Gun Control Activists Claim Second Amendment Violates Human Rights

The parents of a student killed in the shootings at Marjory Stoneman Douglas High School in Parkland, Florida have teamed up with Brady’s former chief litigator to file a “first-of-its-kind” complaint with the Inter-American Commission on Human Rights, alleging that “US gun policy violates basic human rights law” and deprived the Joaquin Oliver of his right to life.

Jonathan Lowy, who left Brady to start the group Global Action on Gun Violence, is spearheading the lawsuit with help from the head of George Washington University Law School’s Civil and Human Rights Clinic, and unlike most litigation involving Second Amendment issues, this one was launched with a slickly-produced ad campaign crafted by Zulu Alpha Kilo.

Lowy, you might recall, is also heading up the Mexican government’s lawsuit against most major U.S. gun manufacturers. While a U.S. District Court judge tossed out the case, the First Circuit Court of Appeals heard arguments over the summer about whether or not to reinstate the suit.

In this case, Lowy and plaintiffs Manuel and Patricia Oliver, who founded the anti-gun group Change the Ref after their son was murdered, aren’t asking a U.S. court to rule that the Second Amendment is a violation of human rights. Instead, they’re taking their argument to an international body that has no real jurisdiction over the United States.

The fact that this lawsuit was launched with its own public relations campaign is telling, because the whole thing looks to be one big PR stunt. The complaint itself is a laundry list of strident anti-gun talking points, including the oft-repeated claim that there is no real right to keep and bear arms protected by the Second Amendment.

The Second Amendment to the U.S. Constitution was understood for over two centuries to only concern the “well-regulated militia” which the Framers intended to protect and therefore mentioned in the text, not private gun ownership. But in 2008 the Supreme Court of the United States created a new right to handguns for self-defense which was not mentioned by the Second Amendment’s Framers or in the text, and then the Court vastly expanded that right in 2022, requiring historical precedent for gun laws and making public safety considerations of little relevance in determining the constitutionality of gun laws. These rulings have led courts to strike down numerous gun laws, and may constrain future regulations. The United States appears to be the only nation in the world that has chosen to put gun industry profits over public safety and gun rights over human rights.

See what I mean?

The historical evidence for an individual right to keep and bear arms is overwhelming, as the Heller opinion and a cursory knowledge of U.S. history makes clear. Lowy’s contention that the U.S. has put “gun rights over human rights” may make for a good bumper sticker slogan for gun prohibitionists, it’s another patently absurd claim. Guns don’t have rights (and honestly, I’ve never been a big fan of that phrase for that reason) but people absolutely do, including the human right of self-defense, as my colleague Tom Knighton discussed yesterday. It’s become a standard talking point on the Left that a lack of gun control is a violation of human rights, but strangely these same folks never want to talk about the slaughter of civilians in nations that have very restrictive gun control regimes, or the 20th century death toll in totalitarian nations that disarmed its citizenry.

The petition claims there are several supposed “major flaws in U.S. gun law”, including (but certainly not limited to) a lack of an”assault weapons” ban, no “investigation or vetting of purchasers” beyond background checks; no “universal” background checks for sales by private citizens; no federal “licensing, registration or vetting for firearm purchases”, “no limits whatsoever on how many guns a civilian may purchase, either in one transaction or in any period of time”, and the protections from civil liability found in the Protection of Lawful Commerce in Arms Act.

Florida’s gun laws are also cited in the complaint, with the plaintiffs accusing the legislature of “failing” to adopt restrictions like:

  • Require gun purchasers and owners to obtain a license
  • Require background checks for all gun purchases
  • Require additional vetting of prospective gun purchasers beyond instant background checks
  • Require record-keeping of private owned firearms and their owners
  • Require any person who carries a concealed firearm in public to first obtain a permit from law enforcement based on a valid need to carry
  • Mandate design safety standards on firearms
  • Prohibit or further regulate the sale and possession of assault weapons
  • Prohibit or regulate large capacity ammunition magazines
  • Prohibit gun purchases by people with assault or other violent misdemeanor convictions
  • Prohibit staff or other permit holders from carrying guns in K-12 schools
  • Require safe sales and marketing practices by the gun industry
  • Restrict the sales or purchases of multiple firearms

So what actually happens if the Inter-American Commission on Human Rights actually finds in favor of the Olivers? Not much, at least from a legal perspective. Slate author Mary Hansel called for abortion rights activists to basically adopt this same strategy after the Supreme Court issued its decision in Dobbs last year, but she was at least willing to acknowledge that any positive outcome would be more of a public relations victory than anything else.

 By centering the human rights of those marginalized by the Supreme Court, counsel for the pro-choice litigants can effectively appeal the Dobbs decision: Counsel can file a petition with the Inter-American Commission on Human Rights, the multilateral body tasked with promoting human rights across the Americas. Even if the U.S. does not ultimately implement the commission’s ruling, bringing the case to this body could prove to be a potent strategy in the fight for reproductive justice.
The commission is more than 60 years old and based in Washington D.C., although domestic awareness of its existence and functions is minimal (by contrast, the commission is a household name in many Latin American countries). One of the body’s main functions is to adjudicate cases brought against member countries that have violated human rights standards. In general, a case is only admissible once the violating country’s highest court has rendered a decision; indeed, the commission is designed to be a forum of last resort.
If counsel files a petition, assuming it meets all of the technical requirements, the commission will review the Supreme Court’s decision, as well as the actions (and non-actions) of other government organs. The U.S. will submit multiple rounds of briefing trying to defend the country’s rollback of abortion care. The commission will then issue its own decision, explaining the pertinent human rights dimensions and likely ordering an array of remedial measures.
Although the U.S. regularly participates in commission proceedings, administrations of every political stripe have posited that the country is not bound by the body’s rulings. In all probability, the government will not treat the commission’s decision as legal authority, and there is no enforcement mechanism to compel implementation.

The same is true of the Oliver’s complaint, but to call this nothing more than a PR stunt would be inaccurate. It’s also a reminder that the gun control movement isn’t about “common sense” or “reasonable” measures. It’s about eradicating We the People’s right to keep and bear arms; a right that they insist doesn’t exist in the first place but would be a human rights violation if it did. In their world, you don’t have a right to own a gun, but you do have the right to demand responsible citizens be disarmed.

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