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Gun Violence and Human Rights

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Gun Violence and Human Rights Washington University Journal of Law & Policy Volume 60 Gun Violence as a Human Rights Violation 2019 Gun Violence and Human Rights Leila Nadya Sadat James Carr Professor of International Criminal Law and Director, Whitney R. Harris World Law Institute, Washington University School of Law, St. Louis; Special Adviser on Crimes Against Humanity to the International Criminal Court Prosecutor Madaline M. George Whitney R. Harris World Law Institute Fellow and a 2014 graduate of Washington University School of Law in St. Louis Follow this and additional works at: https://openscholarship.wustl.edu/law_journal_law_policy Part of the Human Rights Law Commons, International Humanitarian Law Commons, and the International Law Commons Recommended Citation Leila Nadya Sadat and Madaline M. George, Gun Violence and Human Rights, 60 WASH. U. J. L. & POL’Y 001 (2019), https://openscholarship.wustl.edu/law_journal_law_policy/vol60/iss1/7 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Journal of Law & Policy by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. Gun Violence and Human Rights * Leila Nadya Sadat & Madaline M. George INTRODUCTION .............................................................................................................. 2 I. GUN VIOLENCE IN THE UNITED STATES IS WORSE THAN YOU THINK ......... 7 II. THE UNITED STATES REGULATORY FRAMEWORK ......................................... 17 A. Federal Legislation on Firearms ........................................................................... 17 B. The Second Amendment and Gun Control ........................................................... 25 C. State and Municipal Legislation on Firearms ....................................................... 28 III. GUN CONTROL LAWS CAN PREVENT GUN VIOLENCE .................................. 31 IV. INTERNATIONAL HUMAN RIGHTS OBLIGATIONS OF THE UNITED STATES 36 A. The Legal Framework: Americans Have Human Rights Too .............................. 36 B. The Affirmative Obligation to Prevent and Protect .............................................. 42 C. Violations by Private Actors Engage the Responsibility of the State ................... 46 V. HUMAN RIGHTS IMPACTED BY GUN VIOLENCE .............................................. 50 A. The Right to Life ................................................................................................... 50 B. The Right to Security of Person ............................................................................ 55 C. The Right to Health ............................................................................................... 57 D. The Right to be Free from Ill-Treatment .............................................................. 59 E. The Right to be Free from Racial Discrimination ................................................. 62 F. The Right to Gender Equality ................................................................................ 64 G. Freedom of Religion, Expression, Opinion, and Belief ........................................ 66 H. The Right to Peaceful Assembly and Association ................................................ 70 I. Special Protection for Children and the Right to Education .................................. 71 J. The Right to Participate in the Cultural Life of the Community ............................ 74 VI. INTERNATIONAL AND DOMESTIC REMEDIES FOR HUMAN RIGHTS WRONGS ............................................................................................................... 76 A. International Reaction to the U.S. Gun Violence Crisis ....................................... 76 B. Implementing Human Rights Norms in the United States .................................... 82 CONCLUSION ................................................................................................................. 86 * Leila Nadya Sadat is the James Carr Professor of International Criminal Law and Director, Whitney R. Harris World Law Institute, Washington University School of Law, St. Louis; Special Adviser on Crimes Against Humanity to the International Criminal Court Prosecutor. Madaline M. George is the Whitney R. Harris World Law Institute Fellow and a 2014 graduate of Washington University School of Law in St. Louis. The authors would like to thank Washington University’s Institute for Public Health and the participants in the conference The U.S. Gun Violence Crisis: An Interdisciplinary & Human Rights Approach for their helpful comments on this draft, as well as the Human Rights Committee of the International Law Association (American Branch). We also thank Adeola Adekunle, Sebastian Ciobotaru, Megan Ferguson, Hewen Jiang, Jiyeon Kim, Rebecca Matey, Nicole Smith, and Marie Stephens for helpful research. 1 Washington University Open Scholarship SADAT/GEORGE ARTICLE 10/1/19 2 Journal of Law & Policy [Vol. 60:01 . Second Amendment rights are important, but there are other rights that we care about as well. And we have to be able to balance them. Because our right to worship freely and safely –- that right was denied to Christians in Charleston, South Carolina. And that was denied Jews in Kansas City. And that was denied Muslims in Chapel Hill, and Sikhs in Oak Creek. They had rights, too. Our right to peaceful assembly -– that right was robbed from moviegoers in Aurora and Lafayette. Our unalienable right to life, and liberty, and the pursuit of happiness -– those rights were stripped from college students in Blacksburg and Santa Barbara, and from high schoolers at Columbine, and from first-graders in Newtown. First-graders. And from every family who never imagined that their loved one would be taken from our lives by a bullet from a gun. -President Barack Obama (2016)1 INTRODUCTION The media is flooded with stories of gun violence. Mass shootings occur daily, suicide by firearms is a public health crisis, and the Center for Disease Control (CDC) reported that 173,500 people were shot in 2017, over 39,700 of whom died. That is an average of nearly 109 killed and another 366 who suffered nonfatal injuries from guns every day. The United States has more firearm deaths than other high-income countries and Americans own nearly 46% of all civilian-owned guns in the world, even though comprising only 4.3% of the world’s population. In fact, it is estimated that there are more firearms than people in the United States, and firearms and ammunition are becoming more dangerous and powerful 2 than ever before. To put it in context, in 2017 in the United States, 1,750 1. Barack Obama, President Obama Delivers Remarks on Reducing Gun Violence, YOUTUBE (Jan. 5, 2016), www.youtube.com/watch?v=myfByN5p928. 2. Much of the research upon which this Article is based can be found in our earlier report. Leila Nadya Sadat & Madaline M. George, The U.S. Gun Violence Crisis: Human Rights Perspectives and Remedies, WASH. U. IN ST. LOUIS LEGAL STUDIES RESEARCH PAPER NO. 19-01-11 (Jan. 18, 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3317143. https://openscholarship.wustl.edu/law_journal_law_policy/vol60/iss1/7 SADAT/GEORGE ARTICLE 10/1/19 2019] Gun Violence Is a Human Rights Violation 3 people died from forces of nature,3 fewer than 100 died from terrorism,4 and 39,700 were killed by guns. More Americans have died from gunshots in the last fifty years than in all of the wars in American history.5 Yet guns, including particularly deadly weapons like the AR-15, the weapon used in the Parkland, Sandy Hook, Aurora, Pulse Nightclub, Las Vegas, Sutherland Springs, San Bernardino, and Tree of Life Synagogue shootings, remain easy to acquire, stockpile, and carry. The U.S. government is fully capable of managing crises of this magnitude. Compare, for example, its response to high rates of death and injury from motor vehicles in the 1950s. The federal government adopted mandatory safety measures, imposed penalties for rules violations, and funded research studies. In contrast, few regulations or studies have focused on firearms. Perhaps unsurprisingly, mortality rates from firearm violence have increased since the 1950s, while those from motor vehicle accidents have declined 59%.6 Indeed, when it comes to guns and gun violence, the government – and the media – claim to be powerless. One reason is that news coverage and the national dialogue around gun violence often focuses on gun rights and 3. CTRS. FOR DISEASE CONTROL & PREVENTION (CDC), WEB-BASED INQUIRY STATISTICS QUERY AND REPORTING SYSTEM (WISQARS) [hereinafter CDC WISQARS], https://webappa.cdc.gov/sasweb/ncipc/nfirates.html, Natural/environmental deaths, 2017. 4. See UNIVERSITY OF MARYLAND, GLOBAL TERRORISM DATABASE, GLOBAL TERRORISM IN 2017 (July 2018), www.start.umd.edu/pubs/START_GTD_Overview2017_July2018.pdf (determining that 91 people died from terrorism in the United States in 2017, including the 58 people killed in the Las Vegas mass shooting). This database defines terrorism using a number of criteria that exclude many hate crimes, acts of white supremacy, or other acts that should arguably be considered domestic terrorism. Nonetheless, it is a good indicator of the actual threat in the United States of what is traditionally considered terrorism. Cf. UNIVERSITY OF MARYLAND, GLOBAL TERRORISM DATABASE, CODEBOOK: INCLUSION AND VARIABLES 10 (July 2018), www.start.umd.edu/gtd/downloads/Codebook.pdf.
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