The latest mass shooting incident in the US has once again forced the topic of US gun control onto the headlines.
What is well known is that the root of the problem lies with the American Constitution which famously contains the guaranteed right of all US citizens “to bear arms”. A “Constitution” operates as a supreme law which, once created, can never be altered without a majority vote, not from parliament (or congress in the US case), but from the people themselves. Both Australian and US historians would agree that voting in this way (known as referendums) is very expensive and quarrelsome and that attaining a majority consensus even on seemingly uncontroversial issues has always been very difficult. As a consequence, many might naturally think the US problem can never be solved.
However, in truth, the US legal system, working in partnership with Congress actually already has the ability to make all (or at least most) of the necessary gun control laws, arguably, without the need for a referendum at all. In constitutional law there are two very old and well entrenched legal principles. The first is that any “freedom” contained in any law, always carries implied limits. The concept is explained by this old quote … “your liberty to swing your fists ends where my nose begins”. The second principle is that as constitutions are created to endure across time, they must be interpreted and applied, not as inflexible and rigid rules but rather like a living document which can, and indeed must, grow and shape with the country as it evolves and changes.
Consequently, as a result of these two legal principles, the US Congress actually already has the power to introduce laws which are aimed at preventing people from building arsenals of high powered, automatic or semi-automatic reloading weapons upon the very simple basis that the constitutional right to bear arms cannot be interpreted to mean that any one American has the right to possess weapons which are clearly specialised towards killing multiple people in rapid succession. Hand guns might be a different issue but as once said, a journey of a thousand miles must begin with the first step.
Michael Zande is the Principal of Zande Law Solicitors, with over 25 years’ experience in practice. Zande Law Solicitors is located at Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Michael for advice, phone 3385 0999.
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.