The right to bear arms: Natural right or obsolete luxury?

Author: Stephen Heyer


Submission: Is a right to bear arms a fundamental and universal right of humanity?

Abstract

1.00 The right to bear arms is a 'complex' right like freedom of the press. The effects of both spread across many areas of society, but for the sake of compactness they are treated as though they are single, simple issues. The right to bear arms has traditionally been a sort of constitutional shorthand, depended on to indirectly safeguard sometimes unrelated civil rights.

1.01 Many people argue that it no longer fills that role, if it ever did, or that the protection offered is not worth the inevitable harm. If that is true, then we are still left with the problem of replacing the role of an armed populace with new guarantees of our civil rights. The Australian system seems particularly weak in that regard.

1.02 History, and the wording of the English and United States Bills of Rights shows that three major benefits were expected to flow from an armed populace. The first was plainly some ultimate limit on the power of a government become tyrant, the second was to aid in the defence of the state, and the third was self defence.

1.03 The fact that a minority, once empowered by weapons, was then difficult to suppress was probably seen as a mixed blessing. A cultural right to own arms for farming, hunting and sport seems to have been considered of secondary importance in England. In America however, many regarded that as an important right.

1.04 These are important issues, to be effective a Queensland Bill of Rights must address them. They are as important now as they have ever been, and involve much more than mere debate about personal arms. They should be debated individually and in combination.

1.05 The following provisions are suggested for inclusion in a Queensland Bill of Rights.

1.06 No government, or similar body, should possess the ability to easily enforce its will on an unwilling populace by force of arms, or other unjust means.

1.07 Individual people, groups and nations have the right to defend themselves, and some duty to defend the weak. The right to use violent means only applies when all reasonable efforts to avoid violence have failed, and then only the minimum force necessary is permissible.

1.08 All people have the right to endeavour to follow their beliefs, culture, traditions, and way of life, or one of their choosing. They must not however excessively interfere with the rights of others.

1.09 The people have the right to keep and use arms and other equipment for lawful purposes, subject to those reasonable restrictions necessary for public safety.

Overview

2.00 Definition: The right to bear arms is a difficult issue. We don't even agree on what is meant by the terms arms or weapons, normally equating them with personal firearms. A weapon can be a stick or a nuclear submarine, including such deadly weapons of opportunity as motor vehicles, as well as non lethal weapons such as tear gas and electric shock.

2.01 Nevertheless public attention keeps returning to personal firearms. This is natural enough as only the printing press had a greater effect on Western history. In this submission I will therefore sometimes use the terms arm, weapon and firearm interchangeably.

2.02 Overview: The right to bear arms is a divisive issue, and evidence that personality type and gender influences attitudes towards weapons as much as logic only makes matters worse. Examination of other issues involving greater public risk shows how much emotion dominates this debate. Alcohol, smoking and cars each cause far more deaths than civilian firearms, yet none produce the same emotional debate.

2..03 EARC's accompanying discussion of the issue Is a right to bear arms a fundamental and universal right of humanity? mostly revolves around the English Bill of Rights 1688 which provides that "....Subjects which are protestants may have arms for their defence suitable to their conditions and as allowed by law."

2.04 There is also reference to Amendment 2 of the United States constitution. This 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."

2.05 EARC's treatment of this issue does not addresses the full complexity implied by the authors of the English and United States Bills of Rights. They must have been well aware of the costs and benefits of an armed populace, but for the sake of brevity did not enumerate them.

2.06 We do something similar when advocating "freedom of the press". On its own, freedom of the press is of minor importance, it is the secondary benefits that make a free press worth the harm it causes.

2.07 History, and the wording of the English and United States Bills of Rights, suggests that three main benefits were expected to flow from an armed populace. The first was plainly some ultimate limit on the power of a government become tyrant, the second was to aid in the defence of the state, and the third was self defence. A right to own firearms for farming, hunting and sport seems to have been considered present but less important.

2.08 The bearing of arms itself was probably not considered of great importance. Modern understanding of innate human behaviour, evolution and prehistory suggests that this view may be conservative.

2.09 In today's terms, the right to bear arms deconstructs to something like the following:

2.10 No government, or similar body, should possess the ability to easily enforce its will on an unwilling populace by force of arms, or other unjust means.

2.11 Individual people, groups and nations have the right to defend themselves, and some duty to defend the weak. The right to use violent means only applies when all reasonable efforts to avoid violence have failed, and then only the minimum force necessary is permissible.

2.12 All people have the right to endeavour to follow their traditional beliefs, culture, traditions, and way of life, or one of their choosing. They must not however excessively interfere with the rights of others.

2.13 The people have the right to keep and use arms and other equipment for lawful purposes, subject to those reasonable restrictions necessary for public safety.

2.14 Firearms and violence: The effect the availability of firearms has on the rate of violence is inseparable from this debate. Most legitimate arguments against a right to bear arms hinge on hopes of reducing the rate of violent death.

2.15 Unfortunately decades of international experimentation with firearms legislation has only shown that in a moderately healthy society quite large changes in firearms laws in either direction have little effect on the rate of violent death. When the total overall death rate from all causes is considered the change is even less.

2.16 At least two reasons are obvious. One is that it is difficult to reduce the number of weapons below the level that people want for both legal and illegal purposes. Only totalitarian systems have had much success, and then have often only replaced private violence with state violence.

2.17 Another is that certain individuals tend to continue to engage in high risk activities until they are stopped by outside factors, often prison or death. This leads to a lesser reduction in the mortality rate than would otherwise be expected if access to firearms is reduced.

2.18 Research indicates that high risk groups tend to have (and cause) high rates of injury and death. It suggests that people with substance abuse problems or severe personal problems, mental illness, a lack of respect for their own or others safety, or who are under severe pressure have high rates of involvement in violent or suicidal incidents, and in motor vehicle, industrial, and similar types of accident.

2.19 There are even suggestions that high risk groups have higher mortality rates from all causes, not just the obvious. This would be an interesting line of research for someone.

2.20 Deeply unhealthy societies usually already have very strict weapons laws, not that it does them much good. In fact one of the first signs that a society is in trouble is often a tightening of weapons laws as applied to ordinary citizens, and a loosening of weapons laws as applied to government and private armed forces. In other words a proliferation of heavily armed police, military and private security forces. This often precedes any real statistical increase in violence.

2.21 Watching something very like this process happening in Australia over the last twenty years has left me deeply worried. However that is not part of this discussion.

2.22 Weapons misuse is one of those problems that can not be solved overnight, only worked on in the long term.

2.23 The militia: The other concern is whether a militia or an armed populace do more harm than good in times of crisis. Current events in Europe and Africa have raised this question again.

2.24 The European experience indicates that in conditions of total social breakdown and bitter ethnic struggle uncontrolled militias can do considerable harm. Nevertheless most of the damage seems to have been caused more by the regular government forces' heavy weapons, than the militias' small arms.

2.25 In my ideal world no one, including national armies, would be allowed weapons more powerful than bolt action rifles.

2.26 Where a strong militia was able to turn back the attacking regular forces, fighting tended to peter out. It was also noticeable that ethnic groups defended by a strong militia fared better than the those who were not.

2.27 Australia (thank God) does not face that level of conflict in the foreseeable future. Our situation is more like that envisaged by the authors of the United States and English Bills of Rights. They believed that the subtle threat of an armed populace would usually be enough to limit an aspiring tyrant's ambitions.

2.28 The African experience only proves that when people really want to be beastly to each other they can always find a way. They have been killing each other equally well with or without firearms.

2.29 At least the presence of guns lends a certain dignity to proceedings. It seems preferable to die in a gun fight, rather than be hunted down by a mob and burned to death in a tyre.

2.30 Allowing a community weapons is like allowing it unions and a free press. All can do a lot of damage, but this is balanced by considerations of culture and freedom, and one useful side effect. Their presence makes it very difficult to pretend there is nothing seriously wrong when a society is really in deep trouble.

Recommendations for a Queensland Bill of Rights

3.00 The following are suggested provisions for inclusion in a possible Queensland Bill of Rights. They attempt to safeguard freedoms ranging far beyond a mere question of arms, freedoms that in simpler times an armed citizenry had been expected to defend.

3.01 No government, or similar body, should possess the ability to easily enforce its will on an unwilling populace by force of arms, or other unjust means.

3.02 Democracy and coups: It is well noted throughout history that democracy and personal freedom survived best where an elite could not command weapons so superior to the common peoples', as to be able to enforce its will on an unwilling population.

3.03 When the high technology weapon of kings was the chariot, democracy was to be found in country too mountainous for chariots. When the new mounted knight in armour allowed the tyrants to project their force into the hills, the hills fell to feudalism.

3.04 Later an armour piercing weapon so simple and inexpensive it was affordable even by peasants (the gun) swung the balance back in favour of the people, where it was cemented by the printing press. Worryingly the main battle tank, air power (especially helicopters) and computers seem to be returning the balance of power to the aspiring tyrant.

3.05 The personal nuclear deterrent is probably not the answer. The alternative of limiting the type of weapons available to the state is made difficult by the demands of national defence. While some of this is clearly a federal matter, enough concerns state governments to need discussion.

3.06 Today this is probably less an argument for a shotgun in every cupboard than for a Swiss style militia, and where possible the banning of army and police access to certain weapons, devices and techniques. Mind you, as a Swiss style militia necessarily stores military weapons in private homes, it seems a bit pointless to ban sporting weapons.

3.07 Australia seems to have rather few safeguards against coups and abuse of power. Ninety years of domestic peace and stability have lulled us into a false sense of security. Unfortunately the world, and Australia is changing. It may be time we thought about putting a few locks on the doors of power, and taking out some insurance.

3.08 If we ever decide to become a republic, more will be involved than merely getting rid of the crown. A complete overhaul of our philosophy of government will be required. The current principle of parliamentary supremacy must be replaced by a carefully designed set of checks and balances, perhaps loosely based on the United States' system.

3.09 Individual people, groups and nations have the right to defend themselves, and some duty to defend the weak. The right to use violent means only applies when all reasonable efforts to avoid violence have failed, and then only the minimum force necessary is permissible.

3.10 National defence: Current military technology makes the ex civilian rifleman less important to national defence than in the past, at least under normal conditions. Things however may be different if Australia finds itself in desperate circumstances.

3.11 Given our reluctance to pay for or to organize an adequate defence force, we always face the (hopefully remote) possibility of finding ourselves in a desperate situation. Under such conditions people with some proficiency in bushcraft and the use of small arms must be quicker to train to reserve status.

3.12 There is also a long term social question. If one day every Australian develops a politically correct dislike of weapons and violence, who will defend us? It is rather too much to expect the whole world to become similarly enlightened at the same moment in time.

3.13 Self defense: Much as most people dislike the idea, self defence is occasionally necessary. Sometimes normal citizens do have to defend their families, luckily mere threat is usually adequate and deadly force is seldom necessary.

3.14 It would be unthinkable to remove this right from people altogether, especially at a time when law enforcement seems to be becoming less effective. Australian society is showing signs of the stress induced by high unemployment, falling living standards, increased inequality of wealth and structural change This makes it harder for the authorities to guarantee the safety of every citizen.

3.15 The only real solution is to fix the problems that are damaging our society. Unfortunately we don't seem to be willing or able to do that, so will probably have to try to adapt to a less safe society.

3.16 Naturally this does not mean an assault rifle in every glove box, it does however suggest that we have to change our thinking. For instance I believe there are now good arguments to allow the carrying of non lethal (tear gas etc) weapons, particularly by young women who are required to work at night.

3.17 This is also a very good reason for making mobile phones more affordable. A little tax foregone could well save lives and make people feel safer.

3.18 The laws regarding self defence could also do with a complete overhaul, some aspects seem quite foreign to natural human concepts of justice. For instance a clear distinction should to be made between an innocent person who is assaulted or threatened, and someone who is willingly involved in a potentially violent dispute.

3.19 It is also ridiculous and very dangerous for the assaulting party to be able to sue a victim if he is injured. If a victim uses excessive force in self defence that must be something the law, not the assailant takes up with the victim.

3.20 There is also a need for a "Good Samaritan law". This would prevent someone who comes to the defence of a person being attacked from later being sued by the attacker.

3.21 Justice and Law must always favour an innocent victim.

3.22 All people have the right to endeavour to follow their beliefs, culture, traditions, and way of life, or one of their choosing. They must not however excessively interfere with the rights of others.

3.23 Empowering minorities: While lacking the modern terminology, it is obvious that the authors of both the English and American Bills of Rights were aware that allowing any group weapons made it difficult to then suppress them. One has only to notice attempts in the English Bill of Rights to restrict the right to bear arms to protestants, to realise just how aware of this they were.

3.24 Historically this has been a useful safeguard of many groups rights, and as recent history shows, it is still essential. Unless we can replace it with something at once as effective yet gentler, we just have to accept it as one of the prices of freedom.

3.25 Cultural right to weapons: The generally accepted view of human evolution is that weapons have been an important feature of human evolution for at least three million years. Groups lacking weapon skills usually starved, were chased off their land, killed or enslaved.

3.26 The resulting fascination with weapons is built into human, especially male human genetics. This is clear from sources ranging from studies of early childhood development through paleontology, to the very passions displayed by both sides of this debate. To deny this drive is about as useful as trying to deny sex.

3.27 In particular ownership and use of weapons has deep cultural significance to the native and most of the immigrant cultures from which Australia was formed. To deny groups the right to follow their culture is contrary to our principles of civil rights and multiculturalism.

3.28 If you can not trust the ordinary people with weapons, then your society isn't worth much.

3.29 The people have the right to keep and use arms and other equipment for lawful purposes, subject to those reasonable restrictions necessary for public safety.

3.30 Lawful use: People have the right do all manner of sometimes dangerous things, and use all sorts of equipment including arms, provided they do not interfere with others excessively. This is naturally subject to reasonable restrictions where necessary to protect public safety.

3.31 Excessive restrictions are unjust and contrary to our whole tradition of freedom. For example the traditional consumption of alcohol, which is thousands rather than millions of years old, causes far more deaths of users and innocent bystanders than civilian arms. The even younger tradition of smoking is just as deadly.

3.32 The same argument can be used about private motor vehicles, though at least they are necessary, or so we tell ourselves. We tend to forget how many Australians managed without cars before the fifties.

3.33 Besides, excessive restrictions just don't work, the whole sorry marijuana episode demonstrated the problems of enforcing a truly disliked law on a strong group.


The material herein is copyright.
Any reproduction without the prior permission of the author is forbidden.
Copyright 1997 Stephen Heyer