The Second Amendment: An argument against an Australian Bill of Rights #auslaw

I usually put some song lyrics in the title.  A few times now I’ve discussed issues where the fear of looking too glib has meant that I can’t go with that convention.  This is another of those.

First things first, I do not understand why civilians can purchase any kind of gun.  Even for farmers.  When I was a kid, we had guns on the property.  They were used twice: once to deal with a snake, another to deal (unsuccessfully) with a fox.  What sort of moron uses a gun to deal with a snake?  My father.  As I grew up, only the weirdo kids at school were into guns.  They were exactly the kind of people that you didn’t want anywhere near guns.  ‘Maaaate, we shot a defenseless creature.  Awesome.’  Although I know significantly fewer farmers now that I’m an employable nerd, the ones that I do know don’t have guns.  Or any interest in them.  In conclusion, why are guns able to be purchased by individuals?

Second things second, the shooting at the primary school was horrible.  I’m not usually the kind of person who gets emotionally affected by news reports, but this one made me feel ill.  There was nary a minute between seeing the item flash up on my newsfeeds before people went immediately to their stock standard battle positions regarding the Second Amendment.  What is it?  Are we that eager to have opinions about things?  Do we have such an incredible need to find somebody to blame (apart from the obvious person)?  It was just utterly vulgar.

Yesterday’s atrocity is yet further evidence why Australia should not adopt a Bill of Rights.

In 1996, the Howard Government was able to pass legislation to severely restrict the sale of firearms.  It was able to do this because there are very few restrictions on Parliament’s ability to pass legislation (provided there’s a head of power to do so).

When the drafters thought up the Second Amendment, they had no way of knowing that it would result in the school shooting.  No way at all.  When legislation is passed, it’s taken out of the author’s hands and into the legal ether of the court system.  It takes on a life of its own.  Some people might argue that this is a good thing: the Refugees Convention, for example, is doing things that the people who wrote it could not possibly have foreseen.  Other people (like me) look at this with a great deal of suspicion.  If the legislation is taking on a life of its own, how is it being controlled?  In whose interest is the legal principle morphing?

For most laws, there’s an easy remedy to this problem: pass a new law!  Intellectual property law is throwing up weird outcomes?  Law reform!  Contract law is throwing up weird outcomes?  Law reform!  Too many individual pieces of human rights legislation?  Omnibus law reform!

It’s bits of legislation which are difficult to change which throw up huge problems.  The Refugees Convention extends rights to asylum seekers tacitly.  Most of our problems in the debate is a result of people being imprecise with terminology.  If the Refugees Convention were easy to amend, it could be clarified to extend rights to asylum seekers.  Instead, we know that if the Refugees Convention were proposed today, nobody would sign it.  As a piece of legislation, it’s immutably stuck in the past.

Constitutional laws are similarly problematic.  Take section 25 of the Constitution:

For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

I still remember the ‘WTF?’ face I pulled when I first read that section.  Holy crap, it looks horrible.  Disqualifying races from voting?  Oh, those racist white male drafters of the Constitution.  What a bunch of racists.

It turns out that the person who proposed the section, Andrew Inglis Clark, was a progressive visionary.  Section 25 was a way of motivating States to be non-discriminatory in their electoral laws.  If the law of any State discriminates against a race in their electoral laws, the State will be penalised when it comes to representation in Parliament.  It’s really clever.

If you read the YouMeUnity document, you don’t get that background.  I guess ‘Be Informed’ just means ‘Here is the information we want you to have’.  Informed referenda are, it seems, overrated.

Section 25 now looks like a weird bit of historical quirk.  Do we still need this protection in the Constitution?  On the other hand, do we gain anything by removing the protection?  All interesting ideas that you won’t find explored on the websites of people interested in the proposed referendum.

Other sections of the Constitution have played out strangely and, indeed, completely contrary to what the drafter (or, especially, Sam Griffith) thought they would.  Consider  s51(xxxv):

conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State

Until the Engineers’ Case, nobody would have thought that this line would signal an end to implied intergovernmental immunities.

Sir Isaac Isaacs sure showed them.

Short of a referendum, Sir Isaac Isaacs breathing life into the conciliation and arbitration power will be the moment where the course of Australian law changed.  Sure, he got it right on this occasion (screw the States) but this could have gone in an entirely different direction.

And that’s the problem with Constitutional rights.  You don’t know now how the right will end up being deployed tomorrow.  Having a well regulated militia for the security of the State probably sounded like an intuitively obvious assertion back in the 1700s.  Today, we’re affected by another gun-related tragedy.

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3 thoughts on “The Second Amendment: An argument against an Australian Bill of Rights #auslaw

  1. Pingback: Walking in the countryside it seems that the winds have stopped… Could you vote for the @SecularParty? #auspol | Only The Sangfroid

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