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Comparative Law University of Wyoming College of Law Law Archive of Wyoming Scholarship Faculty Book Chapters Faculty Scholarship 5-5-2020 Comparative Law George A. Mocsary University of Wyoming - College of Law, [email protected] Nicholas James Johnson Fordham University - School of Law, [email protected] E. Gregory Wallace Campbell University - Norman Adrian Wiggins School of Law, [email protected] David B. Kopel Government of the United States of America - Independence Institute, [email protected] Follow this and additional works at: https://scholarship.law.uwyo.edu/book_chapters Recommended Citation Mocsary, George A.; Johnson, Nicholas James; Wallace, E. Gregory; and Kopel, David B., "Comparative Law" (2020). Faculty Book Chapters. 7. https://scholarship.law.uwyo.edu/book_chapters/7 This Book Chapter is brought to you for free and open access by the Faculty Scholarship at Law Archive of Wyoming Scholarship. It has been accepted for inclusion in Faculty Book Chapters by an authorized administrator of Law Archive of Wyoming Scholarship. 14 1 2 3 Comparative Law 4 5 6 7 8 9 10 11 12 13 14 15 16 This is online Chapter 14 of the second edition of the law school textbook Firearms Law 17 and the Second Amendment: Regulation, Rights, and Policy (2d ed. 2017). The 18 printed book, by Nicholas J. Johnson, David B. Kopel, George A. Mocsary, and Michael P. 19 O’Shea, consists of Chapters 1 through 11. More information and additional materials 20 are available at https://www.wklegaledu.com/johnson-firearms-law-2. The printed book 21 may also be purchased from Amazon.com and Barnes & Noble (bn.com). The companion 22 website for the book is firearmsregulation.org. 23 The online chapters, by Nicholas J. Johnson, David B. Kopel, George A. Mocsary, 24 and E. Gregory Wallace, are available at no charge from either https://www.wklegaledu. 25 com/johnson-firearms-law-2 or from the book’s separate website, firearmsreglation.org. 26 They are: 27 28 12. Firearms Policy and Status. Including race, gender, age, disability, and sexual 29 orientation. 30 13. International Law. Global and regional treaties, self-defense in classical inter- 31 national law, modern human rights issues. 32 14. Comparative Law. National constitutions, comparative studies of arms issues, 33 case studies of individual nations. (This chapter.) 34 15. In-Depth Explanation of Firearms and Ammunition. The different types of fire- 35 arms and ammunition. How they work. Intended to be helpful for readers who 36 have little or no prior experience, and to provide a brief overview of more com- 37 plicated topics. 38 16. Antecedents of the Second Amendment. Self-defense and arms in global histori- 39 cal context. Confucianism, Taoism, Greece, Rome, Judaism, Christianity, Euro- 40 pean political philosophy. 41 42 Note to teachers: Chapter 14, like all of the online chapters (and like the printed 43 Chapters 1 through 11), is copyrighted. You may reproduce this online Chapter 14 without 44 charge for a class, and you may have it printed for students without charge. We ask that 45 you notify the authors of such use via one of the email addresses provided on the public 46 website for this textbook. Of course, you may choose to use only selected pages, and you 47 may supplement this chapter with materials you choose. However, this chapter may not be 48 electronically altered or modified in any way. 49 179 Electronic copy available at: https://ssrn.com/abstract=3590801 WK_FRRP_2020_Ch14.indd 179 Manila Typesetting Company 07/16/2020 11:33AM 180 14. Comparative Law 1 Online Chapter 13 covers International Law—that is, law, such as trea- 2 ties, that applies among nations. This Chapter studies Comparative Law— 3 comparing and contrasting the “domestic” (noninternational) gun laws of vari- 4 ous nations and examining the possible effects of those different laws. Because 5 international law is derived in part from the “norms” of civilized nations, the 6 study of comparative law can yield useful insights for international law.1 7 Part A covers national constitutions and reviews the following topics: (1) 8 the three nations besides the United States that have an express constitutional 9 right to arms; (2) constitutional guarantees of self-defense; (3) constitutional 10 affirmations of the right and duty to resist tyranny or illegitimate government; 11 (4) constitutional support for national liberation movements in other nations; 12 (5) a short case study of Ghana and its constitutional duty of forcible resistance 13 to usurpation of goverment; and (6) the constitutional right to security in the 14 home. 15 Part B excerpts studies examining the consequences of varying rates of 16 gun ownership among a large number of countries. One purpose of Part B is 17 for students to develop skills in evaluating statistical studies. Accordingly, Part B 18 begins with an explanation of some basic statistical methods and terminology. 19 The first excerpted article, by Don Kates and Gary Mauser, observes similarities 20 and difference of the United States and Europe. 21 The next Section introduces complex statistical analysis. It begins with a 22 summary of statistical research methods and vocabulary. Next is an article by 23 Professor Gary Kleck examining the strengths and weaknesses of various stud- 24 ies on the relationship between gun ownership levels and homicide levels. 25 Although Kleck analyzes data within the United States, his methodological cau- 26 tions provide a foundation for evaluating the international studies that follow. 27 As Professor Kleck explains, one of the most daunting problems is accurately 28 estimating levels of gun ownership, especially over time. 29 The third Section of Part B presents an especially sophisticated article, 30 by John N. van Kesteren, that examines 26 countries, mostly European plus 31 the United States, to look for relationship between gun ownership levels and 32 violence. 33 The last Section of Part B directs attention to the importance of culture in 34 comparative scholarship. An article by Irshad Altheimer and Matthew Boswell 35 reports the diverse effects of higher rates of gun ownership in Western devel- 36 oped nations, Eastern Europe, and Latin America. A second article, by David 37 Kopel, Carlisle Moody, and Howard Nemerov, investigates the relationship 38 between gun density and various measures of economic freedom, economic 39 prosperity, political freedom, civil freedom, and noncorruption in 78 nations. 40 Finally, in Section B.5, Nicholas Johnson describes “the remainder prob- 41 lem”: if social science did prove that greater gun density causes the United 42 States to have higher rates of homicide and other gun crime than some other 43 countries, what can be done meaningfully to reduce U.S. gun density? 44 45 46 47 1. The authors thank Vincent Harinam (M.A. Criminology, Univ. Toronto 2017) for 48 contributing to the second edition of this chapter. 49 Electronic copy available at: https://ssrn.com/abstract=3590801 WK_FRRP_2020_Ch14.indd 180 Manila Typesetting Company 07/16/2020 11:33AM A. National Constitutions 181 Part C presents case studies of gun control and gun rights in several nations. 1 It begins with the United Kingdom, starting in the early twentieth century. (For 2 earlier U.K. history, see Chapter 2.) For contrast, the next nation is Switzerland, 3 with its thriving militia system. 4 The Western Hemisphere comes next, with Canada, Mexico, and Venezu- 5 ela. Asia and the Pacific are covered in sections on Australia, Japan, China, and 6 Thailand. Kenya and South Africa are the case studies for Africa. Some Notes 7 & Questions following sections on particular countries present material about 8 other nearby countries. 9 Part D considers broad perspectives in the three different ways. First, an 10 article by Professor Carlisle Moody investigates European homicide trends over 11 the last 800 years, and observes that growing availability of firearms that could 12 be kept always ready for self-defense (wheel locks and flintlocks) paralleled a 13 sharp decline in homicides. 14 An essay by Professor Kopel compares and contrasts homicides in the 15 United States and Europe during the twentieth century. Europe’s homicide 16 rate is vastly higher—once one takes into account murder by government. 17 If one makes certain assumptions designed to produce the highest possible 18 figure, the United States had up to 745,000 additional gun homicides in the 19 twentieth century because the United States did not have gun control laws 20 as restrictive as those in Europe. Conversely, Europe had about 87.1 million 21 additional homicides by government because Europeans did not have a right 22 to arms. The essay describes the gun control policies of dictators in Europe 23 and elsewhere. It concludes with a pair of case studies showing the accomplish- 24 ments of armed resistance to genocide: by Armenians and other Christians in 25 the Ottoman Empire during World War I, and by Jews in Europe during World 26 War II. 27 The third section of Part D investigates at length the largest mass homicide 28 in history: the murders of over 86 million Chinese by the Mao Zedong dictator- 29 ship in 1949-76. —The essays also details armed resistance to Mao, and includes 30 a detailed description of Tibetan uprisings. While Mao adopted diverse arms 31 control policies at different times, the objective was always the same: his politi- 32 cal supporters would be armed and his opponents would not. 33 The excerpted article, John N. van Kesteren, Revisiting the Gun Ownership 34 and Violence Link: A Multilevel Analysis of Victimization Survey Data, British Journal 35 of Criminology, vol. 54, pages 53-72 (2014), is republished by permission of 36 Oxford University Press. 37 38 39 40 41 A.
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