A Comparative Legal Analysis: Gun Control in America (It’s Not all Guns and Roses)

Just to refresh your memory:

Columbine massacre, 1999: 15 people dead, mostly high school students.

Virginia Tech massacre, 2007: 32 people killed, 17 injured. One shooter.

Sandy Hook massacre, 2012: 27 dead, 20 of whom were children aged six and seven.

San Bernardino massacre, 2015: 14 dead, 21 injured.

Orlando massacre, 2016: 50 dead, many more injured. One shooter.

In America, the idea of possessing the right to bear arms is as old as the country itself. Enshrined within the Bill of Rights, the Second Amendment clearly states that “a well-regulated Militia, being necessary to the security of a Free State, the right of the people to keep and bear Arms, shall not be infringed.” Nowadays, gun control and reform within the United States is a topic that almost everyone, American or not, has an opinion on. In fact, America is so gun-obsessed that the number of babies being given gun-related names (including Pistol, Caliber, Magnum, Trigger and Gunner) is increasing at an alarming rate.

Generally speaking, the issue of gun control reform is a partisan one. While most Democrats are in favour of stricter gun control laws, Republicans are generally anti-reform, citing protection of their constitutional rights. However, giving the excuse that “we must protect our constitution” does not justify the huge impact that a lack of gun control has within America. On average, there are 11,200 gun-caused deaths per year, in comparison to Australia’s 200 per year. When the majority of Australians hear statistics like this, it is almost impossible for us to understand why the American government continue to allow this to happen, by not changing the legislation. Despite both being developed countries, the gun control regimes used in America and Australia sit at completely opposite ends of the spectrum.

While Australia had fairly lenient gun control laws prior to 1996, this was completely changed after the Tasmanian Port Arthur Massacre. In April 1996, Martin Bryant killed thirty-five people and wounded eighteen others using a semi-automatic weapon; the largest massacre in Australian history. Prior to this mass shooting, one of the main characteristics of Australian gun control was the disparity of legislation between the Australian states. However, after the massacre, the Federal Government implemented the 1996 National Firearms Agreement and Buyback program, which aimed to standardise gun regulation across Australia. The key ideas were a government-sponsored buyback of all semi-automatic weapons and parts associated with them, in addition to “the requirement for a separate permit for the acquisition of every firearm.” This law was widely accepted and understood as necessary by both the Australian population and government, and the legislation passed with very little opposition. The program has resulted in a dramatic reduction in gun-related murder and suicide rates, which have dropped by approximately 74%. While there were 13 mass shootings in the 18 years prior to the change in gun legislation, there have been none in the 20 years since.

However, after the Sandy Hook massacre, America’s National Rifle Association campaigned that it was these laws that meant that Australia “wasn’t a free country”, due to this restricted access to guns. But, when you examine the situation in America, I’d personally much prefer to live in a “less free” country, than a country where, in 2016, there have been more mass shootings than days in the year.

When you examine the gun control legislation in developed countries, most has been implemented as a response to a mass shooting, usually with a high casualty rate. The same cannot be said about legislation within America. In the US state of Connecticut in 2012, a man killed 20 students aged 6 and 7, 6 teachers and his own mother. This, which became known as the Sandy Hook massacre, is currently the third largest shooting in American history. After the shooting, President Obama attempted to implement minor (yet some would say logical and sensible) regulations to gun ownership. These included background checks for all gun buyers, a ban on assault weapons, and a ban on guns with magazines with a capacity higher than 10 bullets. The bill failed to get the 60 Senate votes required to pass, and thus nothing further was done federally on this issue.

It is intriguing how two countries who have a multitude of similarities can have completely opposite views on gun control. Thirty-five people die in a massacre in Australia, and not only is there overwhelming support for tighter gun regulation, but resulted in 650,000 guns being handed in. However, in America, twenty children died, but gun reform is “un-American”. In fact, the “solution” proposed by the Republican Party and the NRA was to relax carry-permit laws, thus allowing more weapons within schools, to “protect” themselves in the case of a shooter.

Despite politicians discussing the topic on a weekly, if not daily, basis, very little has changed about America’s gun control laws in the twenty years since Columbine.  The Constitution is arguably the largest obstacle in the case for gun-reform. For a long time, the Constitutional guarantee of the right to bear arms has been the fall-back reason for why people are anti-gun reform. And it is a good reason. To a point.

While the contemporary interpretation has been the right to bear any modern firearm, the historical definition of “arms” would cover little more than muskets; a highly ineffective form of protection if attempted to be used in society today. Additionally, the Amendment was intended only as protection when necessary for the “protection of a free State”. Remembering that the Constitution was written just after the War of Independence, where Britain and America fought for years over claim to the land, it can be seen that the sole intention of the guarantee was to protect citizens from the British military. Because of this, all arguments about the Second Amendment protecting the right to bear guns are open to interpretation. However, this doesn’t stop the majority of the population (and most recently the government as well) from supporting this common misinterpretation, and thus blocking all gun regulation from passing Congress.

In addition, the NRA plays too large a part in American politics for any reform to be successful. After Sandy Hook, when 90% of Americans wanted to implement a universal background check policy when buying a gun, no federal action was taken, due to the NRA’s influence. Many argue that this is because of their ability to fund campaigns. In the 2014 Congressional election, the NRA contributed to the campaigns of 211 elected Congressional members (of a total of 535). As it is so hard to get campaign funding in America, many politicians will continue to vote along the NRA’s lines, thus blocking any gun reform legislation, in an attempt to gain their funding at future elections.

We are now at a stage where, after the dreadful Orlando shooting only a few weeks ago, the world is calling upon the US to make changes to their laws. The Chief of the UN Human Rights Council, Zeid Ra’ad Al Hussein, has pleaded to the US to enact stronger gun legislation, to stop the killing of innocent citizens. He argues that while “irresponsible pro-gun propaganda suggests that firearms make society safer, when all evidence points to the contrary”. The pro-gun propaganda mentioned is a reference to claims made by the NRA. If these claims were true, the USA would have the lowest homicide rate among developed nations, given that it is a country with 300 million guns in the hands of civilians. However, the USA has the highest rate by a very large margin.

In addition, a “fun fact” for you: in the 2011 Norway Massacre that killed 77 people, the shooter Anders Breivik was unable to buy the high-capacity magazines that we wanted to use in Norway, due to their strict gun control legislation. So he went online and bought them from an American store, and was able to get them shipped to his house without issue.

“Fool me once: shame on you. Fool me twice: shame on me” is a rather relevant adage to the case of American gun reform. It is understandable that after Columbine, not much was done to reform gun control as society concluded it was the people, and not the access to guns, that caused the massacre. However, after the two largest school shootings in American history (Virginia Tech and Sandy Hook respectively) and an increasing number of incidents per year, it is incredulous that nothing has been done to reform gun control. Ultimately, the Australian model of gun control provides a tried-and-tested method of gun regulation for the American government to try; albeit on a reduced scale.

In a country where hunting has been part of the culture for centuries, finding the line between necessary reform and supportable reform is a tedious job. That being said, reform has to start somewhere. Strict, blanket, gun reform cannot be introduced on a society that has gun-love within its DNA. However, at this point, regulation on any scale is an improvement. While in a perfect world international law might be able to hold a solution to gun control; in reality state sovereignty is an impediment to universal gun legislation. Furthermore, as demonstrated, realistically, nations hold varying views on gun legislation. The question that remains is “where do we draw the line”?

 

Ellen Storey is a final year Political Science and International Relations student, and Secretary of the UWA International Law Club. Her hobbies include reciting entire episodes of Friends, and having more lipsticks than career prospects.

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