Most Australians struggle to understand American’s seeming obsession with guns, linked to their near worship of, and reliance on, their Constitution as the source and protector of rights and freedoms. Through a comparative overview of the history and government of the United States and Australia, I hope to shed some light on why the two countries are so different when it comes to the protection of personal rights, and the control of gun ownership in particular.
What most distinguishes the reasons for why each of the countries sought independence[1] is that while the American colonies fought a civil war to free themselves from tyranny and oppression and to establish their rights, Australia’s independence was achieved amicably, very gradually, and did not involve any motivation related to concerns or desires regarding rights. These key differences are clearly reflected in the governmental structure of each country, and how the founders of each country chose to protect the rights and freedoms of their citizens.[2]
While American colonists chose to protect the rights of Americans by entrenching them in State and Federal Constitutions, the founders of the Commonwealth of Australia chose not to protect the rights and freedoms of its citizens in the manner other than that chosen by the USA over 100 years earlier.
They did so for a number of reasons. First, as noted earlier, in contrast to the US, there was no wide-spread focus on rights in the Australia colonies, as Australian independence was achieved peacefully rather than through war and because the desire to become a nation had not been motivated by a wish to acquire rights or throw off oppression. A majority of the Australian constitutional convention delegates also held the view that entrenched rights were likely to ‘impinge on the sovereignty of parliament and limit legislative discretion’. It addition they considered that entrenchment of rights might be insulting and likely to cast an adverse reflection on Australian civilisation. The entrenchment of certain fundamental rights was resisted as some of the colonies as they wished to preserve the right to discriminate on the grounds of race[2] and religion. (Section 25 of the Australian Constitution preserves the right of States to disqualify people of certain races from voting, and section 116 of the Constitution to some extent protects religious freedom but only from Commonwelath law and not state laws.) Delegates were also unable to point to any breaches of rights in the colonies,[3] and on that basis considered a constitutional enshrinement and protection of rights to be unnecessary. With direct reference to the United States, Australian convention delegates expressed a low regard for the effectiveness of the guarantees contained in the American Bill of Rights, noting that while some guarantees were only to be found in the US Constitution, it was also in the US that they were most frequently violated. Perhaps most significantly, representatives of Australian colonists rejected an American style Bill of Rights, because they held the view that ‘the best guarantee of freedom and liberties’ was to be found in the Common law (law based on previous decisions, applied and developed by judges), government directly accountable to parliament, a parliament directly chosen by the people, and an independent judiciary.
However, Australian colonists adopted a number of other aspects of the American Constitution, including a federal structure for state and federal governments, a written constitution, and an independent judiciary to rule on the constitutional validity of governmental actions and legislation.
The rationale for why the founders of the American nation opted to adopt a Bill of Rights and include protections such as the 2nd Amendment appear to be closely tied to the circumstances and needs of Americans in the late 18th century.
The 2nd Amendment provides that,
‘A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’
An armed white population was deemed necessary if the new country was to address the dangers posed by hostile neighbouring countries, European powers, native Americans and African slaves. The 2nd Amendment also reflects the war experience especially in that privately owned weapons played a significant role in the achievement of independence. For these reasons, James Madison, the author of the 2nd Amendment, considered an armed population to be a ‘potential counterweight to tyranny’.
Almost a century later in 1858, Supreme Court Justice Joseph Story also described the 2nd Amendment right as ‘justly considered as the palladium of the liberties of the republic’ since it offers a ‘strong moral check against the usurpation and arbitrary powers of rulers’.
However, for its first hundred years, the Bill of Rights did not play a significant role in American life. Constitutionally it applied only to the actions and laws of Federal Government, and therefore State Bills of Rights continued to be the main protectors of the American peoples’ rights and freedoms.
In 1868, shortly after the conclusion of the American Civil War, the Fourteenth Amendment was ratified. It read,
‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’
As later interpreted by the Supreme, the 14th Amendment came to gradually extend the rights contained in the federal Bill of Rights to State activity.
This interpretation of the 14th Amendment is also said to have significantly increased the importance of the Supreme Court’s interpretation of constitutional rights. But it is worth noting that it was only in 2010 that the Supreme Court ruled definitively that by virtue of the 14th Amendment, the 2nd Amendment applied to the actions and laws of states.
For the first 200 years of its existence the 2nd Amendment was very rarely considered by the Supreme Court, which routinely declined to hear 2nd Amendment appeals from lower courts, arguably indicating that gun ownership rights were to be regulated by the legislatures. And indeed, for most of America’s history, gun ownership was regulated by state and federal legislatures.
The debate over the 2nd Amendment has for some time revolved around two interpretations of the Amendment. One view being that the framers of the constitution intended to limit the federal government’s power to prohibit or severely restrict private ownership of guns. The alternative interpretation, favoured by the Supreme Court in early cases, was that the 2nd Amendment concerned collective rights rather than personal rights. On this basis until 2008 the Court declared that the 2nd Amendment was concerned with the preservation of state militias, and consequently that its scope was confined to weapons suited for common defence or militia use. In 2008 the Supreme Court, somewhat inexplicably in light of the wording of the amendment, held that the 2nd Amendment protects an individual’s right to possess a firearm, and that the right is not connected with service in a militia, but rather relates to traditional lawful purposes of guns such as as self defence within the home.
Traditionally, the 2nd Amendment had been ‘extolled as a ‘fundamental cornerstone of American liberty’, and one that could not be denied free people. More recently, the alarming number of weapons in private hands, the average number of weapons per American household, and the high rate of gun related crime, have served to make the 2nd Amendment right controversial and divisive.
While the Australian Constitution contains some provisions imposing limits on the legislative power of the federal parliament, it is extremely rare to hear Australians suggest that they need to protected against tyranny in the form of an abuse of power by their state of federal governments. This distrust of government and law enforcement agencies and emphasis on self reliance appears to be a part of the frontier spirit or mythology that remains prevalent in America. For this reason some American minorities openly describe the right to bear arms as a guarantee of being able to fight back against governments, legislatures and judges who would seek to take their rights away from them.
It could also be suggested that some of the fear and distrust of government flows from American citizens’ limited say in how they are governed. Quite deliberately, the drafters of the American constitution did not choose a form of government that was ‘too democratic’. Thus while the Republic has directly elected members of Congress (House of Representatives and the Senate), it also has an indirectly elected President who appoints Secretaries (the equivalent of Australian Ministers) from outside of Congress with advice and approval of the Senate, and appoints Supreme Court Justices with confirmation of the Senate.
As in the United States, Australian electors vote directly for a member of the House of Representatives to represent their electorate, and for Senators to represent their State or Territory. However, unlike the United States appointment of a President, an Australian government is formed by the party or coalition of parties, whose elected members make up the majority of elected Members in the House of Representatives. This majority elects the Prime Minister, and the Prime Minister and or the majority (depending on the Party in power), appoints the Ministers and allocated their portfolios. The government is accountable to parliament, and may be brought down if it fails to retain the support of the majority of the members of the House of Representatives.
Like the United States, the Australian constitution stipulates an independent judiciary. Unlike the US process for appointing Justices of the Supreme Court, there is no requirement that nominees for appointment to the High Court of Australia be confirmed. The judiciary’s impartiality and lack of any political alignment is strenuously guarded, or at least is not overt as it sometimes is in the United States.
Provisions for the amendment of the respective Constitutions also highlight the contrast in the manner and extent of the people’s direct involvement in the process. In the United States the procedure set down for the amendment of the Constitution does not directly involve the people. Article five of the Constitution provides that proposals to initiate the Constitutional amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the State legislatures. To become a part of the Constitution an amendment must also be ratified by three-quarters of State legislatures.
In contrast, the Australian Constitution entrusts the amendment of the Constitution, with the exception of its initiation, to the electors. Section 128 of the Australian Constitution requires the process of constitutional amendment to be initiated by both Houses of Parliament, and in the case of deadlock between the Houses, to be initiated twice by one House (with a three month interval in between initiations). All Australians entitled to vote at elections are then required to vote in a referendum.The Constitution is amended if a proposal is support by a majority of voters in a majority of states, and by an overall national majority. It has proven difficult to satisfy this ‘triple majority’ requirement. The success rate currently stands at 8 successful amendments out of 42 amendment proposals put to the people.
Shortly after the 1996 killing of 35 people in Port Arthur, Tasmania, by a gunman armed with assault and semi-automatic guns, Australia’s Prime Minister John Howard banned automatic and semi-automatic firearms and reached a National Firearms Agreement with the states setting up a national gun owners register, a buy back scheme and tighter Australia’s gun control laws. As a result Australian gun ownership, already very small by US standards, was significantly further reduced. Opposition to these restrictions was intense and graphically illustrated in a famous photograph of Prime Minister Howard addressing a large crowd of protestors, with the outline of a bullet proof vest showing through his suit jacket.
The National Firearms Agreement has been un undeniable success. However it has recently been revealed that the 1996 agreement, while largely successful, has not been fully implemented. Consequently a three month national firearms amnesty was announced. It has been a great success, and some fifty-thousand firearms have been surrendered for destruction in the first two months of the amnesty.
The agreement called for a balancing of competing interests. It required the legitimate need for firearms for self defence, security work and other reasons to be recognised, and the need to hunt, to protect livestock and crops from wild animals, and put down sick animals, to be protected. This approach to gun control appears to be little different to the current US Supreme Court interpretation of the Second Amendment, which confines the right to ‘traditional lawful purposes of guns such as as self defence within the home’. The arguments of the American gun lobby at times appear to overlook the fact that the 2nd Amendment does not create an absolute, unqualified right to own guns. In fact no rights are ever absolute, and must be regulated to make them compatible with the rights of others or the rights of the community. While the regulation of gun ownership in Australia is relatively strict, regulation varies significantly from state to state, in America. It is arguably no coincidence that the recent Las Vegas shootings occurred in Nevada, where the legislature continues to drag its feet in implementing tougher gun control approved by its people.
However, it would be inappropriate and unrealistic to suggest that the United States could and should impose gun controls similar to those in place in Australia. To do so would be to dismiss or ignore the many factors that distinguish our countries.
Even if state and federal legislatures in the United States managed to severely restrict and tightly regulate gun ownership, only popular support for the revocation of the 2nd Amendment (currently extremely difficult to imagine) would serve to ensure that gun ownership by Americans could be adequately controlled and regulated by the people’s representatives.
The above considerations suggest that America’s constitutional entrenchment of rights is a recognition of Americans’ self reliance, fear of oppression through abuse of power, distrust of politicians and courts, and lack of confidence that their rights, freedoms and safety can be guaranteed by government. The right to bear arms, reinforces the frontier spirit that Americans hold as their idealised self image. It is a key and emotive right, particularly because it has, and still is recognised as the final defence of personal rights and freedoms, if they are challenged or threatened.
Endnotes
1. The thirteen original states, which ratified the Constitution of the United States between 1787 and 1789, did so for two main reasons – trade and defence. Having just won a war of independence, continuing to be surrounded by potentially hostile neighbouring countries, facing aggressive colonising European powers, and fighting with the indigenous inhabitants, the newly formed and geographically large country inhabited by only some four million citizens, required a central government to ensure that its citizens and borders were protected. As the war of independence had significantly disrupted trade, internally but especially with the outside world, there was also a great need for a central government to regulate and maximise the benefits of trade between not only the thirteen states, but also between the states and the outside world.
In contrast, the reasons why six self-governing colonies chose to unite in a Federal Commonwealth named the Commonwealth of Australia were far less dramatic, but also encompassed defence and trade. While the colonies had small armies, which saw action in the Boer war, a 1889 report concluded that the colonies would not be able to defend themselves without a central government. Tariff barriers, imposed initially by the colonies to protect local industry, obstructed economic growth and trade in general, and needed to be regulated by a central government. The depression and industrial strife in the 1890s, and need for unified banking and currency, also indicated the need for and the benefits of a central government. By the late 19th century the vast majority of Australia’s residents were Australian born, connected by telegraph and railway, and cheered-on an Australian cricket team capable of beating the English. Finally, Australian colonies were united in their endeavours to restrict non-European immigration and keep Australia predominantly white. All these factors served to increase a sense of unity – of being one nation.
2. The thirteen original states, which ratified the Constitution of the United States between 1787 and 1789, did so for two main reasons – trade and defence. Having just won a war of independence, continuing to be surrounded by potentially hostile neighbouring countries, facing aggressive colonising European powers and fighting with the indigenous inhabitants, the newly formed and geographically large country inhabited by only some four million citizens, required a central government to ensure that its citizens and borders were protected. As the war of independence had significantly disrupted trade, internally but especially with the outside world, there was also a great need for a central government to regulate and maximise the benefits of trade between not only the thirteen states, but also between the states and the outside world.
3. That Australian colonists held such racist views may explain why so many fought in the US Civil War on the side of the confederacy and reportedly supported the retention of slavery in America.
4. However, in recent years, the institutions relied on for the protection of rights in Australia have been shown unwilling or incapable of providing such protection for minorities unsupported by the majority of Australians. The absence of entrenched rights and freedoms binding on legislatures has at times left the judiciary powerless to offer legal protection against majority sentiment. For example in finding himself legally compelled to find that indefinite detention of refugees was legal, High Court Justice Michal McHugh described the outcome as tragic, and pointed to an absence of rights entrenched in the Constitution that would provide the High Court with a measure and basis for determining whether legislation is in breach of rights or freedoms.
5. A fact that may surprise Australians and perhaps even some Americans is that the drafters of the American Constitution had initially intended to deliberately omit the inclusion of a Bill of Rights, enshrining and protecting personal rights and freedoms, from their Constitution. As the Constitution gave the central government limited powers, and left the remaining (residual) powers with the states, the framers of the Constitution did not wish to further restrict the powers of the central government in order to protect rights. They also considered that existing State Bills of Rights provided adequate protection of citizens rights. The 1791 Bill of Rights (the first ten amendments of the Constitution) is commonly explained as a concession granted to Anti-Federalists in order to secure their support for the Constitution. Irrespective of the reasons for the delayed inclusion of rights into the Constitution, it is uncontested that on becoming a nation Americans chose to protect their rights by entrenching them in State and Federal Constitutions.
[6] Some historians also suggest that the inclusion of the 2nd Amendment was an attempt to secure an existing right – one said to originate from an English right and duty to be armed, and set out in the 1689 English Bill of Rights as the right of English Protestants to “have arms for their defence suitable to their conditions and as allowed by law”. This right, some argue had been increasingly restricted in England to ensure that the lower classes were law abiding. However, such restriction was not possible in the American colonies due to the prevailing frontier conditions requiring ownership of firearms.
7. Justice Story appeared to be saying that an armed population serves to deter government overstepping its authority or not exercising it according to law. Whether or not Justice Story was implying that the 2nd Amendment was there to enable citizens to defend themselves against a tyrannical government, this was a rather strange remark from a Justice of the Supreme Court which since 1803 declared it to be its role to interpret the constitution, and hence to invalidate any usurpation and exercise of arbitrary power by the government.
8. On this basis, by a 5-4 majority, the Court found that a law banning handguns and requiring privately owned guns to be “unloaded and disassembled or bound by a trigger lock” breached the 2nd Amendment and consequently was invalid.
9. The Electoral College is the process chosen for the election of a President. As part of the checks and balances that characterise and dominate the structure of American government, this process is intended to be a compromise between the President being elected by Congress and being directly elected by the people.
10. Some of the limited direct involvement by the people is relatively recent. While presently American electors directly choose their Senators and Representatives, it was not until 1913 that the 17th Amendment replaced state nomination of senators with direct election by the people.
11. To date of approximately 12 thousand amendment proposals introduced in Congress, only 33 have been sent to state legislatures for ratification, and of those only 27 have been ratified and become a part of the constitution.
12. In addition, if an amendment proposal seeks to directly affect a state, a majority of voters in that state must also support the proposed amendment.
13. In spite of the already significant role assigned to the people in the process of constitutional amendment in Australia, it has been suggested that the Australian people ought to be able to initiate constitutional amendment without having to wait or count on a majority of federal politicians (or at least a majority in either House) to support the proposal. Such an initiation by the people could occur if the amendment process could be initiated by a petition proposing an amendment. Such a citizen initiated referendum had been proposed in the first constitution convention but was not ultimately included in the Constitution. In 2013 the Citizen Initiated Referendum Bill was introduced in Parliament. It provided that the constitution be amended to enable a petition containing the signatures of at least 1% of all registered electors to be an alternative to the initiation of the amendment process by parliament. However, the Bill failed to gain the required support in Parliament