens, and that resulted in leaving weapons in the hands of those who don't obey the laws.
Professor Martino's statement is the strongest ever uttered in favor of gun rights by an Italian minister since at least 1931, when modern Italian gun control was imposed by Mussolini's fascist regime. The Italian system is similar to what Sarah Brady has announced as her preferred American policy: "needs-based" licensing. A citizen must apply for a permit from the local prefect (for handguns) or to the chief of police (for long guns), and the official then decides whether he thinks the applicant "needs" the gun. Gun-carrying permits are very difficult to obtain; only 44,000 Italians are legally allowed to carry arms for personal defense.
Moreover, the parts of the Italian criminal code (dealing with "legitimate defense" and "unintentional excess") have often been interpreted by the courts against those who defended themselves or their loved ones against predators. The courts insist that the defense must be "proportional" to the aggression — so that if a man is using his bare hands to commit rape, the woman cannot fight back with a gun. Likewise, if your home is invaded by a gang armed with knives, the courts will not allow you to use a firearm against them.
A few months ago, Minister of Justice Roberto Castelli created a commission to revise the criminal code. The commission is supposed to recognize the right of the people to defend themselves, at least in their own home. Castelli said that "current laws should be revised, especially in those areas concerning actions taken by citizens in their own home." Carlo Nordio is the head of the commission. "There's a further, more serious and pressing problem," he wrote in the Italian daily Il Messaggero,
that is, the problem of legitimate defense by those who lawfully own a gun and are forced to use it to defend themselves, and then they are treated as if they were the aggressor. They are peaceful and honest citizens who, faced with a robber invading their home, shot him and perhaps killed him. The laws about those cases are vague and bungling...
Some Italians are heavily criticizing Defense Minister Martino for saying that people should be allowed to be armed. "I find that absurd," said sociologist Domenico De Masi. "The crime rates make America one of the worst countries in the world from that point of view. The American population is about five times the Italian one, but the number of prisoners is 26 times greater." Perhaps De Masi should have added that one reason that number of Italian prisoners is so low is that Italian criminals usually escape capture and punishment. In Italy, 80.7 percent of all crimes go unpunished and the culprit is not found — 96.8 percent of the thefts, 58.2 percent of the homicides, 84.6 percent of the robberies, and 64.3 percent of the kidnappings. Moreover, Mr. De Masi might have addressed the fact that the Swiss are much more heavily armed than Italians are, yet are also less violent. The 1994 Swiss homicide rate was of 1.32 per 100,000 people (among which only 0.58 were perpetrated with a firearm), while the Italian rate was 2.25 (of which 1.66 were perpetrated with a firearm).
Coming to Martino's defense was Alberto Mingardi, columnist for the conservative daily Libero: "Around the freedom to be armed a duet is played: civilization against barbarism. Martino stands for civilization." Vittorio Feltri, director of the same paper, pointed out that Italian laws "prosecute the crime of 'unintentional excess of legitimate defense,' while citizens and their properties are not safeguarded, since possessing wealth seems to be a crime worse than stealing it. They say that communism is dead; however, it left us with a heritage we were not yet able to get rid of."
Before the 20th century, Italy had a solid tradition of armed resistance — a tradition that fascism deeply harmed, and the socialist republic of the last few decades almost killed. The free people of Venice and the other Renaissance city-states were loath to allow their governments a monopoly of force. As Machiavelli explained in The Prince, "When you disarm your subjects you offend them by showing that, either for cowardliness or lack of faith, you distrust them; and either conclusion will induce them to hate you."
The founder of criminology, 18th-century scholar Cesare Beccaria of Milan, wrote:
False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary ones, which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty — so dear to men, so dear to the enlightened legislator — and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve to rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. They ought to be designated as laws not preventative but fearful of crimes, produced by the tumultuous impression of a few isolated facts, and not by thoughtful consideration of the inconveniences and advantages of a universal decree.
John Adams and Thomas Jefferson were both big fans of Beccaria and his 1764 treatise On Crimes and Punishments. Adams quoted Beccaria during his arguments in the 1770 Boston Massacre trial.
Thomas Jefferson admired On Crimes and Punishments so much that he carefully copied many lengthy passages into his "Commonplace Book" of favorite sayings. As Garry Wills notes in Inventing America, Jefferson used Beccaria as "his principal modern authority for revising the laws of Virginia." Among the passages the Jefferson copied was the above passage about firearms.
Beccaria was also a major intellectual influence behind the Eighth Amendment, barring cruel or unusual punishment. Beccaria reasoned that a penal system should provide punishment only severe enough to preserve security; any punishment above this level was a form of tyranny. The purpose of the criminal law was to protect "That bond which is necessary to keep the interest of individuals united, without which men would return to their original state of barbarity." Therefore, "Punishments which exceed the necessity of preserving this bond are in their nature unjust."
So in a sense, Italy's moves towards restoration of legal protection for the right of self-defense — and against unfair punishments for people who exercise this right — could be viewed as making Italy more like America. At the same time, we should recognize that America's Second and Eighth Amendments both draw important roots from the European Enlightenment in general, and from that Cesare Beccaria in particular.
As Beccaria, Jefferson, and Adams all understood, the right to protect your home and your family against an aggressor isn't a cultural preference; it is a fundamental human right, belonging to all people at all times — even though sometimes governments might disrespect this human right, as they disrespect other human rights. By moving toward reaffirming human rights for its people, Italy's government is removing the vestiges of fascist rule, and helping Italy reclaim its historic role as a model of civilization.
