Gun ownership is not a right

Nearly 30 years ago I wrote a short article for the Human Rights Defender about the ‘right’ to own guns. In those days there wasn’t much to say. Even in the gun-crazy United States of America (USA), the courts had consistently ruled that the vaunted Second Amendment to the Constitution was no obstacle to regulation of firearms; its power was psychological and political, rather than legal. My article was prompted by the emergence of rights rhetoric from the Sporting Shooters Association of Australia (SSAA), part of the Australian pro-gun lobby, which had formed an alliance with the US National Rifle Association (NRA). This article briefly reviews how the relationship between gun ownership and human rights has fared since then, and where Australia stands.

History of gun 'rights' in the USA and Australia

Like the NRA, the SSAA had for many years succeeded in blocking improvements to our patchwork of gun laws by threatening to mobilise votes against any reform-oriented political party. In 1992, the Australian gun lobby crept closer to its US big brother by claiming there existed a right to bear arms in Australia. However, subsequent decades saw the two nations move further apart on gun control.

In 2008, that putative American individual right became real when the Supreme Court reversed its position and declared, based on the Second Amendment, that the law banning handguns in Washington DC was invalid.¹ Two years later the Court also struck down a handgun ban in Chicago.² While these were major victories for the pro-gun lobby, gun control advocates could draw some comfort from the Court’s observation that the Second Amendment is not unlimited and still permits a wide range of gun control measures. 

Meanwhile in Australia, the gun rights cause suffered a setback after the 1996 massacre of 35 people at Port Arthur, Tasmania. Then-Prime Minister John Howard secured consensus among all jurisdictions on the National Firearms Agreement (NFA),³ setting new minimum standards for all states and territories. The NFA’s main pillars were a ban and buyback of self-loading rifles and shotguns, registration of all firearms, and tougher licensing requirements including the obligation to prove a ‘genuine reason’ for having a gun. On the latter, the NFA declares: ‘[p]ersonal protection is not a genuine reason’.⁴ This is a crucial point of difference with the USA, where personal protection is a very common motivation for acquiring guns. Australia’s personal protection exclusion frames gun ownership as a privilege since arguments for the rights interpretation are grounded in a notional right to self-defence. In fact, the NFA’s opening paragraph affirms that ‘firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety’.⁵ A privilege, not a right. This principle is incorporated, expressly or implicitly, in our state and territory firearm laws.

Nonetheless, some pro-gun lobbyists continued to insist on an Australian right to own firearms, and at least one has sought support from the courts. Martin Essenberg, a former One Nation political candidate in Gympie, Queensland, protested the gun laws by inviting arrest, showing the police several guns that he held without a licence. He was convicted twice in the local court for unlicensed possession, and appealed unsuccessfully to the District Court. He then sought leave to appeal twice in the Queensland Court of Appeal,⁶ and twice in the High Court of Australia – all unsuccessfully.⁷ In all the proceedings Mr Essenberg relied on ancient sources of human rights. The Magna Carta of 1215, he said, entitled him to a trial by jury rather than a local magistrate. Further, the English Bill of Rights of 1688, guaranteeing the right of Protestants to have arms for self-defence, invalidated the Weapons Act 1990 (Qld) under which he had been convicted. Both higher courts denied him leave to appeal, since those two venerable documents, while influential, do not override laws made by parliaments in Australia.

Guns and human rights in international law

The convergence of guns and human rights has received considerable attention internationally over the past 30 years, particularly as the United Nations (UN) pushed for countries to cooperate in preventing gun trafficking and violence. The focus has been on the victims of abuses committed with firearms, rather than on ownership rights. Gun proliferation and misuse affect human rights directly through injuries, killings, rapes and threats; but also in a broader sense by creating a climate of insecurity and burdening the health and criminal justice systems

The early view of human rights violations in relation to guns was restricted to abuses committed by government officials. For example, if a police officer kills a civilian, the shooting might be a violation of the right to life guaranteed by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). To prevent such violations, the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials were adopted by the UN in 1990. Most litigation on human rights and guns has been about police shootings and arbitrary executions. 

However, international law has evolved to recognise that human rights violations can also be committed by private civilians: a civilian murdered by her husband has been denied her right to life under the ICCPR just as surely as if the killer had been a police officer. According to this broader view, international law obliges governments not only to refrain from committing human rights violations, but also to exercise ‘due diligence’ by taking reasonable steps to prevent violations committed by private citizens.⁸

This conceptual shift is particularly relevant for abuses involving guns, because 85% of the world’s more than one billion guns are in the hands of civilians; and most shootings involve only civilians, not state officials. 

In 2002, the UN Sub-Commission on Human Rights appointed a Special Rapporteur on the Prevention of Human Rights Violations Committed with Small Arms and Light Weapons (the latter phrase being UN nomenclature for guns). The Special Rapporteur conducted a global study and developed Draft Principles, endorsed by the Sub-Commission in 2006, providing the foundation for later deliberations by the UN Human Rights Council.⁹ 

The Special Rapporteur outlined States’ responsibilities to prevent armed human rights violations, both by their own agents and by armed non-state actors. According to Draft Principle 10, governments should adopt firearm licensing requiring specific reasons for firearm possession, training in gun use, and minimum criteria based on age, mental fitness, criminal record and history of domestic violence. Other suggested measures included the prohibition of assault weapons among civilians. 

Gun control as a human rights obligation has since been stressed in numerous resolutions, decisions, statements and reports by UN agencies, as well as regional bodies such as the Inter-American Commission on Human Rights and the African Commission on Human and Peoples’ Rights. Increasingly it features in discussions on gender-based violence. The UN Special Rapporteur on Violence Against Women first sounded the alarm in 1996 (shortly before Port Arthur); and has continued to insist that strong gun laws are a critical component of domestic violence prevention. The UN Secretary General’s 2018 Agenda for Disarmament highlights many ways that reducing firearms proliferation will advance implementation of the Sustainable Development Goals. The most categorical statement on guns and human rights came in the 2019 annual report of the UN High Commissioner for Human Rights:

‘Increased civilian access to firearms, including lawfully acquired weapons, leads to increased levels of violence and insecurity which negatively impact human rights… Given the potential harm and devastating impact of the misuse of firearms on the enjoyment of human rights, legislation and public policies concerning civilian access to firearms should be formulated and reviewed with a human rights lens.’¹⁰

Guns for self-defence?

The Special Rapporteur specifically addressed the principle of self-defence, which protesters like Martin Essenberg contend gives rise to a right of gun ownership. She noted that self-defence is widely accepted as an extenuating circumstance or grounds for an exemption from criminal responsibility after a defendant is charged. However, there is no support in human rights jurisprudence – nor in State practice, according to the survey responses – for personal self-defence as an independent right that States are obliged to uphold.

Further:

‘Even if there were a “human right to self-defence”, it would not negate the State’s due diligence responsibility to maximize protection of the right to life for the society through reasonable regulations on civilian possession of weapons… The State must consider the community as a whole, and not just the single individual, in carrying out its obligation to minimize physical violence.’¹¹ 

Thus, the legally enforceable right to guns for self-defence puts the USA at odds with other countries – and with international law.¹²

How is Australia faring?

These UN deliberations have yielded lists of minimum provisions for gun laws that protect human rights, including some measures from Australia’s NFA. Gun control in Australia is among the world’s strongest, but our national uniform scheme is vulnerable to erosion. There is no mechanism to stop states and territories from unilaterally changing their laws; and the gun lobby has substantial influence through minor parties that wield disproportionate power in our finally balanced state parliaments. For example, the NFA requires a 28-day waiting period for every firearm purchase, but several states have waived this requirement for a person’s second and subsequent weapons.

One area where Australia falls short of the UN recommendations is the commissioning of research to facilitate evidence-based policymaking. It continues to be very difficult in Australia to obtain data on gun violence and gun regulation, apart from number of deaths by gunshot (encouragingly, that number is now less than half the figure from 30 years ago). But we still need to know whether, and how, our laws are effectively controlling civilian access to firearms. For example, how are the laws being enforced? How many license applicants fail to qualify? How many licenses are cancelled, and for what reasons? I have been told anecdotally that the main reason for licenses being cancelled was domestic violence. Domestic killings are the most predictable category of homicides, especially given that a woman’s risk of being murdered triples if there is a gun in the home.¹³ Australia’s laws prohibit gun possession for domestic violence offenders, but flaws in information systems, enforcement mechanisms and police attitudes can still result in tragedies like the 2018 murders of teenagers Jack and Jennifer Edwards by their father in Sydney.¹⁴ 

Freedom of Information requests by Greens MP David Shoebridge have revealed some individuals in NSW amassing huge personal arsenals;¹⁵ how is that consistent with our supposedly strict laws requiring proof of genuine reason? What reason can a resident of Cremorne or Mosman, a few minutes from the centre of Sydney, have for owning 300-400 guns? Perhaps self-defence against King James II of England, as Martin Essenberg of Gympie might suggest. Australia can’t afford to rest on its gun control laurels – research and vigilant monitoring are our weapons against complacency.

Endnotes

1. District of Columbia v. Heller, 554 U.S. 570 (2008).
2. McDonald v. Chicago, 561 U.S. 742 (2010).
3. Council of Australian Governments (2017). National Firearms Agreement. This version includes additional provisions inserted in 2002 and 2012. https://www.resources.qld.gov. au/__data/assets/pdf_file/0010/1399510/17-257.pdf
4. NFA at [10].
5. NFA at [1].
6. Carnes v Essenberg [1999] QCA 339; R v Essenberg [2002] QCA 4.
7. Essenberg v The Queen [2000] HCATrans 297; Essenberg v the Queen B12/2002 [2003] HCATrans 836.
8. Eg See the UN Human Rights Committee’s General Comment 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, U.N. Doc. CCPR/C/GC/36 (2018). The obligation under international law to prevent gun violence is discussed specifically in relation to the USA in Sadat LN and George MM (2019). Gun violence and human rights. Wash. UJL & Pol’y 60 (2019): 1.
9. Her final report is A/HRC/Sub.1/58/27 (27 July 2006) and A/HRC/Sub.1/58/27/Add.1 (8 August 2006).
10.  A/HRC/42/21, paras 60, 62.
11.  A/HRC/Sub.1/58/27, para 34.
12. The same conclusion was reached in Jan Arno Hessbruegge’s comprehensive study: Hessbruegge JA (2017). Human rights and personal self-defense in international law. Oxford University Press.
13. Anglemyer A, Horvath T, and Rutherford G (2014). The accessibility of firearms and risk for suicide and homicide victimization among household members: a systematic review and meta-analysis. Annals of internal medicine 160, no. 2: 101-110.
14. McGowan M (2021). Murders of Jack and Jennifer Edwards by estranged father ‘were preventable’, NSW coroner rules. The Guardian, 7 April.
15. Chung L and Singhal P (2021). Instruments designed to kill: The suburbs where NSW keeps a million firearms in private arsenals, Sydney Morning Herald, 2 May.