How Australians Bit the Bullet and Threw Their Arms

By Rene Gamino Jr.

With mass shooting after mass shooting amidst the United States’ heightened political climate, the Commonwealth of Australia has once again emerged as a counterpart to American political culture and weapons consumerism; that nation had cleansed itself of the “American disease” as Prime Minister John Howard once described.

Discussions of Australia’s firearms policy mainly concerns itself with the 1996 National Firearms Agreement (NFA), 2002 National Firearm Trafficking Policy Agreement (NFTPA), and the 2002 National Handgun Control Agreement (NHCA), with the first taking relatively extreme action in the face of the 1966 Port Arthur massacre. Whereas American mainstream discussions of gun control are politically limited to background check programs, ability to carry in public, and restrictions on certain weapons and their magazines, the NFA was surprisingly extreme for a uniform approach to firearms regulation, agreed upon by the federal government, states, and territories:

1. A virtual ban on the import, ownership, sales, and use of certain semi-automatic and self-reloading rifles and shotguns;
2. A national buyback program for the prohibited weapons;
3. A national firearm registry, followed by licensing and permit criteria restrictions such as needing a “genuine reason” for firearm ownership, completion of an accredited gun safety course, and evaluation as a “fit and proper person.”

The extent of their powers rest on a foundational difference between the United States and the Australia in terms of this subject, or the differences between the countries’ constitutional law. Whereas the United States’ right to bear arms is sanctified by Amendment II in the Bill of Rights and has since been reaffirmed by the Supreme Court of the United States, this right has no constitutional protection in Australia’s constitutional law despite the protection of other similar rights such as the freedom of religion and the prohibition of religious tests for federal office (Australian Const. Section 116) as compared to Amendment I to the United States’ Constitution (U.S.Const. amend. Amendment I, II). However, the nightmarish incompatibility between Australian and American constitutional law does not end there; Varad Mehta of The Federalist writes, “gun confiscation in the United States would require violating not only the Second Amendment, but the fourth and fifth as well, and possibly even the first”, citing our own restrictions on 3D printed firearm files to preserve the existing regulations over foreign export of munitions, be it digital or traditional (Mehta, 2015).

Similar to the discussions of freedom of speech and inflammatory rhetoric in the United States, the constitutional right to bear arms has subsequent implications on the constitutionality of restrictive legislation unlike Australia: any legislation remotely similar to Australia’s NFL would have consider at least five landmark cases by the Supreme Court as recent as 2010. For example, in People v. Aguilar (2013), the Illinois Supreme Court summarized the findings of “individual self-defense” in the landmark case, McDonald v. Chicago (2010): individual self-defense is not only ‘the central component’ of the Second Amendment right but the right is fully applicable to the states through the due process clause of the fourteenth amendment, or that no state shall “deprive [any person] of life, liberty or property without due process of law” (Amendment XIV). Furthermore, the most suggestive landmark case in favor of firearms regulations remains United States v. Miller (1938), not to be confused with Miller v. United States (1958) and Miller v. California (1973). In the New York University Journal of Law and Liberty, Brian L. Frye argues that the scholars have largely ignored Miller and despite this, “individual and collective right theorists alike claim Miller supports their position” (Frye, 2008). However, the author argues the reading “simply reflected the popular sentiment and conventional wisdom”: that generally, Miller v. United States permits reasonable regulations of firearms under the guaranteed individual right to possess and use firearms (Frye, 2008). Because of this, any legislation must account for the informal questions of constitutionality, if not followed by the ideological outrage of strict limitations on gun ownership and purchases.

II. Cultural Differences

Excluding constitutionality, whereas the mainstream model for “gun control” is at most concerned with firearm sales, transfers, and registration through a licensed firearms dealer under additional regulations such as background checks, the Australian model would culminate in a large-scale governmental coercion; in addition to the regulations above such as safe storage requirements, a license application must additionally demonstrate general fitness and are required to demonstrate a “genuine reason” amidst the late 1990s temporary firearm buyback program in which illegal firearms were largely confiscated. Interestingly enough, because the NFA explicitly reads that “personal protection is not a genuine reason for acquiring, possessing, or using a firearm,” this would produce moral and cultural outrage especially in the United States, given that about four-in-ten United States adults live in a household with firearms and about two-thirds of owners cited “protection” as a major reason for their ownership of firearms (“America’s Complex Relationship With Guns”); this cultural identity is heavily tied to their sense of personal freedom, with a 2017 survey citing that roughly three-quarters of firearms owners delineated this right as “essential” compared to the roughly one-third of non-owners (ibid). However, whereas the owners and non-owners are divided on many firearms-related policy positions, particularly the prohibition of assault-style weapons, high-capacity magazines, and concealed carry in certain areas, there is strong bipartisan agreement in positions such as “preventing the mentally ill from purchasing guns,” “backgrounds for private sales and at gun shows,” and “the barring gun purchases by people on no-fly or watch lists” (ibid).

However, similar to the argument of ineffectiveness made in the debate of prohibition, there is concerns to be said about the illegal sales of arms and lowered effectiveness that may be proliferated by restrictive policies akin: concerns that have been made been manifest in the Commonwealth, observed by the the 2016 report on illicit firearms in Australia under the Australian Criminal Intelligence Commission.

Excluding the “grey market” and regulatory loopholes, contemporary diversion methods have continued as current “components to the domestic illicit firearm markets”, mainly through theft (Australian Criminal Intelligence Commision, 2016). On the other hand, the report still attributes the “grey market” as the “significant source of firearms for criminals” (at least 40% in domestic firearms traces) whilst non-committedly mentioning that a national registration and/or surrender of these firearms would help reduce the “number of firearms available to the illicit market”, possibly ignoring the underlying reason behind the “grey market” (ibid); that a significant portion of people are set on civil disobedience despite the value of internationally “low per capita deaths by firearms” (ibid). Furthermore, in his article in The Australian Quarterly, Roger Douglas reaffirms this point and extends further beyond this: that “an examination of the relationship between jurisdiction, changes in law, and violent death rates suggests that the changes… may have well made little or no overall impact on violent death rates in Australia”, mainly limited for two reasons: (i) this ability to acquire firearms illegally and (ii) and the more fundamental problem of substitutability (Douglas, 1997). However, there is no saying that the legislation have had little positive impact outside of the above as Douglas himself states that there may sometimes be limits to substitution and that the “restriction of access to certain kind of weapons might make it impossible… to act out their particular self-imposed script” (ibid).

This prior effervescence against the “American disease” has failed in terms of compliance with the Agreement. Reporting on a recent audit of “compliance of state and territory firearms legislation to the 1996 NFA and …. additional restrictions on handguns”, Calla Wahlquist of The Guardian details the long-term failures of the legislation, or that the “divergence from the resolutions of the NFA significantly weakened the national gun control framework” (Wahlquist, 2017). Requirements such as the availability of firearm licenses to minors, 28-day cooling off period for a new purchase, and a “genuine reason” have become “less stringent in some few jurisdictions than they were in 1996,” if not suffered rollbacks (ibid).

This is no refutation of arguments for or against firearms regulations, especially when mass shootings continue to plague the nation on a yearly basis, but a refutation of the misunderstanding that the United States can emulate after any Western country without consideration of fundamental differences, including constitutionality and the effectiveness within a culture that heavily associates a liberal ownership of firearms with their sense of freedom and security. Rather than pleading a nation to abandon its values for legislation that may not carry the results we would imagine to see, we should work within values; While the nation should aspire to increase the overall societal good, “realpolitik” is to be advised with a politically sensitive topic in a nation such as firearms regulations rather than assure the nation that the benefits would surely outweigh what could be considered an abandonment of principles and culture.

References:

“America’s Complex Relationship With Guns.” Pew Research Center, Washington, D.C. (June 22, 2017) http://www.pewsocialtrends.org/2017/06/22/americas-complex-relationship-with-guns/

“ATF Online — Firearms — National Firearms Act (NFA).” ATF Online — Bureau of Alcohol, Tobacco, Firearms and Explosives, www.atf.gov/firearms/nfa/.

Australia, Australian Criminal Intelligence Commision. (2016). Illicit Firearms in Australia. Commonwealth of Australia.

Brian L. Frye, Peculiar Story of United States v. Miller. 3 New York University Journal of Law and Liberty 48, 48 (2008).

Douglas, Roger. “Gun Laws and Sudden Death: Do They Make Much Difference?” The Australian Quarterly 69, no. 1 (1997): 50–62. doi:10.2307/20634765.

Mehta, Varad. “The Australia Gun Control Fallacy.” The Federalist. June 26, 2015. Accessed January 23, 2018. http://thefederalist.com/2015/06/25/the-australia-gun-control-fallacy/.

“People v. Aguilar, 2013 IL 112116” (PDF). Illinois Supreme Court. Illinois Supreme Court. September 12, 2013. p. 6. Archived from the original (PDF) on June 11, 2014. Retrieved September 14, 2014.

U.S. Const. amend. I, II, XIV.

Wahlquist, Calla. “Australian gun control audit finds states failed to fully comply with 1996 agreement.” The Guardian. October 04, 2017. Accessed January 23, 2018. https://www.theguardian.com/australia-news/2017/oct/05/gun-control-audit-finds-states-failed-to-fully-comply-with-1996-agreement.