Monday, 23 July 2012

ECHR v The Second Amendment

The Aurora shootings have, it is fair to say, shocked the world, and sparked yet another debate about the American obsession with gun ownership. Certain segments of society over there will say I should keep my opinion to myself because I'm not American and therefore have no right to say anything about their laws and society - not something I agree with, although anything I do have to say has to be qualified by me saying any opinion formed is from the outside looking in. It's those same segments who refuse to debate whether it's right to own a gun based on their 'rights' laid down in the Constitution. I read an excellent short essay this morning on the provisions relating to the right to bear arms as laid out in the American Constitution this morning, and before  I offer my opinion on other issues I'd advise reading that. I'd also advise reading some of the reactions to that piece.

I'm going to approach the issue of American gun ownership from the perspective of an English lawyer with a background in the European Convention on Human Rights. Whilst the ECHR has no power in the US, I've always respected it as a beacon of the basic rights a human being should have, and it's high time the US looked at it and adopted at least some of its principles into their own law.

To start, I'm going to go on a tangent. The US Constitution is a document it's possible to respect from afar, but when you look at it from a modern lawyer's perspective it's easy to see how the once-peerless document is no longer what it should be. For over two centuries it has stood at the heart of US law and politics. And that's the problem: it was written over two hundred years ago. Since it was written, the world has moved on. Political forces have changed, society has developed.

There's nothing to force a change to the US Constitution. Thus we see the advantage of an unwritten constitution based on convention over a single constitutional document: flexibility. Should apparatus exist within the legislature to enable the continued development of a constitutional document - say, a court who can rule on the interpretation of provisions within the constitution and suggest amendments to the legislature - then there's not so much of a problem. But this doesn't exist in the US. Hence, we see a dusty document being clung to as sacrosanct even though the world it was relevant in passed from memory a hundred years gone.

A brief comparison is required between the ECHR and the US Constitution. One is what I would describe as a living legal document, whereas the other is a dead one. The European Court of Human Rights (our Home Secretary's favourite legal chamber) rules on interpretations; over the years, as the world has moved on, the Convention has developed with it to reflect changing values in society. It's not perfect, and will be a bone of contention for years to come with politicians, journalists, lawyers, and other commentators alike. But in its sixty-some years of existence it has already fundamentally changed in substance. The Articles themselves have remained the same, broadly speaking, but if you look closer you'll see how things have changed.

The Convention in place now is not the Convention as it was enacted in 1953. The modern Convention bans capital punishment, for one. The European Court of Human Rights has pushed through rulings that have had far-reaching effect on the reading of the ECHR - on topics such as gay rights, transsexuality, torture, the right to a fair trial, and the right to life. Recent commentators have said the ECHR has moved away from its original purpose, to which I'd say the world has moved on. This isn't a world the treaty-makers of 1950 would recognise in its values. We're a more open, more permissive society; the fundamental documents need to reflect this, and the ECHR has the mechanisms for its continued development enshrined in its fabric. This can only be a good thing.

To compare: Amendments to the US Constitution are near-impossible to force through. The courts are bound by it, and have no power to make amendments. The legislature itself needs a two-thirds majority to push an amendment through, and in over two hundred years only twenty-seven amendments have been made (the most recent of which was in 1992, and a staggering fifteen of which were made before the start of the twentieth century). The fabric of the Constitution remains as it was when it was drafted - and that includes the Second Amendment, the right to bear arms.

The mini-essay I linked to should have given you an idea of what the Second Amendment is really about, and just why it appears ludicrous that so many people should hold it as sacrosanct.

A modern human right, in the Western world, is the right to life, or the right to freedom from slavery, or from torture, or freedom of speech, or any of the others enshrined in the European Convention on Human Rights. It's notable that the 'right' to bear arms doesn't appear anywhere in the ECHR. What does appear is the right to life: or, to put it more bluntly, the right guns are designed to infringe. From a ECHR-centric standpoint, the 'right' to bear arms and the right to life are mutually exclusive. And I know which is more important to my mind.