Guns, Foreign Courts, and the Moral Consensus of the International Community

July 23, 2008

Guns, Foreign Courts, and the Moral Consensus of the International Community

In a landmark decision that will impact the future of gun regulation in the United States, late last month the Supreme Court struck down a handgun ban in Washington, D.C. In District of Columbia etal. v. Heller (No. 07–290) a slim 5-4 majority found the D.C. ban to violate the Second Amendment to the U.S. Constitution, which reads, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

Over the last few years observers of the Supreme Court have noticed a trend among some of the justices to cite the decisions of foreign courts as part of the relevant precedent in deciding the cases before them. In 2005, justices Scalia and Breyer engaged in a rare public conversation on this very topic, “Constitutional Relevance of Foreign Court Decisions.” In the recently-decided D.C. v. Heller neither of the two dissenting opinions, written by justices Stevens and Breyer respectively, make substantial reference to foreign court decisions. But the growing phenomena of reference to foreign judgments as precedents raises the question of what the justices might have found if they had consulted such materials.

This tendency to invoke foreign jurisprudence is becoming more troubling as it becomes clearer that the moral consensus that once united Western nations has almost entirely broken down. A few years ago a pastor I know, as part of his duties as a representative of the Christian Reformed Church in North America (CRC), took part in an inter-church dialogue with a member of the Gereformeerde Kerken in Nederland (GKN), a grouping of Reformed congregations in the Netherlands. The GKN sent what they considered to be a moderate pastor to participate in this conversation about moral issues. In the course of the discussion, the GKN moderate asserted that it was more evil to own a gun than to have an abortion.

At this, the CRC representative was only able to respond that their discussion was effectively over. The CRC’s official position on abortion is that the church “condemns the wanton or arbitrary destruction of any human being at any stage of its development from the point of conception to the point of death.” As any rhetorician knows, argument can only proceed where there is some basic level of agreement, and the ethical opinion expressed by the GKN pastor was so far removed from the sensibilities of the CRC that there was effectively no point of contact for continuing dialogue. The GKN has since joined a number of other Protestant denominations in the Netherlands, including other Lutheran and Reformed denominations, to form the Protestantse Kerk in Nederland (PKN).

While this is a relatively minor anecdote, it serves well to illustrate the conflicting moral values placed on issues of life by the mainstream culture in Europe and the United States. No doubt there are those on either side of the Atlantic who would take issue with the dominant cultural judgment, but the national and international legal documents underscore the real differences. Where the U.S. Constitution’s Bill of Rights singles out the right of the people to keep and bear arms, proposed European Union constitutional documents make no such mention. And as a recent Washington Times article relates, “many in Western Europe and Japan see U.S. gun ownership rates and gun violence as a clear mark of difference with other industrial countries.”

But the difference has not always been so stark. Indeed, the preamble to the UN Universal Declaration of Human Rights, written in 1948, recognized the possibility of “rebellion against tyranny and oppression” as “a last resort,” an option that ideally could be avoided by protections according to the rule of law.

On the question of abortion, part of what derailed adoption of the EU Constitution in 2004 was concern by nations like Poland and Ireland that the vague constitutional provisions about “dignity” and “integrity” of the human person would require the repeal of national anti-abortion laws. The Treaty of Lisbon, successor to the failed EU Constitution, was rejected by Ireland last month, in part over similar concerns by pro-life advocates that adoption of the treaty “would threaten the Irish constitutional protection for the unborn, given the almost universal acceptance and promotion of abortion at the EU level.”

Upon reflection, then, the ethical judgment expressed by the GKN pastor seems to represent fairly well the mainstream EU attitude toward moral issues like guns and abortion. If part of what characterizes a civilization is a consensus on moral issues, then the idea of a unified Western civilization encompassing Europe and the United States is an illusion. A consensus that diverges on such fundamental questions of the right to life and responsibilities of self-defense is simply no consensus at all.

Jordan J. Ballor is associate editor at the Acton Institute for the Study of Religion & Liberty in Grand Rapids, Mich., and a contributor to the Acton Institute PowerBlog.

Comments

Bud: ehensley@trip.net

We are a government of the people. We became such through force of arms. The British tried to capture the weapons and powder to prevent the rebellion that became the revolutionary war. Upon writing the bill of rights this was not forgotten and the 2nd amendment was written. The second amendment must really keep alot of leftist in this country awake at night knowing that if need be we can change this government. The left in this country would like nothing better than to completely disarm the citizens so they could blow off the constitution and nationalize our industries and bring us under a completely socialist state. They use platitudes such as the constitution being a living document which just means that to the left it is merely a piece of paper standing in their way which can be ignored or twisted by their judges to say anything they want. Without the 2nd amendment all the other rights in the Bill of Rights run the risk of becoming extinct by judicial expediency of the socialist in this country. I really wonder how our citizens in this country have become so complacent and ignorant. But then I just need to look at our educational system and turn on the television and look at the cultural wasteland that we have become.
I doubt that you would ever see it but we need a real resurgence of history(real history) and maybe a national constitutional week where we actually gather and read the document, with no leftist spin just read it and let the people hear it. People know what they hear with out some looney lefty mouthing off and telling them it means something completely 180 degrees out from what was just spoken.

Tracy Jue: juetm@juno.com

My perspective on this issue is that European Countries and US Policies are loosing sight of the importance to life regarding to abortion and even suicide. The US has strict guidelines in bare arms. US Citizens who purchase guns have to register there guns, that comes with a security background check and a registration fee. Some states such as CA has taxes and restrictions out of state/foreign citizens. I am not very knowledgable on the Foreign country gun regulations but I do know some European countries allow youths and young adults to die by euthanasia without consent of a parent or legal guardian. Similarly to Abortion, euthanasia is becoming a view that is taken lightly. Eventually these views will effect other countries to jump on the bandwagon or tolerate such a light view on life by promoting this view and eventually apply to our countries directly or indirectly.

Virginia Gentleman: beowulf_me@yahoo.com

Good morning from US - How is Europe responding to the increase in gun related violence coming from the criminal element who, by definition, pay no regard for the law? Seems to me the British are starting to wake up to this reality as knife violence is increasing along with the continued use of firearms by the criminal element.

Chris Manes: lokicsm@aol.com

Since the European model is far outpacing the American "cheap labor conservative" model of letting the superwealthy determine our politics, this article seems disjointed from reality

SittingMoose,Shaman: sittingmoose10.31_51shaman@yahoo.com

History is always the steadfast and reliable guide: Every Nation, for the most part, has throughout their several histories were(and some are still) under the heels
of warlords & dictators or lived in vassalage and kingdom. Their ancestors(and them) had never known of a life ,like America guarantees in Her Constitution, which we now enjoy.
Sadly such ancestral traits are almost always apparent in the criticisms of America in foriegn jurisdictions . They know no better...........
The Netherlands fell quickly beneath Hitlrers' Stosstruppen.
The Dutch Resistance bravely fought..... as armed citizens against the Tyrant.
How can these nations truely understand The United States ?
Our history is unique on the worlds' stage. The Forefathers were fed up with kings and their imperial families and governors with endless, intolerable dictates and
levies. A "New Order" was established. And in about fifty years or so America shall become a nation with the status of a Classical History. Though America may follow
an historical line in a semantic fashion, the difference of individual rights, cemented in a constitution,and the incomperable power of the one person-one vote is(except for the Iriquoise Federation) virtually unseen throughout the history of mankind ! Our History(and the "Wild West") are quite Our Own. And this precious Constitution
of OURS needs NO inflection of foreign opinionated concourse from the great unwashed . Donot forget America departed from the European way of doing things............
Also saved their 'collective' keesters twice, from "lend lease" to American Soldiers' lives and blood. This might not mean much to those 'leaders' whom desire the
obeisance of their populations, "........as in the good ol' days, eh,lads ? When kings and queens and princes and dukes and barons and lords and 'sheriffs'-of-
nottinghams' ruled the roost....... and so at present, gives evidence of deep philosophical parallells to, observing closely, the cryptic political zeitgeist of the general EU and companies, ministers' intents portend ..... However it suerly means much to this FREEMAN !!!
World-wide Pogroms, anyone !?!
Till then, SittingMoose,Shaman.

Fr Paul Grant: frpaulgrant@gmail.com

Hi!
It is possible both, in the Europe and the US, as a good citizen, to be against the right to abortion and against the right carry in guns in the "loose" way that it is allowed in the US! Your article is not really accurate! I think it is useless comparison. Beside in the US you have a right to abortion and a right to carry guns!
Trying focusing on the US and forget the Europe!
regards

ekene adumah: kentele34@yahoo.com

my own little perception about this outstanding comment is the issue of UNCOMMON moral value and orientation of the multi racial, group, state, countries that makeup the population of the whole mankind as regards to life challanges am afraid that in most cases people make a wrong moral choice inorder to suit their selfish, sinful life inoder to satisfy the fresh with less regards to the teachings of the bible. i challange all minkind to know that most and infact all these social desaster that has subequent occurance in almost all parts of the world both now and before are the prevailing punishments over sinful ways of mankind only if all should come back to reson just as CHRIST had designed for us all that the world will become a better place with common ideas and understanding.

Daniel:

It seems easy to interpret the second amendment. The issue of militia is not the issue at all. The question whether it is a right of the people or a right of the state to have a militia is right there in plain English. It says "the right of the people". It says nothing about the rights of the state. Nuff said

Acton Commentary