With mass shootings this summer at a Walmart in El Paso, a California garlic festival, and in Dayton’s entertainment district, Americans can justifiably ask whether they are safe in any setting. A related question is whether people have the right to be safe in their communities. Do children have the right to attend school without fearing a mass shooting?
Debates over gun policy take place on two major fronts. First, there are the scientific arguments as to whether gun ownership levels in an area, gun carrying, or the presence of guns in the home enhance or detract from public or personal safety. Most of the science in this area indicates that raising levels of gun ownership is detrimental to public safety overall.[i] Certainly, there are instances in which guns are used successfully in self-defense but these cases are outnumbered many times over by those in which guns are used to commit crime, to threaten or intimidate others (including domestic partners), or to commit suicide. Consider an FBI investigation of active shooter incidents. Despite the fact that there are 120 guns for every 100 Americans, just one of 160 of these incidents studied by the Bureau was stopped by an armed civilian.[ii]
The second front on which the gun debate is waged relates to civil rights. This debate has largely been one-sided with gun rights advocates and the gun lobby frequently thwarting the passage of gun laws on the basis that the laws in question violate their Second Amendment rights.
The Second Amendment was interpreted historically by the courts as the right to bear arms within the context of militia service. For example, in United States v. Miller (1939), two defendants who had been prosecuted for failing to register and pay a tax for possessing and carrying a sawed-off shotgun across state lines argued that such requirements under the National Firearms Act violated their Second Amendment rights. The US Supreme Court ultimately ruled that such a weapon had no role in an organized militia and was therefore not protected by the Second Amendment.
Following a decades-long campaign by the National Rifle Association to promote the view that the Second Amendment guaranteed a right to bear arms to individuals outside of militia service—a view characterized by former Chief Justice Warren Burger as the greatest fraud on the American public—the US Supreme Court did rule in the 2008 Heller decision that individuals had the right to own an operable gun in the home for protection. However, writing for the majority in the 5-4 decision, Justice Antonin Scalia—a hunter and a conservative—made it clear that this right was not unlimited and that laws regulating the carrying of firearms, denying gun ownership to felons and the mentally ill, and prohibiting the carrying of dangerous and unusual weapons did not violate the Second Amendment.
The militia view of the Amendment does not recognize the “right to keep and bear arms” as an individual right at all and, hence, is not an impediment to laws that would restrict gun ownership outside of militia service. The Heller decision, too, leaves a great deal of room to regulate guns. In fact, since Heller, an overwhelming majority of Second Amendment challenges to federal, state, and local gun laws have been rejected by the courts.[iii] Still, the NRA’s campaign to sell the narrative that individuals have an absolute right to possess virtually any firearm has altered public opinion and has led to endless debates about how limited or expansive is the right to bear arms.
What gets lost in these debates about gun rights is the vast majority of Americans who are not gun owners or who are otherwise concerned about public safety. What about their rights to feel safe? What about the rights of children who are terrified to go to school? What about the right to speak one’s mind or to enjoy a night out without intimidation by people carrying guns? These are not academic questions as the US has the most armed population in the world. The US is also an outlier, relative to other high-income countries, with regard to the permissiveness of its laws in relation to gun carrying and the ownership of military-style weapons. In addition, with one hundred Americans dying from gunfire and one mass shooting each day, the US is exceptional with regard to its high level of gun mortality. Communities of all sizes are affected and marginalized communities suffer disproportionately.
While the rights-based debate rages on about the meaning and scope of the Second Amendment, the right of the public as a whole to be safe from gun violence has been ignored. The absence of attention to the public’s right to safety is surprising given that the US has signed or ratified a number of human rights conventions that can be applied to gun violence. Article 3 of the Universal Declaration of Human Rights affirms that “Everyone has the right to life, liberty and security of person.”[iv] The International Covenant on Civil and Political Rights states that no person “shall be arbitrarily deprived of his life (Article 6).[v]
The US has also signed the International Convention on the Elimination of all Forms of Racial Discrimination; however, African Americans have exceptionally high levels of gun mortality relative to the rest of the population, are disproportionately the victims of police-involved shootings and of vigilante-type shootings enabled by the Stand Your Ground laws passed by half the states. While the US has signed the Convention on the Elimination of all Forms of Discrimination Against Women, the country has also been slow to protect women in the US as they are far more likely to be murdered by gunfire than in other advanced countries. An abuser’s access to guns increases the risk of death to women by five-fold, yet laws generally allow men with a history of violence to get around background checks by purchasing guns on the private market, permit abusive boyfriends to own guns, and fail to require the surrender of guns by those who threaten women. The US has signed but not ratified the Convention of the Rights of the Child. Still, US children and teens are 32 times more likely to die of a gun homicide and 10 times more likely to die of a gun suicide or accident than their peers in the other high-income countries combined.[vi]
The human rights group Amnesty International argues in a 2018 report, In the Line of Fire, that the US has breached its commitments under international human rights law. AI writes: “The USA has failed to implement a comprehensive, uniform and coordinated system of gun safety laws and regulations particularly in light of the large number of firearms in circulation, which perpetuates unrelenting and potentially avoidable violence, leaving individuals susceptible to injury and death from firearms.”[vii]
AI further notes that, as part of the right to life and other human rights, the responsibilities of nations to prevent gun violence requires: 1) restricting access to firearms, especially on the part of those at an elevated risk of misusing them; and 2) implementing violence reduction measures where firearm misuse persists. The human rights group asserts that nations should establish robust regulatory systems, including licensing, registration, restriction of certain weapon types, safe storage, research, and policy development. Nationally, the US has done little or nothing in relation to any of these policies and has seen Congress, at the behest of the NRA, suppress funding for research dating back to 1996. Amnesty notes that countries not only have obligations to protect the life of individuals from state agents but from actual or foreseeable threats at the hands of private actors as well. Violence is especially foreseeable in low income neighborhoods with persistently high levels of violence, poor public services, and policing that may not comply with international standards.
is time to recognize public safety as a human right and for the US to adopt
national policies, such as the licensing of gun owners, restrictions on gun
carrying, and a ban on weapons of war.
Consistent with the notion that public safety is a human right, I have
drafted A Declaration of the Right of
Americans to Live Free from Gun Violence—please visit: http://thomasgaborbooks.com/a-declaration-of-rights/. I’m hoping
that different levels of government and groups concerned about gun policy will
endorse the Declaration and issue proclamations asserting that safety from gun
violence is a human right.
[i] For a review of the vast body of research on these matters, see T. Gabor’s Confronting Gun Violence in America (2019) or David Hemenway’s Private Guns, Public Health (2006).
[ii] FBI, A Study of Active Shooter Incidents in the United States Between 2000 and 2013.
[iii] Giffords Law Center, Second Amendment Basics; https://lawcenter.giffords.org/gun-laws/the-second-amendment/second-amendment-basics/
[iv] Universal Declaration of Human Rights; https://www.un.org/en/universal-declaration-human-rights/
[v] International Covenant on Civil and Political Rights; https://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf
[vi] Children’s Defense Fund. Protect Children not Guns.
[vii] Amnesty International, In the Line of Fire: Human Rights and the US Gun Violence Crisis, p.5; https://www.amnestyusa.org/wp-content/uploads/2018/09/egv_exec_sum.pdf