The Guns of Summer in the US and Canada: Whose Rights Count?

[ Photo by David Ohmer, Creative Commons License. Sculpture by Carl Fredrik Reuterswärd. ]

It takes four days for the public to turn away from news of a mass shooting in the United States (US). Within those four days, there will be up to eight more mass shootings and hundreds more gun-related deaths with little news coverage. Meanwhile, lack of effective laws and poor enforcement allow “crime guns” to filter through porous US borders to neighbouring countries.

After each mass shooting, gun control advocates demand that governments “do something.” US and Canadian legislators take piecemeal measures as they twist in hot winds of polarized uproar that pits “gun rights” against “gun control.” Strikingly missing is a focus on people’s right to life and security and other fundamental human rights guaranteed by international law.

The breathtaking scale and impact of gun-related violence and harms

The scale and impact of human rights violations from gun-related deaths and injuries in the US is breathtaking. The impact of the misuse of firearms devastates whole communities as the lives of children, women, and men are brutally cut short or shattered by gun-related murders, suicides, negligence, or accidents.

This year, as of mid-July, the Gun Violence Archive records 337 mass shootings in the US. During the first two weeks of July alone, there were 42 mass shootings – too many to register in the daily news. While mass shootings in US schools, places of worship, and public venues grab headlines, most gun violence – 70 percent – involves domestic violence, with women disproportionately injured or killed. In 2021 more than 45,000 people in the US lost their lives in gun-related incidents, including suicides.

The US has far more firearms per capita than any other country in the world (120.5 guns per 100 persons). The US also has more gun-related homicides per 100,000 than any other high income country; 79 percent of homicides involve firearms.

Less known is that Canada ranks sixth in the world in gun possession (34.7 guns per 100 persons), and 37 percent of homicides are gun-related. In Canada, alcohol abuse and domestic violence, combined with the presence of a gun, are strongly correlated with gun-related deaths and injuries resulting from accidents, homicides and suicides.

Gun violence in the US and Canada has surged since 2020. Firearms are now the leading instruments of deaths of children and teenagers in the US. In Canada, gun-related deaths rank fifth among the causes of child mortality. In both the US and Canada, women, LGBTQI+ persons, Black, Indigenous, and persons from visible minorities face disproportionate risk of firearm deaths or injuries.

Myths perpetuated by the firearms business lobby claim “it’s not the guns;” rather it’s “bad guys,” mental illness, determination to commit suicide, a “culture of violence,” violent videos and computer games, and that public safety would improve if more “good guys” have guns. Yet evidence is clear that putting a gun in the mix dramatically increases the likelihood of a lethal outcome. Also clear is that the majority of Americans support universal background checks, bans on assault weapons and high-capacity magazines, and “red flag laws” that provide for court orders to take guns away from people who pose risks to themselves or others.

Missing in the debates: States’ duties to protect human rights of everyone

Rarely mentioned in the acrimonious debates about misuse of guns are the international law obligations of States to protect human rights. Everyone – including every child – has the fundamental right to life and security of the person, the right to freely manifest their religion, the right to freedoms of peaceful assembly and association, the right to equality before the law without discrimination, the right to enjoy their culture, and the right to participate in public and political life. The exercize of these rights is threatened by the failure to prevent and halt the intentional or unintentional misuse of firearms.

These rights and freedoms are guaranteed by the 1948 Universal Declaration of Human Rights (UDHR) and by the International Covenant on Civil and Political Rights (ICCPR), to which both Canada and the US are parties. The ICCPR notes that every child must be given special protection “without any discrimination.” Canada and the US are also parties to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) which requires States to “eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law…” The ICERD includes the right to equality of health and education. The ICCPR and the ICERD are legally binding on governments at all levels in the US and Canada.

Included among the obligations of States is the duty to protect against human rights abuses by third parties, including business enterprises operating within their territories or under their jurisdiction. The United Nations (UN) Guiding Principles on Business and Human Rights (UNGPs) make it clear that business enterprises themselves have the duties to respect rights and to “address adverse human rights impacts with which they are involved.” This applies to all firearms industries and businesses.

UN concern about gun violence

Two of the recent mass shootings in the US attracted the attention of the UN Secretary-General, António Guterres. The Secretary-General’s spokesman called the May 14^th mass killing of 10 people in a Buffalo supermarket a “vile act of racist violent extremism.” Mr. Guterres aptly used the terms “heinous” and “heart-wrenching” about the May 24^th gun murders of 19 young girls and boys plus two teachers in their Texas elementary school by an 18-year old high school student.

While the Secretary-General did not himself mention human rights per se, UN human rights bodies have for decades urged the US to curb its staggering level of gun violence. The poor record of US governments to protect the population against firearms violence has been criticized by UN bodies including the Humen Rights Committee (HRCttee) as well as the Inter-American Commission on Human Rights, and international non-governmental organizations such as Amnesty International.

While the US is a scandalous international outlier, gun violence is a global problem. On 7 July 2022 the UN Human Rights Council adopted a unanimous resolution on civilian acquisition, possession and use of firearms. The resolution was proposed by Ecuador and Peru. The US was part of the consensus. While the resolution avoids mentioning particular countries, it pointedly expresses concern about “shootings in schools, places of worship and other public premises.” The resolution calls on all States “to do their utmost to take appropriate legislative, administrative and other measures, consistent with international law, in particular human rights law, and their constitutional frameworks, including comprehensive, inclusive and evidence-based public policies, tailored to address the root causes and risk factors driving firearms-related violence…”

Lack of implementation of international human rights obligations

Despite international obligations, US governments and courts persist in giving priority to the US Constitutional second amendment right to the US Constitutional second amendment right to “keep and bear arms” (“2A”). Both the 2007 (District of Colombia v. Heller) and 23 June 2022 (New York State Rifle and Pistol Association v. Bruen) decisions of the Supreme Court of the US (SCOTUS) on the right to keep and bear arms interpret 2A as broadly ensuring a broad individual right to possess and use small arms that are capable of being carried by a person. This interpretation has fettered government attempts to regulate civilian possession of firearms.

The 2007 and 2022 SCOTUS decisions do not make references to international human rights laws binding on the US at every level of government. The June 2022 SCOTUS decision disregards Amnesty International’s amicus brief which details the international law duty of the US to protect the human rights of all those under its jurisdiction.

The silence of the SCOTUS regarding US international law obligations conceals the US Constitutional provision that treaties are part of the “supreme Law of the Land” and masks well-settled US jurisprudence that a statute “ought never to be construed to violate the laws of nations if any other possible construction remains.” International law is an important interpretive tool for US courts to consider when seeking to ensure that potentially ambiguous US domestic laws are consistent with existing US international obligations. The fact that the case reached the SCOTUS and resulted in several dissenting opinions indicates sufficient ambiguity to warrant careful consideration of international law arguments.

In the wake of the SCOTUS gun decision on 23 June 2022, and days after the successful passage of the first major (albeit modest) federal gun safety legislation in the US in 30 years, the US ambassador to the UN Human Rights Council in Geneva took pains to ensure that the UN Human Rights Council’s 7 July 2022 resolution on firearms was not adopted without a US statement emphasizing State sovereignty and a reminder of the need for solutions that “do not infringe upon the Constitutional second amendment guarantee that citizens have the right to keep and bear arms.”

No, gun rights are not human rights

Gun rights proponents often claim that “gun rights are human rights” or even that the right to a gun is “God-given.” These notions fly in the face of well-established international human rights norms. Since 1975, the powerful US gun lobby has successfully deployed the language of the right to self-defence to promote gun sales and thwart public support of effective regulation of firearms possession, including semi-automatic weapons.

People do have the international right to defend themselves, but only in ways that are strictly necessary and proportionate to the dangers or threats faced. The UN HRCttee made this clear in 2014 when it expressed concern about “the proliferation of …[US] laws which are used to circumvent the limits of legitimate self-defence in violation of the State party’s duty to protect life.” The HRCttee urged the US to repeal “stand your ground” laws that allow people to shoot others even when there is another way to escape danger, and to “ensure strict adherence to the principles of necessity and proportionality when using deadly force in self-defence.”

Proliferation of guns in the US harms people in Canada

The proliferation of guns and poor regulation of firearms in the US affect the safety and wellbeing of Canadians. According to Toronto police, more than 85 percent of “crime guns” in the city are smuggled into Canada from the US. Three of the guns involved in the April 2020 mass shooting in Nova Scotia came illegally from the US.

Guns that have been legally acquired may be diverted through unlawful transfers, straw purchases (purchases made on behalf of an undisclosed third party) or illegal modifications. This fits with global patterns. In 2020, the UN High Commissioner for Human Rights, Michelle Bachelet, issued a report noting that “the overwhelming majority of illicit firearms in the hands of non-State actors were manufactured legally and prepared for commercial distribution before being diverted at some stage in the supply chain.”

Canada’s parliamentary Sub-Committee on Public Safety issued an April 2022 report finding that Canada’s borders are porous for several reasons, including understaffing of the Canada Border Services Agency (CBSA), the need for better coordination between CBSA and the Royal Canadian Mounted Police (RCMP), and an almost complete lack of screening of rail traffic coming into Canada.

Information about sources of firearms used in crimes in Canada is currently limited. Canada has no national database on origins of crime guns, so there is insufficient information available about the origins of firearms used in crimes in Canada. In Canada, tracing of seized firearms may be done in cooperation with the US Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The top sources of firearms traced to the US are the states of Ohio, Texas, Florida, Georgia and Michigan. However, police services across Canada are not required to conduct gun tracing.

Piecemeal progress

Recent changes to US rules provide additional tracing tools that aim to eliminate so-called “ghost guns” which have no identifying serial numbers. The new rule clarifies that “buy build shoot” gun kits are included in the definition of “firearms” and require commercial manufacturers of these kits to be federally licenced, run background checks, and place serial numbers on gun kit components.

However, current patchwork approaches to gun violence in the US and Canada do not adequately address all the issues. Critics of the Bipartisan Safer Communities Act, in force as of 25 June 2022, say the legislation does not go far enough. In particular, critics worry that the law fails to raise the legal age for buying semi-automatic weapons from 18 to 21, fails to ban assault-type weapons or high-capacity magazines, and fails to require gun storage safety locks. While the law’s provision of increased resources for mental health are welcomed, this measure is seen as unlikely to result in less gun violence, because only a tiny percentage of people with mental illness become violent. The package creates additional federal criminal offenses for interstate gun trafficking and making straw purchases.

In Canada, proposed legislation, Bill C-21, freezes the sale of handguns, bans the sale of long-gun magazines that hold more than five rounds, and implements a mandatory buyback of assault-style weapons. It also provides for “red flag” prohibitions and “yellow flag” suspensions of gun licences. Critics point out that the Bill fails to adequately address illegal gun trafficking and smuggling, and will not curb the proliferation of untraceable “ghost guns” manufactured at home with 3D printers using instructions downloaded from websites.

It is believed that the new US and Canadian legislation will help incrementally to reduce gun violence. However, hardline conservative opponents of the new US bipartisan gun safety law continue to argue that the law will “restrict lawful gun purchases, [and] infringe upon the rights of law-abiding Americans.” In Canada, Conservative critics say that Bill C-21 focuses too much attention on limiting rights of law-abiding gun owners and not enough on cross-border gun trafficking.

Despite majority public support for reasonable gun control regulation, US authorities continue to defer to the economic interests of firearms industry with the support of legislators and courts that cherry-pick the Constitutional “2A” right to possess firearms at the expense of other US Constitutional rights and freedoms, and at the expense of international law obligations and the rights of people in neighbouring countries. An overemphasis on “gun rights” is at odds with the duty of States to ensure the rights of the population to enjoy the full range of rights and freedoms guaranteed by international law, particularly life and security. International law requires that the emphasis be shifted from “gun rights” to human rights.

Comprehensive solutions require a shift from gun rights to human rights

It is important to underscore that both the US and Canada have made legally binding treaty commitments to uphold international human rights. This is nothing new. US scholars Leila N. Sadat and Madaline George have set out in detail how US governments’ persistent failure to exercize due diligence by adopting effective measures to prevent and reduce gun-related violence “has limited the ability of Americans to enjoy many fundamental freedoms and guarantees protected by international human rights law.” Policy guidance may be found in 2019 and 2022 reports of the UN High Commissioner for Human Rights based on best practices of States for curbing human rights violations resulting from civilian possession of firearms.

A clear and sustained focus on the full panoply of interrelated human rights of all persons will ensure that a complete range of practical questions are asked and addressed in non-partisan ways by all stakeholders, including governments, businesses and ordinary citizens on both sides of the US-Canada border. The goals of all these stakeholders needs to be refocussed on solutions that will ensure the protection, respect, and fulfilment of all civil, political, economic, social and cultural rights, including rights of children, women, and men without any discrimination.