Gun ownership: A right or privilege?

Right or priviledge

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.th

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 privilegeTake our poll! 

(Result so far as at 14/11 is 88% of you say it is a right)

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13 Comments.

  1. Every Man Should Have a Rifle

    Henry Lawson (1907)

    So I sit and write and ponder, while the house is deaf and dumb,
    Seeing visions “over yonder” of the war I know must come.
    In the corner – not a vision – but a sign for coming days
    Stand a box of ammunition and a rifle in green baize.
    And in this, the living present, let the word go through the land,
    Every tradesman, clerk and peasant should have these two things at hand.

    No – no ranting song is needed, and no meeting, flag or fuss –
    In the future, still unheeded, shall the spirit come to us!
    Without feathers, drum or riot on the day that is to be,
    We shall march down, very quite, to our stations by the sea.
    While the bitter parties stifle every voice that warns of war,
    Every man should own a rifle and have cartridges in store!

  2. My 2c. Owning weapons for self defence is a fundamental human right, derived from 2 aspects of our nature as human beings:
    1) as an animal with instincts and a sense of self-preservation which are an intrinsic, inseparable part of the animal; and
    2) as a tool-using species which makes and uses tools to solve problems which, again, is an intrinsic, inseparable part of the being.
    That is not to say the government cannot regulate how that right is exercised or what type of tools may be used. But government cannot change the nature of that right by declaring it to be a privilege, because the right does not come from government, it comes from the very nature of the human species.

  3. We all have a in-alienable right to self-defence. A firearm is merely a tool with which to affect / enable that right. To deny us the means to defend ourselves, is to deny us that right of self-defence, and that is somply NOT ACCEPTABLE !

  4. If you think the 1688 Bill of Rights & more Specifically [1688] I William and Mary Sess. II (Bill of Rights) c. II
    7. That the subjects which are protestants may have arms for their defence suitable to their conditions and as allowed by law.
    Doesn’t apply then why is it still on the books for both the State & Territory of Victoria & Canberra??
    Canberra CURRENT ACT
    http://www5.austlii.edu.au/au/legis/act/consol_act/bor16881wams2c2306/s7.html

    Victoria CURRENT ACT, the 1688 Bill of Rights preserved in it’s entirety.
    http://www.austlii.edu.au/au/legis/vic/consol_act/iaaa1980240/s8.html

    STILL IN FORCE IN NSW
    The Act was in force in NSW immediately before 1 January 1911 (the date of establishment of the ACT) and was continued in force by the Seat of Government Acceptance Act 1909

    the NSW Parliament still use it to give themselves “Parliamentary Privilege”
    https://www.parliament.nsw.gov.au/prod/lc/lcprocedural.nsf/0/88E01EAAD73F0FEECA2576240018B0CE/$file/04%20NSW%20LC%20Prac%20Ch03%20(press).pdf
    4 Recent cases where the NSW Government has used the 1688 Bill of Rights to argue it’s case in the Courts
    http://www.austlii.edu.au/cgi-bin/sinosrch.cgi?method=auto&meta=%2Faustlii&mask_path=%2Bau%2Fcases%2Fnsw%2Bau%2Flegis%2Fnsw%2Bau%2Fother%2Fnswlrc&mask_world=&query=BILL+OF+RIGHTS+1688+1+WILL+AND+MARY+&results=20&submit=Search&rank=on&callback=off&legisopt=&view=relevance&max=
    As for the use of the term :
    “That the subjects which are protestants may have arms for their defence suitable to their conditions and as allowed by law.”
    I would argue that this “clause” if you will, in favor of “Protestants” arose only because James II of England had purged ALL Protestants from Government positions & replaced them with fellow Catholics, However the “clause” itself does NOT by Explicit or Implicit wording Prohibit ANYONE from owning Arms Suitable for Self Defence, it merely GUARANTEES that Protestants shall have Arms for Self Defence

  5. Understand first that personal liberty and political authority are both items of property – and remember that a claim to property is only as good as one’s capability to enforce it.
    Rights are a property as well – a commons – and their existence hinges upon their recognition and respect, and the exercise by the individual of responsibilities which naturally accompany each right as a result of its nature as a social construct.

    The distinguishing mark between a free man and a slave is his ability to enforce his own claims to his property and to his rights to life and liberty.

    Might i direct people also tthe the English Bill of Rights and the Magna Carta. Also, Caesare Beccaria explains adequately the failings of civilian disarmament (which btw can be adequately enacted subversively by excessive and arbitrary statute legislation such as is the casevhere in Australia).
    Also look up Curt Doolittle and the Propertarianism Institute, in particular “Common Law vs Fiat Law”

  6. All this is awesome to read, i find it very interesting but at the same time i know for a fact that if i ever used one of my registered firearms for any form of self defence the victoria police would come after me with the full force and $$$ of the state. I just couldn’t afford to fight it, id have to “cop” if you will a plea and off to jail id go. They would take my guns as well.

  7. What are you defending against that requires you to have a firearm? The right to self defence does state nor imply that you require a firearm. In the military, we have rules of Engagment. One that we always have is the right to self defence. However that does not mean we can always use lethal force or that we can always shoot someone. In fact we can only shoot to kill, thus if we are not authorised to use lethal force then we can’t shoot someone in self defence if there are alternatives, such as batons or OC spray.

    The right to self defence is just that, you can defend your self. It doesn’t mean you can take a shotgun or a pistol and put 13 rounds into some one who punched you. If someone punches you, you can punch them back.

    But we can get messy if a 14 year old punches a 22 year old. Can the 22 yr old punch them back? Is that self defence or assaulting a minor?

    Self defence is the same argument gun lobbyist use for wanting to own military style assault rifles. They are called assault rifles for a reason as the military uses them for assaulting an enemy’s position. Not so the average joe can put 30 rounds rapidly into an intruder when one round would suffice. The military will also fry someone for using excessive firepower. In fact under Military law you are only to fire the minimum amount of rounds to neutralise the enemy. If the enemy goes down after 2 rounds and you haven’t killed them, if they are no longer a threat then you can’t shoot them anymore and are now legally liable under international law to provide medical aid to them. Can you trust the average citizen with zero training to do the same?

    There is no reason why the average Australian has to have a gun. However the law allows the average Australian to purchase a gun for legitimate reasons if they meet the pre-requisites.

  8. Hi Anonymous. I’m sure many here would disagree with you, but am happy to have differing views published.

  9. People have a right to defend not only themselves dut there country as well The Government can only and will only do so much.. what will you do when your goverment isnt for you any more 170 billion citizens are gone from a country that was supposed to be protecting them.we should have the same rights as the ones that lead us no guns for us fine none for them why do cops here need guns and all the ones that protect our leaders they dont need them either.whats good for us is good for them.

  10. Raymond Purton

    As anything ,Its not what you’ve got, it is the way you use it.

  11. The pommy bass- teds don’t want to let go of our spirits. Where still treated like privileged convicts and should consider ourselves lucky to share their phony caring meaningful methods of control over our lives

  12. Unfortunately Australia is still an adolescent country with self serving politicians who play us for fools. We are NOT a democracy; we don’t have a bill of rights;(one of the few countries in the world) we are forced to vote (how democratic is that?) we are not allowed to choose our own head of State; it is imposed on us through English foreign birthright (how democratic is that?) We are told that we can defend ourselves and protect our own property; but are not allowed to purchase a gun to do so (how democratic is that?

    Take even the Port Arthur massacre. One mentally ill individual and millions of law abiding Australians are penalised for it. This is not a sound philosophical proposition. The self-serving politicians decided to take the law into their own hands without inviting submissions from all the stakeholders; in particular the affected gun owners and then never even passed any legislation. (how democratic is that)

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