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GUN OWNERSHIP IS NOT A RIGHT REBECCA PETERS AO The efforts Rebecca has gone to in her fight to prevent gun violence is evident through her being a recipient of an Officer of the Order of Australia in 2007. Prior to this Rebecca received the Australian Human Rights Medal for her advocacy on law reform. Not only has Rebecca had a significant role in gun law reform in Australia but she also focuses her attention on helping survivors of gun violence in Guatemala. Rebecca served as a Director of the International Action Network on Small Arms from 2002 to 2010.
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 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.
