Posted on 12/17/2025 4:51:52 PM PST by DoodleBob
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.
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.
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
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
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.
Is your life worth protecting? If so, whose responsibility is it to protect it? If you believe that it is the police's, not only are you wrong -- since the courts universally rule that they have no legal obligation to do so -- but you face some difficult moral quandaries. How can you rightfully ask another human being to risk his life to protect yours, when you will assume no responsibility yourself?...One who values his life and takes seriously his responsibilities to his family and community will possess and cultivate the means of fighting back...He will never be content to rely solely on others for his safety, or to think he has done all that is possible by being aware of his surroundings and taking measures of avoidance.
They had them in Crocodile Dundee.
And when it is the "State" threatening the right to life?
self defense is self defense
it is a natural right
I didn’t even read it.
But I can say that the disaster of Bondi beach in Australia could have been avoided if Australians had the right to own and bear arms.
Twenty minutes! That is how long that rampage lasted until a detective with a handgun was able to bring one of the crazed gunmen down. Imagine if there had been Australian citizens carrying on that day.
Did Mad Mo’ have anything to do with pyrotechnics?
Gunz are a cultural appropriation on the part of Muzzies.
It is astounding how a fundamental civil right, a bedrock of self-determination, is subject to a utilitarian test in Australia and elsewhere.
Quite the contrary….it is not a sign of Americans’ mental deficiencies, that America still has a relatively free right to keep and bear arms in the face of many “mass murders” and shootings etc. It is a bold sign, that rights are given by God, and not up to a vote.
It is in the U S of A! I swear we should bulldoze the UN into the East River….
Well said.
Australians are subjects and not free..
been watching a show called ‘touch of frost’ about a cop in england- today’s show was a massive anti-gun show where a kid pulled a gun on the cop- everyone freaked out and then the rest of the hour practically was a lecture on hoe dangerous guns are and ‘what could happen’ if someone has a gun
Lecturing the audience about “What if?” What If?” What if?”
- the whole stinkin show was nothing but fear mongering- and one of the cops said “The public want to be assured that noone on the streets has a gun”
one of the worst anti-gun shows I’ve seen
The police were apparently all on their tea break until the adult male in question broke into her room, dragged her out of her bed and into an alley where he proceeded to beat her.
At that point the minor female used the kitchen knife she had concealed in her bed to stop the attack.
The police, their tea break apparently over, arrested her for murder.
What can I say?
Down there they are not well people.
The UN’s refusal to recognize a human’s individual right to self-defense is further proof that the UN is an anti-human organization.
It’s a basic human right which is only recognized in the United States.
Which makes all non-Americans monkeys.
Reading British mysteries is interesting, Victorian Era, lots of guns, after the Great War, restrictions on guns, after WWII fewer and fewer guns until the books in the 80s (Which was when the Jack Frost series was set) they started having full on hysterics at the sight of a gun.
Poor stupid cows.
[[they started having full on hysterics at the sight of a gun.]]
You shoudla seen the hysteria in the show- it was unreal- really over the top- it was bad- definitely a show to lecture everyone about ‘the evils of guns’ lol
The “right to gun ownership” is really just referencing a specific type of contemporary, available weapon. But the foundation of it is bigger.
The real meaning is people have a right to physical self-defense, to defend themselves with all kinds of weapons, potentially deadly weapons. And that people have a right to defend against attackers and kill those that would try to murder them. Against average criminal thugs, murderers, or tyrannical government.
+1000
Absolutely right-
in my profile i have a list of our foudners’s sayings which echo your thoughts-
I get that with them, it isn’t a right...it was a privilege, given by government. We see what happens when we let the enemies define things as privileges granted by government. They can be taken away at the whim of a government.
And that is how it will turn out if don’t continually fight in defense of the Constitution of The United States, where...it IS a right.
As many of us on this forum rightfully point out: we don’t keep and bear arms to hunt. We don’t own firearms as a hobby. We don’t have rifles and pistols to shoot at targets.
We own our weapons, as a constitutionally codified right, to protect us both from predators in society, and predators in government.
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