Opponents of gun control in the United States have a powerful ally in domestic law, because their Constitution contains a right to ‘keep and bear arms.’ Since the Heller Supreme Court case in 2008, this has been interpreted as an individual right which can trump legislative gun bans.
In the context of the 2016 Presidential primaries, gun control is once again being hotly contested in the US, and Australia has been drawn into the debate. In 2016, then Prime Minister John Howard ramped up Australia’s already strict handgun controls by effectively banning private ownership of ‘long guns’ (especially [semi-]automatic and self-loading rifles and shotguns) and initiating a huge national buyback in the wake of the Port Arthur massacre. Spurious claims by US presidential hopefuls about the effectiveness of such measures have led him to defend this policy, which is one of his Government’s most important legacies. In his CBS interview (which, by the way, is not as entertaining as his fantastic one with John Oliver on the same subject), Howard said:
People used to say to me, ‘You violated my human rights by taking away my gun’, and I’d (say), ‘I understand that. Will you please understand the argument, the greatest human right of all is to live a safe life without fear of random murder’.
Q: So is there really a human right to own a gun?
No there isn’t. John Howard was probably just being polite. The US Constitution is alone (at least amongst democracies) on this one.
According to the preamble to the International Covenant on Civil and Political Rights (ICCPR), human rights ‘derive from the inherent dignity of the human person’ and are aimed at achieving ‘freedom from fear and want.’ Human rights are essentially the opposite of guns.
Amnesty International, as it happens, has called gun violence in the US a human rights crisis.
Even the pro-gun Independence Institute, which argues that gun confiscation has led to increases in human rights abuses in some countries, does not claim that there is a right to possess arms or defend yourself with them at international law.
Q: Isn’t it a government’s duty to keep people safe? What if they just want to defend themselves from criminals?
Well yes, governments have a duty under the ICCPR to ensure people are secure (article 9) and that they are not arbitrarily deprived of life (article 6). That’s what police are for (or, in extremis, the military). A government acting in accordance with its human rights obligations, along with criminological evidence, would seek to maximise the chances of personal safety for its citizens by minimising circulation of deadly weapons. The deadlier the weapon, the more control is likely to be justified.
In Australia, guns are not completely banned. The line has been drawn at rocket launchers, flame throwers, portable artillery assault rifles, sawn-off shotguns and (essentially) any other gun without a demonstrably legitimate purpose (such as target shooting, farming or hunting). There are also background checks and other precautionary measures.
Does this provide a 100% guarantee of safety? No – for example, in 2002 there was a tragic shooting event in which two people died right here at Monash University, just metres from the office in which I’m writing this post. The student had obtained his weapons legally through membership of a pistol club. Overall though, the chances of being killed by gunshot in Australia are very low – around 1/10th of the US rate. In countries such as South Korea and Japan, which have even stricter laws, the rates are an order of magnitude lower again.
Given that the right to self‑defence is not really an individual ‘right’ at all (legally speaking, it’s just a defence which negates what would otherwise be a violent crime), it does not make sense to prioritise it over gun control policies which are a reasonable, rational means of ensuring (or at least promoting) collective safety and security.
On the other hand, policies which seek to ensure security but which restrict freedom (broadly defined) unduly are anathema on an instinctive level for some. For example, one of our Senators portrays Australia as a ‘nation of victims’ when it comes to gun crime. On the whole, our political leaders after 1996 (like those in the UK after similar trauma) made an assessment that the majority of Australians would be willing to trade some freedom to defend themselves for greater collective safety, yet they have still taken a more libertarian approach than South Korea or Japan. All other things being equal, it could be argued that those nations are better fulfilling their ICCPR art. 6/art. 9 obligations in this regard, but as we know international law is not the only consideration in national policy-making.
Q: OK I get the picture – human rights law wants the Government to take care of the gun‑toting criminals…but what if I need to protect myself from the Government?
History has shown that only the rule of law can protect you from your Government. The police and military have more guns and almost infinitely more resources than you do. Even if you have your own militia and lots of guns, you cannot win.
Finally, it is worth noting that a growing number of nations (78 at last count) are now party to the Arms Trade Treaty, which links their gun sales to trading partners’ human rights records. This treaty represents a historic step in the struggle between human rights protection and the proliferation of guns.
Castan Centre for Human Rights Law 
5 responses to “What does Human Rights Law say about Gun Control?”
[…] to life, perhaps Australia might also consider lobbying other countries – notably the US – for gun laws that prioritise human life and […]
Mr Fletcher would have us believe only the “rule of law” can protect citizens from a government that violates the rule of law by murdering minorities or passes a law that allows it to start murdering minorities. He appears to be unaware of the American, French and Cuban revolutions, and the rebels who overcame the Rwandan government and their illegal death squads which murdered around one million men, women in children in a monstrous bloodbath in 1994 (many murdered with machetes and clubs to save bullets) while the rest of the world looked the other way. I remember the TV news reports at the time which showed the bodies of thousands of victims piled up by the side of roads and the UN abandoning the unarmed victims to their fate. Civilians have successfully fought off genocidal government forces and escaped their would-be murderers from antiquity to the modern day, notably in Europe and Russia during the Nazi Holocaust (e.g., Jewish partisans like the Bielski brothers).
There are many examples of civilians overcoming bad governments or warding off government death squads (soldiers and/or state militias) long enough to escape, sometimes with the assistance of an external government (e.g., British troops helped Armenian civilians targeted by the Ottoman Empire’s genocidal government during the First World War). In some cases the threat of a well-armed citizenry caused a bad government capitulate to the demands of non-violent protestors or revolutionaries rather than violently suppress them. Sadly this was not the case in China in 1989 (where ordinary people don’t have guns) when the government ordered the army to kill pro-democracy demonstrators in Tiananmen Square. Sadly some people (like Mr Fletcher?) prefer dead civilians to armed civilians. It seems to me that the bulk of an army should be part-time reservists as in Switzerland, not full-time professionals dependent on the government for their income and not representative of the general population.
Adam Fletcher a great job with his thought provoking opinion piece about gun laws in the US which anybody interested in gun control should read.
It should be noted that much of the gun violence in the US is a result of alienated young American men from the lower social spectrum, disproportionately blacks and Hispanics who suffer racism, have limited opportunities due to poverty and a lack of education and all too often derive a sense of power from the ownership and misuse of deadly weapons like guns and knives. Much more must be done to help them rather than rely on restrictions of objects like guns and knives.
The vast majority of gun murders in the US (and many other nations) are drug and gang related even though public shooting sprees by mentally ill people capture the headlines, which cannot be readily affected by gun laws as nations like Mexico have tough gun laws that have little impact on the gun murder rate or overall murder rate. Thus the importance of addressing the root causes of crime; notably poverty, a lack of education, limited opportunity, racism and alienation that often lead to substance abuse and mental illness.
The US Constitution does not give Americans an unfettered right to own guns otherwise the state bans on mental incompetents, felons and children owning guns would have been ruled unconstitutional. Thus it is possible to introduce a national gun licensing system as in Austria, Australia, Canada, France, Germany, Ireland, NZ, Switzerland and the UK.
In 2015 the US Supreme Court ruled that civil marriage is a constitutional right, but that did not make it unconstitutional for states to issue marriage licences as this right is not absolute (otherwise you could marry a child or both your parents). You can licence a right when that right is not absolute, as in Austria where private gun ownership is considered a right and licenses must be issued to citizens so long as they are not mental incompetents, felons or children.
As much as we might like to ban guns, including those used by security guards, police and soldiers, there is a legitimate need for private citizens to own firearms which are unrelated to sport hunting and target shooting (otherwise such people could use crossbows). Namely possessing the practical means of defence and as a democratic safeguard against tyranny and genocide.
It is unacceptable that the rich can have armed protection because they can afford to hire armed security guards while preventing ordinary people like Jill Meagher obtaining a non-occupational security guard license so they can possess the practical means to defend themselves and dependents they have a legal duty to protect like a child or disabled spouse.
Readers might like to know that the US murder rate has been falling for decades despite tens of millions of guns having been made during that period and many states having liberalized their self-defence laws by introducing permits that allow adults who are not mental incompetents or felons to carry a concealed weapon (typically a pistol but also Taser stun guns).
Over 10 million Americans now possess a CCW permit yet the US murder rate is half what it was 20 years ago (less than Cuba, Estonia and Fiji according to Wikipedia), in keeping with the prediction by John Lott (‘More Guns, Less Crime’). An inconvenient truth for anti-gun advocates who said the huge increase in such permits would markedly increase the US murder rate.
We can be proud that the gun laws introduced after the Port Arthur gun massacre 20 years ago helped reduce the incidence of gun massacres, just as we can be proud that there has not been a repeat of the Milperra bus crash (1989) that also resulted in 35 deaths as a number of measures were taken that helped reduce the incidence of bus crashes.
Thankfully the response to the bus crash was more measured than to the response to the gun massacre. If not it would have been the case that buses with a semi-automatic transmission (clutchless manual) would have been banned but not buses with manual transmissions. Most of the guns banned after Port Arthur were semi-automatic rifles but not manually operated rifles.
Why did the misfits who committed shooting sprees (typically criminals with a mental illness) not switch to using manually operated rifles after semi-automatic rifles were banned for non-occupational use? The reason was that a shooter licensing system was introduced nationwide so they could not readily obtain a gun, thus nothing to do with the action type.
Thus the irrational restriction of semi-automatic rifles is rightly repealed, just as an irrational restriction on semi-automatic transmission buses would rightly be repealed had this been introduced after the Milperra bus crush, though it is entirely sensible to retain a 10 round magazine capacity limit (which is akin to a speed limiter on motor vehicles).
Semi-automatic rifles are far better for people who are frail, sick, injured or have a disability (just as vehicles with semi-automatic transmissions are better for such people), thus should be legalized as failing to do so amounts to discrimination against such people. It is unethical to continue the irrational restriction of rifles that many such people need.
Semi-automatic rifles are legally available for non-occupational use in many nations including Austria, Canada, NZ and Switzerland which have uniform shooter licences nationwide, unlike the US where it is too easy for misfits to obtain a gun. All competent adults of good character must be allowed to possess such guns, not just police and the security guards who protect the rich.
In light of the increased terrorist threat all competent adults of good character should be able to obtain a non-occupational security guard licence so they can carry the same weapons security guards use in order to protect themselves and their loved ones. Had this been allowed prior to 1996 many of the victims murdered at Port Arthur might now still be alive.
Readers might like to know that two off-duty policemen were at Port Arthur when the massacre occurred but were not allowed to carry a pistol when off-duty so could not stop Martin Bryant leaving the Broad Arrow Café to murder another 15 people. It is likely that some of the tourists at Port Arthur that day were off-duty or retired security guards.
Nations like Switzerland allow competent adults of good character (including off-duty and retired security guards) to carry a concealed pistol so they can protect themselves and dependents that they have a legal duty to protect, while you can find out more about self-defence and defensive weapons by visiting the SVIS website (www.stalkvictims.info).
Widespread gun ownership is also a democratic safeguard that deters crimes against humanity, while it should never be forgotten that Australia’s first gun laws made it a crime to sell guns to Aboriginals in order to facilitate ethnic cleansing and mass murder, and that Australia’s biggest gun massacres involved land stealing settlers and authorities slaughtering Aboriginals.
By refusing to acknowledge this misuse of gun laws and apologise for them our governments are complicit in these crimes. These governments also facilitate the murder of good citizens like Nannette Mikac and her two young daughters Alannah (6) and Madeline (3), and stalk victims like Jill Meagher, by supporting laws that make it illegal for ordinary adults to own a pistol for defensive use.
A key problem is that many people who become politicians love power and have psychopathic tendencies, thus naturally want to control (thus disempower) others. Research by Dr. Lisa Marshall found that many politicians have personality traits in common with psychopaths; notably a lack of compassion for other people whom they want to control to service their interests.
Free adults have an implied right in the federal Constitution to possess the practical means with which to fulfil their social duty to defend liberty and vulnerable minorities, which has primacy over lesser laws that unreasonably infringe on this right; while you can find out more about the militia and small arms by visiting the MIS website (www.militia.info).
More Americans are realizing that psychopathic politicians like Donald Trump and his xenophobic supporters are as great a danger as the religious extremists who populate terrorist groups like ISIS, thus are arming themselves. We must have the courage to follow their lead if we care about minorities in order to deter and if necessary stop crimes against humanity like ethnic cleansing and genocide.
If you reflect on the millions of people brutally killed in the Holocaust and the killing fields of Cambodia and Rwanda you may come to realize that ‘never again’ means having the courage to defend humanity, even at great risk to yourself. This means possessing the practical means to help stop crimes against humanity and in so doing help deter such crimes.
In closing, you might like to read ‘Gun Ownership and Human Rights’ by David B. Kopel, Joanne D. Eisen and Paul Gallant (Brown Journal of World Affairs, Winter-Spring 2003, Volume IX, Issue 2) which explains the need for an armed citizenry.
Howard told the right thing. I do appreciate with him. Human rights completely opposite site of guns. I think more guns more opportunity to do crime. I want to thanks Howard for sharing informative rules of human rights law.
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