Sunday, March 17, 2019
The Connecticut Supreme Court ruled that the Sandy Hook parents' lawsuit against gun manufacturers may proceed. The Court addressed the ability of the parents to sue manufacturers who have been granted essentially blanket immunity for companies that manufacture firearms, including Remington who manufactured the firearm used by Adam Lanza, the young man who used the weapon to kill 20 first graders and others at the Sandy Hook Elementary School.
While many of the parents' claims were dismissed, their claim that Remington was neglectful in its marketing of the weapon was approved to move forward. As the New York Times reported "In the lawsuit, the families seized upon the marketing for the AR-15-style Bushmaster used in the 2012 attack, which invoked the violence of combat and used slogans like “Consider your man card reissued.” Such advertising, the lawsuit alleges, was designed to appeal to troubled men such as the Sandy Hook shooter. Families of other victims are watching this suit. If successful, gun manufacturers should expect a dramatic increase in lawsuits connecting their marketing to deadly actions taken by other shooters.
Parents whose children have been murdered through gun violence have some dignity restored. Having suffered unspeakable horrors, parents of gun-killed children have been cruelly ignored and disrespected through our political and legal systems. The opinion of the US Supreme Court in the case of The Town of Castlerock v Gonzales while acknowledging the horrific facts, denied any relief to the mother. While steeped in legal theory, the decision offended common sense that demands that the extreme indignity of losing children through violence be recognized and remedies be provided. The state played a direct role in the harm that came to the Gonzales girls. The state may not have been a party to the Sandy Hook killings, but the state was the player who deprived the families of a remedy when it shielded the gun manufacturers liability.
Only remedy or the offer of one can help restore dignity to the families whose federal legislators refused to alter gun laws that might prevent future slaughters. The parents - and many in the country - believed that the deaths of 20 first graders would motivate changes in gun laws, but instead, legislative doors were slammed on them. Now the courts may provide a remedy - and at minimum a forum - for the grieving.
Monday, April 2, 2018
Continuing the discussion on Gun Violence and Human Rights are guest bloggers Professor Leila Nadya Sadat and Fellow Madaline George discussing the U.S. government's failure to act on gun violence as a violation of international human rights obligations.
Gun Violence in the United States
The nearly 300 school shootings in the United States since 2013 are especially problematic. They victimize a young and captive population, as most children are legally required to attend school and shootings have occurred in state-operated public schools. On February 14, 2018, a nineteen-year-old gunman killed seventeen people in his former high school in Parkland, Florida, leading to a public outcry and renewed demands for legislative action. Yet government authorities have not been particularly responsive: the Florida legislature refused to consider an assault weapons ban just days later and although one week after the shooting President Trump advocated for gun control measures, less than two weeks later, he changed his mind.
This crisis has created a hemisphere-wide pandemic as well. Approximately 213,000 guns are smuggled across the U.S.-Mexico border each year. And from 2014 to 2016, 50,133 U.S.-sourced guns were recovered in criminal investigations across fifteen American States. Over 70% of guns recovered by Mexican law enforcement since 2007 have been traced to the United States, while in the Bahamans and Jamaica, the rate rises to 80-90%. The United Nations Office on Drugs and Crime reported that easy access to guns was a major contributing factor to Latin America’s 2010 gun-related homicide rate exceeding the global average by over 40%.
The United States is an extreme outlier in terms of gun violence. We know from other countries, and the differences between U.S. states, that gun control laws work. Australia has not had a single mass shooting since implementing the National Firearms Agreement (NFA) in 1996 and now has nine times fewer gun deaths per 100,000 people than the United States. The United Kingdom adopted two firearm laws in 1997, including a ban on personal handguns. The U.K. now has about 6.5 guns per 100 people, juxtaposed to the U.S.’s nearly 1:1 ratio. And compare the 11,004 gun-related homicides in the United States in 2016 to just 26 fatalities in England and Wales. The evidence that stricter gun control laws result in fewer deaths, and of the correlation between reduced gun ownership and reduced gun violence, is found elsewhere too, in Japan, Switzerland, and Israel, just to name a few. This is true at the state level as well: U.S. states with stricter gun laws have lower levels of gun violence.
“Gun rights” advocates argue that the Second Amendment prohibits the adoption of tighter gun laws, yet even after District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), sensible gun regulations can be adopted. The federal courts have already sustained state assault weapons bans and other regulations of firearms. Nonetheless, in spite of climbing fatality rates, federal gun laws have become increasingly lax, with the federal Assault Weapons Ban expiring in 2004. The federal government has also prevented the Center for Disease Control from conducting gun violence research, and a “Concealed Carry Reciprocity Act” was passed by the U.S. House of Representatives in December 2017, requiring concealed carry permits issued in one state to be honored by all U.S. states. The combined effect of lax federal and heterogeneous state gun control laws exposes U.S. citizens to a high risk of gun violence and death.
Enter International Human Rights
Because “human rights begins at home,” the Harris Institute launched the Gun Violence and Human Rights Project following the 2017 Las Vegas massacre to re-direct the conversation on U.S. gun violence away from the gun rights of the shooters and towards the human rights of the victims.
International human rights law imposes specific obligations on States to protect their citizens. Our project’s initial research suggests that the failure of the U.S. government to exercise due diligence with respect to preventing and reducing gun-related violence violates its obligations under international treaties ratified by the United States as well as customary international law.
U.N. bodies have expressed concern about the human rights issues raised by the gun violence epidemic for several years. The U.N. High Commissioner for Human Rights released a report detailing the human rights concerns associated with the private purchasing, possession and use of guns, finding that “[f]irearms-related violence and insecurity […] pose direct risks to the rights to life, security and physical integrity, and also affect other civil, political, social, economic and cultural rights such as the rights to health, education, an adequate standard of living and social security and the right to participate in cultural life.”
As a member of the Organization of American States, the United States is required to respect and guarantee the rights protected in the OAS Charter and the American Declaration of the Rights and Duties of Man, including the rights to life, to health, to education, and to take part in the cultural life of the community. On February 27, 2018, the Harris Institute presented its initial findings to the Inter-American Commission on Human Rights and requested that the Commission urge the United States to adopt international best practices with respect to the sale and regulation of firearms, hold a thematic hearing with survivors, families of victims, and representatives of impacted communities, and conduct a study on school shootings.
The Institute is now considering U.S. obligations under other international human rights treaties including the International Covenant on Civil and Political Rights, the Torture Convention, and the Convention on the Convention on the Elimination of All Forms of Racial Discrimination. The Human Rights Committee has already found that “the obligation [of the U.S.] to effectively protect also requires efforts to curb violence that include the continued pursuit of legislation requiring background checks for all private firearm transfers.” In addition, given the public health crisis posed by firearms in the United States, the World Health Organization may be concerned as well.
In short, there is a robust international framework applicable to the U.S. gun violence crisis. Our preliminary findings suggest that there is no doubt that this epidemic deprives U.S. citizens of their fundamental human rights due to the epic failure of the government to protect them.
Sunday, April 1, 2018
This week the HRAH Blog runs a symposium on aspects of Gun Violence and the interconnection with Human Rights. Professor Jeremiah Ho leads the discussion with a look at recent commentary on the second amendment.
by Jeremiah Ho
Last weekend, the March for Our Lives in D.C. and other U.S. cities externalized one of the boldest reactions to the need for stricter gun control and safety regulations than we’ve seen in the past two decades since the Columbine High School shootings in 1999. Stoked by the February gun violence at Parkland, Florida’s Marjory Stoneman Douglas High School, those who sought tighter gun regulations expressed their thoughts and voices at marches and rallies across the U.S., from D.C. to even smaller cities, such as Providence, Rhode Island (where yours truly resides).
A few days later, with the momentum still lingering, retired Supreme Court justice, John Paul Stevens, penned an op-ed in the New York Times, calling for the repeal of the Second Amendment. For those who might have missed it, the link to the op-ed is here.
In his own post-Court and post-dissenting position from 2008’s District of Columbia v. Heller, Justice Stevens wants to move us further in the gun control debate by advocating for the idea of repealing the Second Amendment entirely. His basis for doing away the Second Amendment is historical. As he observes, “[c]oncern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment, which 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.’ Today that concern is a relic of the 18th century.”
Not hard to surmise, a lot of voices in both praise and disagreement have gathered in reaction to Justice Stevens’ conclusive, but not necessarily illogical, idea of repealing the Second Amendment. Just one day later, the Times published a collection of readers’ comments to Justice Stevens’ op-ed. Certainly, it is not the first op-ed in the Times that have called for repealing the Second Amendment. I recall Bret Stephens penning one last fall, urging the same but by weighing out the different alternative options to a repeal and by analyzing the data behind gun violence. Perhaps Justice Stevens’ article was written with broader strokes in order to appeal more emotionally to readers while the optical impact of the March for Our Lives weekend was still in the national imagination. Whereas by comparison, Bret Stephens’ op-ed seemed to persuade us more cerebrally. Nevertheless, the deliberate timing of Justice Stevens’ op-ed harkens strategically to something that the Bret Stephens’ op-ed had alluded. Where Bret Stephens wrote that “[r]epealing the Amendment may seem like political Mission Impossible today, but in the era of same-sex marriage it’s worth recalling that most great causes begin as improbable ones,” Justice Stevens seemed to disagree by warranting that “a constitutional amendment to get rid of the Second Amendment would be simple.” Bret Stephens did not have the momentum from the March for Our Lives, but both op-eds seem to be playing upon conceptions of political incrementalism—a historical and political process timeline that many social and political issues—such as marriage equality as Stephens’ rightfully notes—have played themselves out to resolution. Within the gestures of incrementalism, Justice Stevens’s article is closer in time to a catalytic movement for gun control now in March 2018, than perhaps Bret Stephens’s piece was in October 2017.
I do not profess to know exactly how politically or legislatively simple or difficult it would be to repeal the Second Amendment. NPR has a great video article about the difficulties of repealing the Second Amendment. However, I do think that Justice Stevens was taking advantage politically in the moment while the pendulum toward regulation seemed to be swaying. From an incrementalist’s perspective, there are several things in the national imagination on guns that will need to be debated through before a repeal is possible—including the false nostalgia surrounding guns, the historical misnomers, the masculine culture that condones gun worship, and the endowment effect.
But perhaps while that pendulum is swinging—if it indeed is—it could also be time to raise up the human rights rhetoric in favor of gun control. For years, proponents of gun rights have used the “gun rights are human rights” equation to engender and embolden the idea that the freedom to own guns is associated with civil liberties and must be protected. Along with the professed ambiguities of the Second Amendment, such rhetoric has helped assail the notion that owning a gun is basic, fundamental, constitution, and human. However, all of this is incorrect. A human right provides protection or freedoms over a quality that intrinsically makes us human beings and guarantees the most basic needs associated with that intrinsic quality. Access to such critical things as water, food, shelter, and adequate healthcare are within our human rights. Beyond that, our ability to freely participate in our society, despite our differences in race, gender, sexuality, religion, ethnicity, or disability status, is a human right because such free participation, as part of belonging to a society, is integral to preserving our dignity and identity.
Owning a gun, from this perspective, is not integrally associated with being a human being. Gun ownership isn’t about identity—but is rather a product of false nostalgia. Although useful in hunting, guns are not basic to our survival for food. Gun ownership is more akin to a licensed privilege rather than a basic, fundamental right.
But what about gun violence as a human rights issue itself? In the aftermath of Parkland and the March for Our Lives, the human rights perspective against gun violence has traction and should rise as focal point—even if rhetorical at this point—to continue pushing that pendulum toward stricter gun laws. Amnesty International, for instance, has announced its efforts to shift the attention of the gun debate into the human rights forum—not about owning guns as a human right, but toward the ability for our society to provide safety against gun violence as a basic human rights necessity.
Perhaps in this way, ideas from Justice Stevens, Bret Stephens, and others about repealing the Second Amendment would be a possible ultimate goal of this political incrementalist narrative. Or perhaps stricter gun laws might be the end solution. But in order to get there, we ought to use human rights rhetoric correctly and ethically to help push that agitated pendulum.
Thursday, February 22, 2018
The survivor youth of the Parkland Florida shooting see the duplicity of politician's sympathy. Action to prevent gun violence is what the survivors are looking for, not words. Senator Rubio accepted over $3,000,000 in NRA funding and received its A+ rating. The hypocrisy of his offering sympathy is as obvious as it is offensive.
Mr. Rubio argues that no law would have prevented the Parkland massacre. The evidence is otherwise. Austraila has virtually eliminated mass shootings since passing its 1997 law banning semi-automatic and other weapons. The US has never had such a ban so Mr. Rubio has no basis for arguing that a law will not prevent gun massacres. That Mr. Rubio and others are unwilling to experiment with a ban that might protect children, may hint at the size of the monster he and other legislators created when they accepted funding from the NRA. Banning future sales of automatic and semi-automatic weapons is one thing. Collecting those currently owned is another. Perhaps the politicians' fear is that they will become targets and a revolt of sorts will ensue. Maybe. But a ban has to start sometime.
That the US is willing to sacrifice youth of all ages is appalling to those within and without our borders. The false equivalency of the claim that gun rights equal rights of freedom does not hold up in the face of the slaughter of children.
A European observer said it well: America´s obsession with equating the right to buy and possess a gun with a fundamental human right and freedom, while simultaneously justifying it as a constitutional right, does not harmonize with the European values, according to which the right to life is a human right and not the right to take someone else´s life.
Monday, July 18, 2016
The connection between domestic violence and mass public killings has not been overlooked. The New York Times published an article on the topic which opened the conversation. While the article could be read to say that the link is casual and not correlative, the connection is supported by FBI data that 57% of mass killings involved a current or former intimate partner or other family member.
Nashville saw a near elimination of domestic violence murders, when, under the leadership of Officer Mark Wynn, every domestic violence call was addressed through a SWAT team response. From the bottom up, our culture needs to shift its focus to take domestic violence as seriously Nashville did. But that is not our culture. For example, not every state requires the surrender of firearms when a restraining order enters against a defendant. Yet federal law makes it a crime for someone subject to a restraining order to be in possession of firearms. When federal gun laws go unenforced, the state is empowering violent men to do further harm. Violence prevention is not a valued path in the U.S.
The failure of civil society to aggressively and effectively address intimate partner violence does, not coincidentally, lead to broader societal violence. Failure to curb gender violence empowers those who are violent. Violent men often hate women, gays, those of different races and others who do not match their limited sex and identity characteristics. Confusion over what it means to be a "man" is a common thread for those who harm both women and those who are gender different. Think Orlando. Religion can be the disguise these men use to execute their hate. Think ISIS and its culture of sexual violence.
As a culture we do very little to intervene when we see concerning behaviors developing in our young men. Ending violence is directly related to how we raise our boys. Traumatized boys are at risk of becoming violent men. Traumatized men who are not given the medical, psycho-therapeutic and other supports they need become dangerous to themselves and many others. Think police killings. We need to rethink our notions of privacy when it comes to children. What is now considered intrusive will later be fundamental as preventative.
What if we organized the restorative and therapeutic equivalent of a SWAT team? Imagine how effective intervention might be if children were diverted from thoughts and conditions that lead to violence by a team of loving, skilled professionals and community members focused only on providing the specific needs of an at-risk child and the child's caregivers. This may sound Utopian, but until we alter our present system of crisis only intervention for children, we should expect violence to continue in more and more dangerous forms.
Tuesday, July 12, 2016
Gun control advocates were certain that the slaughter of 20 young children in Newtown, CT would lead to some agreement on gun control. They were wrong.
When gun control advocates speak, or when gun control legislation is introduced into congress, one constituency has been silent. The police have been largely unwilling to support gun limiting legislation, either publicly or privately. Following Newtown, President Obama met with chiefs of police as well as sheriffs, seeking their support for gun legislation reform. Support was not unanimous. Largely, the police chiefs supported President Obama's request for gun control, the sheriffs did not. Without having access to more data, we cannot determine if there are regional or other geographic factors dividing the two law enforcement groups. But even for those chiefs favoring gun limitations, public support is missing.
One sheriff wrote to Vice President Biden that he would not enforce any gun control legislation.
The police are the ones who in the first instance see the bodies of the dead and wounded following a mass slaughter. Now the vulnerability of the police as victims of mass killings was evidenced in Dallas. But will this change police silence on gun issues?
One police observer noted that talking about guns is like talking about race. "These are difficult conversations and people get very polarized on either side of it." Beyond being uncomfortable, it is likely that the two conversations are linked. One wonders if police resistance would be so widespread if President Reagan, who promoted gun control as governor, had been the one proposing gun control. The country is so politically divided, it is difficult to think of any politician who would appeal to conservatives and liberals on this issue.
But, the police could unite us. Police need to get beyond fear of disagreeing with fellow officers as well as beyond any cynicism that gun control will not work. Police lives are on the line as well as others. Their voice would make a difference. We won't know what works until we try.
Monday, July 4, 2016
Following up on Risa Kaufman's post on the human right to be free from gun violence, the Supreme Court on Monday declined to review two cases involving local bans on assault weapons. The declination left in tact bans on military style assault weapons enacted in New York and Connecticut. These are not the first bans the Court has declined to review. But given events of the last two weeks, the refusal to review carries greater significance.
Congress refused to take even minimal action to restrict access to weapons, including expanding background check obligations to gun shows and the internet. There appears to be no logic to the rejection of this bill, other than continuing the rigidity for which the NRA and their politicians are noted.
In refusing review, the Supreme Court re-acknowledged the right of localities to make reasonable regulations regarding weapons, a power begging review post-Heller. Second Amendment jurisprudence is being shaped not by federal action, but by inaction. Local and state laws will be how gun change happens.
While some see the Court's action as evading an opportunity to discuss the boundaries of individual gun rights, in deciding not to decide, the Supreme Court has brought some sensibility to the gun issue. The New York and Connecticut bans certainly are defeats for the NRA. But with a congress unwilling to take even the most rudimentary precautions, the Supreme Court is left to bring some sensibility to the US epidemic of gun killings. The NRA might want to examine the cost of inflexibility.
Meanwhile, last week Representative John Lewis returned to his civil-rights roots and organized a house sit-in, attempting to force voting on gun legislation.
Monday, June 20, 2016
Well before the June 12th attack in Orlando, human rights advocates labeled gun violence in the United States a human rights crisis, underscoring the urgent need for government action.
The Orlando mass shooting, which targeted the LGBTQ community, was the worst in U.S. history. Mass shootings have become devastatingly common, while communities throughout the United States suffer from gun violence on a daily basis. Every day, an average of 89 people in the United States die from gun related violence. That’s 32,000 people a year.
The impact on communities of color and on women is particularly acute. African-Americans are more than twice as likely to die from gun violence than whites. And, in instances of domestic violence, the presence of a firearm in a home increases the risk of homicide by 500%. Amnesty International USA’s recent human rights report on gun violence in Chicago and Illinois, and the Violence Policy Center’s report on intimate partner homicide starkly illustrate the crisis.
As Congress debates whether and how to curb easy access to deadly assault rifles and other firearms, human rights officials express dismay at the most recent tragedy, and stress the critical need for U.S. lawmakers to respond.
Last week, the UN High Commissioner for Human Rights issued a statement urging the United States to “live up to its obligations to protect its citizens” from gun violence. The statement follows the Office of the High Commissioner for Human Rights’ recent report to the UN Human Rights Council on human rights and the regulation of firearms. The report delineates ways in which gun violence threatens a sweeping range of rights, and emphasizes governments’ due diligence obligations to protect.
The Inter-American Commission on Human Rights likewise issued a statement condemning the Orlando shootings and urging reforms. In a previous thematic report, the IACHR examined government’s obligations to protect, including through the regulation of firearms.
Human rights experts have repeatedly sounded the alarm.
In visits to the United States earlier this year, two groups of UN experts stated concern over U.S. gun violence, and the government’s failure to curb it. The Working Group of experts on People of African Descent noted concern with the lack of gun control and “stand your ground” laws and the impact on African American communities in the United States. The Working Group on discrimination against women noted the “persistent fatal consequences for women” of the lack of gun control in the United States, in particular in cases of domestic violence.
The UN Human Rights Committee and the Committee on the Elimination of All Forms of Racial Discrimination both dedicated portions of their most recent reports on U.S. human rights compliance to the issue of gun violence. They noted concern with the high number of gun-related deaths and injuries in the United States, and the disparate impact on racial and ethnic minorities. Both committees view the government’s failure to curb gun violence as a violation of the right to life and the right to non-discrimination. And they urged the U.S. to take action to reduce gun violence, including through the expansion of background checks and other enhanced gun violence prevention measures.
Has outrage over gun violence in the U.S. finally reached a tipping point? Framing the epidemic as a human rights crisis demands U.S. lawmakers to respond, adding urgency to a drumbeat of calls for meaningful reform.
Thursday, December 10, 2015
Article 3 of The Universal Declaration of Human Rights addresses the right to personal security. At the moment, many Americans believe that our government is not sufficiently focused on making its residents secure, at least when it comes to the risk of gun violence.
This week the U.S. Supreme Court was the first branch to take effective steps toward addressing individual security. And those steps were noted in what the Court refused to do.
The U.S. Supreme Court refused to hear a case challenging a Chicago suburb’s ordinance banning the possession of assault weapons. According to a NY Times article, the ordinance specifically bans AR-15s and AK-47s. But the ordinance also generally bans possession of "assault weapons, defining them as semiautomatic guns that can accept large-capacity magazines and have features like a grip for the nontrigger hand. Large-capacity magazines are those that can accept more than 10 rounds." Since a federal assault weapons and high capacity magazines ban expired in 2004, the nation has been plagued by mass murders. The Highland Park ordinance was enacted in response to the Sandyhook slaughter and Highland Park's opposition to the court's granting cert was based on the danger posed by assault weapons to the general public, exemplified by notorious recent public mass killings. Relying on language in Heller that no right is unlimited, the Town argued that because only a certain category of weapons were banned under the ordinance, no violation of the second amendment existed.
Those challenging the ordinance relied upon the right to protect self and family members, as well as Heller's affirmation of the right of individuals to keep handguns in their homes, as encompassing the sort of automatic weapons prohibited in Highland Park. Two chilling statements are found in the questions posed in petitioners' brief requesting cert. The first is that the automatic weapons banned by Highland Park are among the most popular weapons in the United States and secondly, that the ammunition magazines in question make up over half of the nation's privately owned ammunition stock.
While the Petitioner argues that the ordinance bans responsible, law-abiding adults from possession of automatic weapons, the petitioners also define the problem. To date, the government has been unwilling to impose screening requirements sufficient to determine who is responsible and law-abiding. To do so adequately would require mental health screening and certainly take much longer than 3 days, a time limit beyond which Congress has been unwilling to extend for background checks.
Apparently the Supreme Court has recognized the dilemma. In denying cert the Court has also signaled that it is not willing to affirmatively wade into the gun controversy at a time of intense social debate. But in refusing to grant cert, the Court has weighed in.