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Do You Have a Right to Own a Gas Stove?

photograph of gas stove burning

In January, Representative Ronny Jackson, a Republican from Texas’ 13th district, a doctor, and a former rear admiral, tweeted,

This was in response to a statement by the commissioner of the U.S. Consumer Product Safety Commission that the agency might pursue new regulatory action with regard to gas stoves, given recent research showing that gas stoves contribute to environmental and health issues like asthma. (For a more detailed, and different, take on the issue, see Andrew Conarty’s  “Gas Stoves: A Kitchen Culture Clash” also here at The Post.)

It wasn’t just Jackson who had a negative reaction to this, but his response – echoing a popular National Rifle Association bumper sticker – seems especially notable.

Was Jackson saying that we have a right to own a gas stove in the same way as we have a right to own a gun? It’s a good question.

I think the answer, however, is that from an ethical point of view, we do not have a fundamental right to own any kind of physical object – whether it’s a gas stove or a gun.

This is an especially important issue right now. In the last few years, federal court decisions have been an unmitigated triumph for people who sell guns and an unmitigated disaster for people who don’t want to get shot. In 2022, two hundred and thirty-one years after it was ratified, the Supreme Court ruled for the very first time that the Second Amendment to the U.S. Constitution protects an individual’s right to openly carry a gun for self-defense. Most recently, in United States v. Rahimi, the 5th Circuit Court of Appeals ruled that laws forbidding domestic abusers from possessing firearms violate the 2nd Amendment by prohibiting specific individuals from owning weapons. In doing so, the court not only ignored the fact that a woman is five times more likely to be murdered by an abuser with a gun and that four and half million women have been threatened with, shot at, or murdered by an abuser with a gun, they specifically said that these facts are irrelevant. Why?

The theory behind the “liberal” in “liberal democracy” is that everyone has, in addition to a right to participate in the democratic process, certain inalienable (that is, you can’t give them up even if you wanted to), fundamental rights, liberties, and freedoms. A fundamental right demands more than a balancing of harms and benefits.

You have a legal right to do whatever you are not specifically legally prohibited from doing, but you have a smaller number of fundamental rights. These, as I’ve said, by their very nature trump, or overrule, ordinary rights – and even override consideration of bad consequences. In theory, the only thing that limits a fundamental right is another fundamental right. These fundamental rights include freedom of religion, the press, speech, association, and the right to own private property. But the fundamental rights are not a random list. They are meant to protect, as John Stuart Mill wrote, “The only freedom which deserves the name, that of pursuing our own good in our own way…” Or, as John Rawls would have it, the fundamental rights are those that allow us to form, revise, and pursue our own idea of the good.

Notice, how odd the right to own a gun, the right to own a particular kind of manufactured artifact, seems in this context. Guns, and gas stoves, seem to be simply the wrong kinds of things, the wrong kinds of things metaphysically, to be the objects of a fundamental right.

The right to own property doesn’t help here, since it does not mean a right to own just anything (e.g., you can’t own biological weapons, designated historical sites, or a car that you drive with no emission system).

Helpfully, the courts themselves have specified that the right to own a gun is actually “the right to own and carry a gun for self-defense.” Let’s just stipulate that self-defense is a basic right. (It may not be.) But if self-defense is a fundamental right, then, by this very definition, gun ownership is a derivative, and not a fundamental, right. For example, free speech might imply that I have a non-fundamental right to my own Facebook page. But having a Facebook page – or a gun – is not a fundamental right since they are explicitly derived from the more fundamental rights of speech or self-defense.

Why does this matter? Because if the fundamental right is a right to self-defense, and gun ownership is justified by that, then it matters what the empirical facts are.

If, for example, guns turn out to be poor tools for self-defense, then they can be regulated on that basis. If the evidence supports the claim that abusers are overwhelmingly more likely to harm an innocent person with a gun than justifiably defend themselves with it, then the right to self-defense itself undercuts gun ownership in these circumstances.

The most obvious objection is this: Guns, unlike gas stoves, are specifically stipulated in the Bill of Rights as a particular kind of thing you have a fundamental right to own. However, there are still good reasons to reject this view. For if there are certain kinds of particular physical objects, the ownership of which is protected via stipulation by the Constitution, those objects must be, in this case, muskets and flintlock pistols (especially if you are an “originalist”). It’s probably not a big public health problem if people own these, it’s handguns and AR-15s that are worth worrying about. If the argument is that people have a right to own muskets, so be it.

If gun advocates say, “but you can’t reasonably defend yourself with a flintlock pistol,” then we are back where we started. Even if people have a fundamental right to defend themselves, answering the question of how, and by what means, will depend on a bunch of empirical claims about harms and benefits. The point is that the derivative right to own a gun does not trump more fundamental rights, nor does it make weighing harms irrelevant. Overwhelming evidence that allowing abusers to own firearms will cost many women their lives can’t be set aside by simply asserting a right to own certain kinds of machines.

I think we are so used to hearing people talk about a “right to own a gun” that we no longer realize what a strange idea it is that we could have a basic right to possess a certain kind of manufactured machinery, or how different that is than the idea that we have a right to say what we want without government interference. This is why it helps to think about whether there could be a fundamental right to own a gas stove. If you did have fundamental rights to own guns and gas stoves, and could keep adding objects you would like to have to the list of things you have a fundamental right to, this would quickly undermine the very idea that there is any set of fundamental rights at all. What would be left is not a coherent list of what is necessary for shared and ordered liberty, but simply a laundry list of stuff one wishes to possess. And, so, if gas stoves do cause serious harms, it is perfectly reasonable to regulate – or even ban – them. Guns do cause serious harms – in 2022, 45,222 Americans died of gun-related injuries. Perhaps they should be regulated.

Ultimately, where no fundamental right is at stake, it’s all about harms and benefits which should be weighed through the ordinary democratic process. No one has a right of control over particular kinds of physical objects that is on par with other basic rights. Contrary to Representative Jackson’s tweet, no one is entitled to a handgun or a gas stove.

Gun Control and Constitutional Interpretation

photograph of gavel resting on Bill of Rights

Since the beginning of 2021, there have been 133 mass shootings in the United States. While some of these shootings find their roots in racism, misogyny, and xenophobia, they are also the result of the relatively easy access to firearms in the United States. Many Americans might attribute this prevalence of guns to the right guaranteed in the United States Constitution, enunciated in the Second Amendment’s phrase “the right of the people to keep and bear Arms.” However, the application of the Second Amendment as affording the individual liberty of gun ownership is a modern, highly disputed, doctrine in constitutional law. Two contemporary landmark cases, District of Columbia v Heller (2008) and McDonald v City of Chicago (2010) fundamentally altered the power of state and federal governments to regulate gun ownership by recognizing an individual right to own and keep firearms. These cases were highly divisive, included multiple dissenting opinions, and were decided by bare, 5-4 majorities. However, the majority and minority in both cases relied a type of constitutional interpretation called originalism to bolster their conclusions. The difference, however, lies in the majority’s use of original meaning and the minority’s use of original intent.

How were the different forms of originalism employed in both cases? What are the moral pitfalls of either type of originalist interpretation? And is relying on the ideas or desires of the Founders an ethical basis on which to decide cases?

In District of Columbia v Heller (2008), several individuals, including members of lobbying groups like the National Rifle Association and the Cato Institute, challenged the constitutionality of a D.C. law which imposed several restrictions on gun ownership, including the regulation that rifles and shotguns be kept “unloaded and disassembled or bound by trigger lock.” In an opinion written by Justice Antonin Scalia, the Supreme Court held that the Second Amendment granted individual citizens the right to keep and bear arms for the purpose of self-defense. Though the Court had previously defined the scope of the Second Amendment in United States v Miller (1939), the widely-accepted application of the Second Amendment in constitutional law was that the right to bear arms only applied to ownership of weapons in the context of use in an organized militia. For this reason, many decisions involving individual gun ownership in the 20th century refused to acknowledge that the Second Amendment bestowed an individual right which restricted states or the federal government from regulation.

The little room that was left open for gun regulation after District of Columbia v Heller was quickly closed two years later in McDonald v City of Chicago (2010). The majority opinion, this time penned by Justice Alito, held that Chicago’s regulation which essentially prevented firearm registration and ownership was a violation of rights bestowed to individuals by the Constitution. This case was significant because it granted individuals broad legal protection from gun regulation. Many constitutional scholars and theorists view both Heller and McDonald as landmark Supreme Court decisions which fundamentally altered the legal conception of the Second Amendment.

Originalism is a form of constitutional interpretation which understands the Constitution in terms of what it originally meant when it was written, the original intent of the Framers, or both. One consideration, which applies to both original meaning and original intent interpretation is the reliance on the ideas and intentions of people long-dead and gone when deciding what rules should govern society. Nobody alive today had a hand in writing the original Constitution. Sometimes known as the “dead hand problem,” a moral and philosophical paradox arises when considering whether one can consent to a government, they had no hand in designing.

Fundamental to the reasoning employed in both Heller and McDonald was originalist meaning. Proponents of original meaning generally argue that it ultimately benefits society by limiting the discretion given to judges. By limiting the power of judges to use their own authority to decide what the Constitution says (or should say), originalism might be said to prevent an unequal application of the law and to leave political battles to the legislature where it can be more democratically controlled.

Those critical of originalism, however, might see it as giving far too much weight to the language, culture, and politics of a long-gone society and see it as detrimentally rigid and inapplicable to a rapidly changing society. Upholding the original meaning of the Constitution might also force one to condone immoral provisions, such as those enabling slavery or only bestowing rights upon certain groups of people. While originalism might safeguard certain moral values present in the Constitution it also prevents moral correction. For example, in the case of gun reform, even if the original meaning of the Constitution was meant to bestow individual gun rights, perhaps this liberty should be reexamined in the face of advanced technology and the prevalence of gun violence.

Turning not to the original meaning but instead to the original intentions of the Framers is another strategy used in originalist constitutional interpretation. In their dissents in Heller, both Justice Stevens and Justice Breyer point to historical evidence which implies that the Second Amendment was intended only to apply to militias and was not conceived to apply to individual self-defense. Originalism which focuses on the intentions of the Framers in terms of gun rights has also been a popular method among gun reform advocates, and late night comedy hosts, who point out that firearm capabilities at the time of ratification were vastly different than firearm capabilities today. While many gun regulation advocates might agree with the application of the Framers’ intention in this instance, the pitfall of applying such an interpretive strategy includes reckoning with some of the potentially immoral intentions present in certain provisions of the Constitution. Article I, Section 9 of the Constitution condoned slavery, and experts have contended that the Framers did not intend for certain Constitutional rights, like the right to vote, to extend to poor men, women, or BIPOC folks.

Another potential problem with considering the intention is that the Founders were arguably themselves immoral. More than a few of the Founders owned slaves, and though some expressed moral grief over this fact, their decision to subjugate human beings is entirely reprehensible. Even relativist arguments which defend the Founders and advocate for original intent, might fail on the basis that the point is exactly that we have changed as a society and should not be turning to the dead for guidance in solving society’s most pressing legal problems.

Since Heller, the rate of gun deaths in the United States have increased 17%. The United States is the one of the leading countries in the world when it comes to firearms death, and there is a clear political, cultural, and moral interest in reexamining the individual right to gun ownership. If one’s goal is to regulate firearms, the most effective form of constitutional interpretation to do so might very well lie outside of originalism altogether. However, it is important to recognize how originalist application has greatly influenced gun control in the United States. By understanding the moral quandaries that belie the forms of modern constitutional interpretation applied to firearms cases, we can better understand which types of arguments best support the gun regulation we seek.

Under Discussion: Are Liberalism and Democracy Fundamentally at Odds?

photograph of wooden pins representing peoplewith majority in support and a handful opposed

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Democracy’s Demands.

“Liberal democracy” is a phrase so commonly trotted out in discussions of types of modern political regime that one could be forgiven for thinking that its components — liberalism and democracy — fit together hand in glove. Yet this is far from true. The U.S. Constitution represents an uneasy compromise between liberalism and democracy, and many of the thorniest political problems the U.S. has faced derive from the fundamental tension between them.

Liberalism is a political philosophy that makes the individual and her freedom the locus of value. According to liberalism, the basis of the state’s right to use coercive power is that such power is necessary to secure the freedom of the individual against the depredations of others, including the state itself. By contrast, the practice of democracy is undergirded by an ethical commitment to the principle of majority rule — the idea that the basis of the state’s moral right to use coercive power is the mandate of the majority of the people.

In a liberal democracy, then, we have two uses of state power that count as morally legitimate: to secure or enhance freedom, and to enact the will of the majority. But these two uses can sometimes point in different directions. On occasion the majority wishes to reduce freedom — usually, the freedom of a minority. For example, segregation in the U.S. South represented the will of the white majority imposing limitations upon the freedom of the African-American minority. In such circumstances, there is a clash between the idea that majority rule makes political power legitimate, and the idea that political power cannot legitimately be used to restrict freedom. The key question in such cases is whether freedom ought to triumph over majority rule or vice versa.

The Founding Fathers were liberals and democrats, which is why they created both democratic institutions and institutions to serve as bulwarks against the popular will. For example, for all practical purposes the Bill of Rights takes questions of fundamental individual liberty off the democratic agenda: there will be no vote on the right to free speech (thank God). Meanwhile, the judiciary acts as a counterweight against democratic majorities when, through their representatives, they enact legislation that undermines the rights enshrined in the Constitution.

Today, those on opposing sides of many of the most controversial issues in U.S. politics will invoke the two legitimate uses of political power to ground their positions in widely acknowledged political values. Consider two culture war issues, abortion and gay marriage. Liberals say that they find within the Constitution a guarantee of women’s freedom to choose and homosexuals’ freedom to marry. Thus, they argue that state legislatures cannot legitimately prohibit these activities, even if the majority of people in the states are against them. On the other hand, invoking the legitimacy of majority rule, conservatives urge that these issues ought to be brought up for a vote in each state. At the same time, liberals will also point to the majority of Americans who support legalized abortion in favor of their position, and conservatives will oppose gay marriage on the grounds that it impedes the free exercise of religion. It’s interesting to note that essentially the same arguments — freedom versus the will of the majority — were made by the advocates and opponents of desegregation in the 1950s and 1960s, or the radical Republicans and Southern Redeemers in the 1860s and 1870s. We will probably see the same pattern repeat itself in debates over transgender rights, drug legalization, and other issues in the coming years.

As my potted history suggests, the trend over the last sixty years has been toward greater freedom and less majority rule. The courts have interpreted the Constitution as a broad guarantor of individual rights, regardless of the people’s desire to abridge those rights. But this may be changing. With the U.S. Supreme Court becoming more conservative, we may see a rollback of Constitutional guarantees of certain individual rights. The trend of finding individual rights in the Constitution, and of continually broadening the scope of federal government protection for those rights, will be reversed. In effect, the courts will throw these issues back to the voters through their representatives in state legislatures.

Is this a welcome development? On the one hand, it will mean that many states will not recognize what many believe are important individual rights, such as the right to control one’s reproductive life through the use of safe abortion. On the other hand, it will mean that people will live as the majority of their co-citizens wish them to live, at least with respect to certain important choices in their lives. Democrats (of the small ‘d’ variety) might find in this reason to celebrate.

Indeed, the slide toward illiberal democracy appears to be a world-wide phenomenon. Illiberal democrats reject the liberals’ view that securing and enhancing freedom is a legitimate use of state power. Philosophically, they recognize only the legitimacy of majority rule, and they use democratic tools, such as referenda, to legitimate policies that strip minorities, political opponents, and ordinary citizens of their civil and political freedom.

But for all that liberalism and democracy can be at odds, the fusion of the two appears to be a relatively enduring and equitable model. Individual civil rights like free speech encourage more effective democratic deliberation and encourage participation in the political process. At the same time, insofar as liberalism is embraced by the majority, it is further legitimated by that very embrace.

Still, the potential for disharmony between the fundamental tenets of liberalism and democracy means that liberal democracies are never free of deep controversies that can tear at the social fabric. As we continue through this period of both internal and external instability, that potential is more likely to come to fruition as the will of the people becomes increasingly antagonistic toward the freedom of the individual.

Does Australia Need a Bill of Rights?

photograph of Australia High Court building

Rights are one of the most recognizable ethical tools of the modern world. They have increasingly dominated the way we think about our moral lives – as individuals as well as nations. To invoke a right is to claim an entitlement. A claim that “I have a right to X” will often trump other arguments and interests. A right entails a duty – the right to freedom of expression entails a duty not to impede expression. In theory, if not always in practice, rights have been very important in guaranteeing the dignity and self-determination of persons. They are important because they promote those conditions necessary for well-being, for humans to flourish and for society to promote that flourishing.

But there can be a dark side to rights claims – for example, a claim to the right of free speech can be used to protect racism or lies, while the right to freedom of religion can be used to protect discriminatory practices.

Some important philosophical questions about rights remain a challenge: What kinds of goods should be guaranteed? What kinds of liberties does everyone deserve? Which moral considerations best explain the necessity of these rights? What should we do when these rights conflict with one another? Several of these questions are central to the national debate in Australia over whether a bill of rights needs to be officially adopted.

Australia is the only mature liberal democracy that does not have such a charter. Many feel that the introduction of constitutional rights is long overdue, while others do not believe that a bill of rights is necessary. In fact, many feel that the explicit enumeration of basic freedoms might even be a hindrance to the administration of justice. This has manifested as a tension between ‘old constitutionalists’ who believe that the combined functions of the parliamentary and judicial system provide the best, most flexible, and most democratic protections for Australians, versus those who think that citizens’ fundamental rights should not be left up to the whims of lawmakers and judges.

At the time Australia’s Constitution was written, early in the twentieth century, the inclusion of a bill of rights was rejected. It was argued that, in the words of former High Court Justice Michael Kirby, “a due process provision in such a bill of rights would undermine some of the discriminatory provisions of the law at that time.” Ultimately, it’s been the government’s legislative power which has expanded federal legislation and protected fundamental rights by creating specific statutes dealing with human rights questions or the removal of various kinds of discrimination.

Various parties feel this process has worked well because of its adaptability, where charters of pre-existing, inalienable rights can make the system too rigid and inflexible. Up to now, whenever this debate has arisen, the general sense has been that Australia’s parliamentary democracy works reasonably well, and its citizens have usually had a high degree of trust in legislators. If they do not act justly, particularly if they act oppressively, they will be dismissed from office at the next election.

A further objection to the introduction of a bill of rights is that it would lead to a kind of “judicial imperialism” by way of transferring power currently held by the legislative body to the courts – unelected (usually white, middle-aged, male) judges. The worry is that a bill of rights could result in the entrenchment of the values of said judges into law, in a way that would prevail even over parliamentary statutes.

But the fear of politicizing the courts and granting outsized power to unelected (and thus unaccountable) judges appears to be losing ground. One contributing factor is this era of increased populism – that is, anti-establishment sentiment – from which Australia, following the results of the most recent election, is certainly not immune. One might also add the erosion of public trust in democracy provoked by many different, powerful forces from corporate lobby groups to misinformation spread on social media.

Still, we should not discount the immense value of judicial flexibility. Rights which seem fundamental at one time, may not be appropriate in another – consider the United States’ right to bear arms. Having protections enshrined as rights makes them very difficult to amend later. The Australian Constitution, like the U.S. Constitution, is very difficult to alter; we don’t want the community to be stuck with rights that end up resulting in more harm than good. A bill of rights drawn up now may not have the capacity to deal with problems of the future. Given the speed of technological change, we may not yet know what problems lurk beyond the horizon. Better, perhaps, to deal with issues as they arise than try to predict the future. Allow parliament to legislate specifically the task at hand.

On the other hand, the democratic system may have its own flaws when it comes to ensuring equal protection for every person. It does, of course, favor the majority, and for this reason a bill of rights might be necessary to ensure the interests of minorities are equally protected. As Justice Michael Kirby said in a recent address on the subject:

Democracies look after majorities. Democracies are good at looking after majorities… In America, if President Trump does something which is considered unjust, there is provision for the appeal to the federal courts and ultimately the Supreme Court. But in Australia we have very few weapons if politicians in the majority don’t feel it is a matter they are interested in or that there are no votes in it.

There have been cases in Australia over recent years in which the government, for largely political reasons, has failed in its duty to treat all people with respect and dignity. A prominent example is Australia’s treatment of refugees, holding them in indefinite detention in substandard conditions. A bill of rights would ensure that basic protections, like the right to freedom from discrimination and freedom of expression, would be guaranteed for all. The vulnerable would be protected from the possibility of legislation taking away these necessary components for autonomy, self-determination, and self-respect. At their core, these rights communicate our convictions about principles like equality, justice, and kindness, the very essence of a good and free society. Perhaps it’s time they were explicitly articulated and collectively recognized.

Gun Control and the Ethics of Constitutional Rights

photograph of NRA protesters

Consider these starkly different positions on gun control: a month ago, just hours after a gunman killed 50 people worshiping at Friday prayers in two Mosques in Christchurch, New Zealand, the Prime Minister, Jacinda Ardern, promised to tighten the country’s gun laws. And, several days ago Donald Trump told the National Rifle Association in a speech that he intends to pull out of the United Nations arms treaty citing as a reason the protection of second amendment rights. Trump said, “Under my administration, we will never surrender American sovereignty to anyone. We will never allow foreign bureaucrats to trample on your second amendment freedom.”

In the United States it is difficult to tighten gun ownership rules, or limit the types of guns (like military assault rifles, automatic and semi-automatic weapons) because ownership of guns for self-protection has been found to be protected by the second amendment of the Constitution, which states that citizens have a right to ‘keep and bear arms.’ But no such constitutional right exists in New Zealand, where Ardern swiftly followed through on her promise; nor in Australia whose gun laws, also passed in response to a massacre, New Zealand’s were modelled on.

The man charged over the Christchurch massacre was in possession of two semi-automatic rifles as well as three other firearms, all held legally on his entry-level ‘category A’ firearms licence; the semi-automatic rifles had allegedly been modified by adding a high-capacity magazine. Less than a month later a sweeping gun law reform bill was brought before the New Zealand parliament. The bill outlaws most automatic and semi-automatic weapons, and components that modify existing weapons. During the bill’s final reading, Ardern said: “I could not fathom how weapons that could cause such destruction and large-scale death could be obtained legally in this country.”

New Zealand government Members of Parliament, in a rare show of bipartisanship, overwhelmingly backed the changes, (there was just one dissenting vote in the parliament), which were passed by a vote of 119 to 1 in the House of Representatives after an accelerated process of debate and public submission. It is now illegal to own a military style rifle in New Zealand (with the exception of heirloom weapons or those for professional pest control). Possession of such a weapon will from now on carry a penalty of up to five years in prison. The bill includes a buyback scheme for anyone who already owns such a weapon, for them to surrender it and receive compensation based on the weapon’s age and condition.

New Zealand’s gun law reform was based on similar measures taken by the Australian government in 1996, following the Port Arthur Massacre in which an individual used a semi-automatic rifle to murder locals and tourists in the small historic town, ultimately killing 35 people, including many children. Twelve days after the Port Arthur massacre, the Australian prime minister, John Howard, announced a sweeping package of gun reforms. In the wake of Port Arthur, the Australian government banned automatic and semiautomatic firearms, adopted new licensing requirements, established a national firearms registry, and instituted a 28-day waiting period for gun purchases. It also bought and destroyed more than 600,000 civilian-owned firearms, in a scheme that cost half a billion dollars and was funded by raising taxes.

In both countries gun law reform had been frustrated by conservative elements prior to the massacres. In New Zealand, as in Australia, there was some pushback from conservative politics, and from a gun-lobby, but in general there was widespread community support for the banning of military style weapons, and automatic and semi-automatic rifles, as both countries grappled with extreme tragedy.

In the United States, a similar response to major firearms massacres such as Sandy Hook in 2012 and, more recently the Parkland Florida school shooting in 2018 is almost inconceivable. Any attempt to instigate reform on the back of unspeakable tragedies such as these appears doomed; indeed Barak Obama’s pledge to push through some modest reforms following Sandy Hook encountered fierce resistance from the NRA and other organisations who, in vehemently defending the constitutional right of the Second Amendment, constitute the gun-lobby.

In Australia in 1996, and in New Zealand in 2019, the governments acted on the tragedy to amend laws so as to keep people safe and to ensure such massacres do not continue to occur. There have been no mass shootings in Australia in the over 20 years since Port Arthur; in the 20 years before it there were 13. In both cases, the gun lobby was barely given time to react, and reform was swift so that it took place in the wake of the tragedy. Even though the US has a constitutional right protecting gun ownership, the gun lobby fears the capacity of governments to move to curtail gun ownership in the wake of severe massacres and large-scale tragedies, such as Sandy Hook or Parkland, and members of the NRA have expressed concerns that such mobilisation by gun control advocates in Australia, and now New Zealand, may give hope and impetus to those campaigning for gun law reform in the United States.

A main gun-lobby tactic is to criticise gun-control advocates for capitalizing on tragedy to target gun laws. Following a mass shooting it is usual for the gun lobby, and a large number of politicians as well, to offer “thoughts and prayers” and then to vehemently oppose any suggestion that gun laws need reform. One typical response from conservative second amendment defenders is that it is bad (it seems they are suggesting it is ethically bad) to use a tragedy to further a political agenda or ideology.  

This tactic was spelled out clearly recently by Catherine Mortensen, an NRA media liaison officer, though she was unaware at the time of speaking, that she was being recorded. Recently several Australian politicians and political staffers were caught and secretly filmed visiting the United States and meeting with NRA and gun lobby officials and supporters, with a view to soliciting political donations. Said donations were slated to help these Australian right-wing conservative players electorally manoeuvre into a position from which to water down Australia’s gun laws. In meetings at the NRA’s Virginia headquarters, NRA officials provided Australian One Nation’s James Ashby and Steve Dickson with tips from the NRA playbook on how to galvanise public support to change Australia’s gun laws and coached the pair on how to respond to a mass shooting.

Catherine Mortensen’s advice, following a mass shooting, is: “Say nothing.” If media queries persist, go on the “offence, offence, offence.” She counsels gun lobby groups to smear gun-control groups. “Shame them” with statements such as: “How dare you stand on the graves of those children to put forward your political agenda?”

Of course, Mortensen’s point about not using tragedy to further a political agenda is, in this scenario, a totally disingenuous piece of sophistry. One of the principle points about such tragedies (Christchurch, Sandy Hook, Port Arthur) which determines how we should respond is the procurement and possession of weapons – in these cases the availability and use of military style weapons by a single person to massacre strangers. Whichever way it is talked about, how a government and community responds will always suggest some political end. Events like these rightly impede our political lives, and it is surely the role of politicians to act in the best interests of the community. Mortensen’s statement is also obviously hypocritical, considering the political clout of the NRA and the gun lobby.

It is surely time for the USA to look again at the ethics of its constitutional right to bear arms. A constitutional right is not a human right, and many now agree that the second amendment is a relic from the Eighteenth Century, when newly independent Americans may have needed “well organised militias” to protect themselves.

But as an ethical concept, the notion of a right needs to have some meaning. Although a right is an abstract, deontological concept, and is in an important sense a ‘good in itself’ it has also to be grounded in our experience of the world, and to emerge from what we know to be the case from our experience. We know that human rights pertaining to access to food and shelter and freedom from tyranny are fundamental because those things are necessary for us to flourish. But we can see from the number of massacres in America, not to mention other gun-death and injury statistics that high levels of gun ownership and availability do not contribute to a flourishing society.  

The right to bear arms cannot be considered to be a right that is ‘good in itself,’ or is worthy to be protected against every tragedy and every statistic that measures the harms it causes American society. In fact, in this case, the existence of a right is a primary factor standing in the way of ethical progress.