UN's New Attack on Law-Abiding American Gun Owners

David Kopel

Volokh.com, Sept. 13, 2006. More by Kopel on U.N. gun control.

Advanced Topics in Human Rights Law. Exam, Spring 2010. Question 4: One day, a woman goes to a gun store in Florida. She provides picture identification to the store owner, who then, pursuant to the National Instant Check System, uses his telephone to contact law enforcement, and ensure that the woman has no criminal record. The woman then purchases an expensive double-barreled shotgun, manufactured in the United Kingdom. She plans to use the gun for all lawful purposes, but primarily for sporting clays. In accordance with Florida law, she did not need to obtain a government license to possess the gun.

Two years later, a man breaks into her home at night. The woman reasonably (and correctly) believes that the man intends to rape and torture her. She also, correctly, believes that there is absolutely no possibility that the man will kill her. She shoots the man and kills him.

Summarize the human rights violations


1. The United Kingdom violated human rights by allowing the export of small arms to the United States for retail sale, under conditions which the U.K. knew (or through due diligence should have known) made it likely that the arms would be used to violate human rights. The Arms Trade Treaty was proposed in the fall of 2006 in the United Nations General Assembly by Australia, Argentina, Costa Rica, Finland, Japan, Kenya and the United Kingdom. Those nations, and many others, later ratified the treaty. The treaty makes it illegal to export small arms to a nation when it is likely that the arms will be used to violate human rights.

Almost all of the public discussion of the ATT focused on violations of "traditional" human rights -- such as selling arms to the Burmese police, some which would be used to murder peaceful dissidents. However, the text of the ATT applies to all human rights violations, include newer human rights. The U.K. knew or should have known that its export of arms to the civilian market in the U.S. would lead to the human rights violations detailed below.

2. The United States and the State of Florida violated human rights by allowing the woman to possess a firearm without a license. The July 27, 2006, Final Report of the United Nations Special Rapporteur on the use of small arms in human rights violation stated:

16. Minimum effective measures that States should adopt to prevent small arms violence, then, must go beyond mere criminalization of acts of armed violence. Under the principle of due diligence, it is reasonable for international human rights bodies to require States to enforce a minimum licensing requirement designed to keep small arms and light weapons out of the hands of persons who are likely to misuse them....The criteria for licensing may vary from State to State, but most licensing procedures consider the following: (a) minimum age of applicant; (b) past criminal record including any history of interfamilial violence; (c) proof of a legitimate purpose for obtaining a weapon; and (d) mental fitness. Other proposed criteria include knowledge of laws related to small arms, proof of training on the proper use of a firearm and proof of proper storage. Licences should be renewed regularly to prevent transfer to unauthorized persons. These licensing criteria are not insurmountable barriers to legitimate civilian possession. There is broad international consensus around the principle that the laws and procedures governing the possession of small arms by civilians should remain the fundamental prerogative of individual States. While regulation of civilian possession of firearms remains a contested issue in public debate - due in large part to the efforts of firearms manufacturers and the United States of America-based pro-gun organizations - there is in fact almost universal consensus on the need for reasonable minimum standards for national legislation to license civilian possession in order to promote public safety and protect human rights. This consensus is a factor to be considered by human rights mechanisms in weighing the affirmative responsibilities of States to prevent core human rights violations in cases involving private sector gun violence.
Neither Florida nor the United States require a license to possess a gun. Nor did either government require any "proof" that the woman had "a legitimate purpose for obtaining a weapon." Notably, even if the woman had lived in an American state or city with more restrictive laws, there still would have been a human rights violation. Only a minority of jurisdictions have licensing system, and of those, many require a license only for hand guns (not long guns), and require a license only for purchase -- rather than a license for continuing possession, which must be periodically renewed. Notably, even the most restrictive jurisdictions (e.g., New York City for handguns) do not require a purchaser to prove that she has a legitimate purpose. Hence, any export of firearms for civilian sale to the U.S. is per se human rights violation.

On August 21, 2006, the UN Human Right Council's Subcommission on the Promotion and Protection of Human Rights endorsed the Frey Report in toto, and recommended that the full Human Rights Council do so. The HRC later did so.

Although the Arms Trade Treaty has been signed by President Clinton, it has never been brought to the Senate floor for ratification. However, the ATT, as well as the decisions of the HRC, are relevant guides to the interpretation of U.S. and Florida constitutional provisions, including those which forbid the deprivation of life without due process. The principle that unratified treaties (such as the Convention for the Elimination of All Forms of Discrimination Against Women), or treaties to which the United States could not even be a party (such the African Charter on the Rights and Welfare of the Child) may be used in interpreting the human rights provisions of the U.S. Constitution is well-established by Supreme Court precedent. Significantly, the ATT and the HRC standards on gun control have been endorsed by several international bodies, as well as international organizations concerned with human rights, including Amnesty International, the World Council of Churches, and the International Action Network on Small Arms.

3. Finally, the woman's use of gun violence against the man was also a human rights violation. This gun violence was also accountable as a human rights violation by the State of Florida. According to the Frey Standards adopted by the UN Human Rights Council, self-defense is not a human right. Rather, "When small arms and light weapons are used for self-defence, for instance, unless the action was necessary to save a life or lives and the use of force with small arms is proportionate to the threat of force, self-defence will not alleviate responsibility for violating another's right to life." (Para. 26). Moreover, "Because of the lethal nature of these weapons and the jus cogens human rights obligations imposed upon all States and individuals to respect the right to life, small arms and light weapons may be used defensively only in the most extreme circumstances, expressly, where the right to life is already threatened or unjustifiably impinged." Under international law, a jus cogens standard supersedes any contrary rule. The constitutions of the United States and of Florida, as well as numerous human rights treaties ratified by the United States, recognize the government's obligation not to take life unjustifiably. As the Frey Report details, a government's failure to enact sufficiently stringent gun control laws (discussed in item 2, above) and to enact sufficiently stringent restrictions on self-defense constitute a governmental failure to exercise due diligence, and consequently a violation of the right to life.

The laws of all American states allow the use of deadly force against certain violent felonies (include rape, torture, and mayhem) when the person being attacked reasonably believes that no lesser force will suffice. The use of deadly force against an attack which is not life-threatening is plainly disproportionate, and a violation of the HRC standards.

Florida--like many other American states--compounds its human rights violation by not requiring that the defender use less-than-deadly-force if lesser force would sufficient to stop the violent felony.

Extra credit: Although the law regarding private suits for human rights violations is still evolving, the estate or relatives of the man who was the gun violence victim might have a cause of action in a U.K. or European Court to sue the firearms manufacturer, and also to sue the United Kingdom itself. Further, the estate/relatives of the gun violence victim could sue the State of Florida, and the United States, for violating his right to life. The suit would be based on section 1983 of the Civil Rights Act, which encompasses private lawsuits for the deprivation of federal civil rights, including the right not to be deprived of life without due process. The American court, following the lead of the U.S. Supreme Court, could use international law standards, such as the HRC standards, in determining the scope of a government's duty regarding the right to life.

The federal Protection of Lawful Commerce in Firearms Act, and its Florida analogue, prohibit a lawsuit against the manufacturer, wholesaler, and retailer of the shotgun. Florida law prohibits a lawsuit against the gun violence perpetrator, because the perpetrator was acting within the scope of Florida self-defense law when she shot the victim. However, the estate/relatives could argue the all the statutes mentioned in this paragraph are unconstitutional, because the are contrary to the right to life guaranteed by the federal due process clause, as informed by the evolving standards of international human rights, as defined by the UN Human Rights Commission.

As the Frey/HRC observed, the "regulation of civilian possession of firearms remains a contested issue in public debate - due in large part to the efforts of firearms manufacturers and the United States of America-based pro-gun organizations." If the victim's human rights lawsuit were brought before a judge who was sympathetic to such manufacturers or organizations, it is unlikely that the suit would succeed. However, there are many judges who do not have such sympathies. Thanks to the flexibility of international law, and the evolving practice in U.S. constitutional interpretation of using international law guidelines, it would be possible for the lawsuits to result not only in monetary damages, but also in injunctive relief, and the judicial negation of the state and federal laws on self-defense and gun control which violate international human rights.


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