Gun ownership: A right or privilege?
The question of whether gun ownership is a right or privilege recently came up on Australian Hunting Podcast and again in an online discussion on a provision in SA law that says gun ownership is not a right.
Or is it? The CFCV’s Neil Jenkins and Tristen Fremlin go head-to-head on that question.
My right to buy a gun
–Neil Jenkins
If I want to buy bread at the supermarket, I can. I may have to pay a price and line up at the checkout, but it’s something I have the right to do.
It’s the same with a firearm. If I want to buy a shotgun, I can. I need to have the right licence and permit, but the law does allow me to buy a shotgun if I wanted one.
It’s the same with flying a plane or driving a car. I have to get licences to do these, but I can do them if I want to.
It’s unlikely that I would be able to buy a Category D firearm but it’s also the case I’m not going to be able to fly an Airbus. The interesting thing about these is that these are rights which can be attained, however they would require career changes that are beyond me. Are these still rights? I’m not sure.
However for the more simple case of legally obtaining a Category A or B firearm, the argument of a right is more clear cut. Any accountant, mechanic, retired or unemployed person can buy a side by side shotgun if they are willing to meet some basic criteria. In other words, these are rights – but with some conditions attached to them.
My good friend Tristen will argue buying a gun is not a right, but a privilege. He will argue that free speech is a right because the right is unconditional.
However I would say that isn’t true. My day job as a public servant binds me to the Official Secrets Act. Not that I have anything exciting to share with you, but my ‘right’ to say what I want has more freedom than buying a gun, but isn’t without limitation.
The only difference between my right to get a gun and my right to have free speech is how high the bar is set.
Privilege
I would argue that privilege, is a right that not everyone has access to. One dictionary definition defines privilege as
“a right, immunity, or benefit enjoyed only by a person beyond the advantages of most”
No matter what I do, I won’t be able to inherit James Packer’s fortune. Nor will I be able to ride in the royal carriage next time it’s in Australia.
That’s beyond the ability of most people do to. For those, you have to be born in the right family. You might be less deserving of those things than other people, but it’s a right you don’t have to pursue and cannot lose. Surely that’s privilege.
The South Australian Police recently said owning a gun is not a right. That would be true if the law said South Australians cannot own any firearm, however that is not the case.
I’m not familiar with the detail of firearm laws in South Australia but you can buy a gun there if you get a licence. That makes owning a firearm a right. Even if the police say otherwise.
Privileges of the modern society
-Tristen Fremlin
Neil believes that “If I want to buy bread at the supermarket, I can. I may have to pay a price and line up at the checkout, but it’s something I have the right to do. It’s the same with a firearm”
In order to define our rights, we cannot look to our every day lives or to dictionaries. To define our rights, we must look to the one thing that protects them, and enables laws to be made. The Commonwealth Constitution of Australia Act. (Known as the “Constitution“ moving forward)
Our Constitution does not include a “Bill of Rights” like the American Constitution, as such it has been criticised for its ability to protect the rights of Australian’s. However, it does allow us two types of rights; Express Rights and Implied Rights.
Express Rights are those that are named in the Constitution. These include; The right to trial by jury, The right to just compensation, The Right against discrimination on the basis of out-of-State residence. For any of these rights to be changed, we would need to take the change to a referendum.
Additional, to this, we also have the protection of “Implied Rights”, these rights are ones that are not written explicitly into the wording of the Constitution, but that the High Court has found to be implied by reading two or more sections together.
So what does this mean for Firearms?
Well I can’t say I have read the entire Constitution, I can guarantee you that the Constitution does not have any explicit firearms ownership laws. I can also tell you that Section 51 of the Constitution has provided the power of legislation to the state.
Now we need to consider the following: I mentioned above that the Constitution has no express firearms rights and that firearms law is the responsibility of the states. So our final hope of firearms rights must be within the implied rights… right?
Well, sorry to break your hearts. The principle function of the High Court of Australia is to interpret the Constitution and to interpret its meaning. Its pretty clear that the Constitution does not have any firearm ownership rights, and the High Court of Australia has not awarded us any Implied Gun Rights.
If we then look at our state based laws, we don’t need to look very far to see that the free ownership of firearms does not exist. Our gun laws are exceptionally restrictive.
Consider this; if ownership of a firearm was a right, you would not need to apply for a license or permit to acquire to own firearms.
Looking at what we have and how the constitution works and comparing this to Neil’s assumption that I will counter his argument with the Right to Free Speech.
Australian’s are given the Right to Free Speech, however under certain circumstances, we may make the decision to waive this right in regards to certain subjects. In this case, Neil’s inability to freely discuss matters under the Official Secrets Act is a condition of his employment. It does not effect his ability to be a pro gun lobbyist, nor to argue for or against any other matter.
So, unless we can convince a majority of voters that firearm ownership should be a right (and a right worth fighting for in a referendum), our guns will remain a privilege.
What to you think?
Is gun ownership is a right or a privilege? Take our poll!
(Result so far as at 14/11 is 88% of you say it is a right)