4
The Purpose and Principles of Firearms Legislation and
"The Firearms Debate"
4.1 The Purpose of Firearms Legislation
The purpose underlying all firearms legislation is the need, in the public interest, to reduce damage from the misuse of firearms.
An ideal firearms regime would prevent misuse without interfering with legitimate use. But in practice some interference with legitimate use may be unavoidable if one is to meet the public interest in limiting misuse. It follows that the only realistic policy is to seek the maximum reduction of the risk of misuse with the minimum restriction of legitimate use. That approach necessarily involves balancing public and private interests.
There are sound reasons for the widely held view that firearms control systems must relate to the needs and circumstances of the society to which they are to apply. What works in one country may not work in another.
The same reasons require that attention be given to changes in gun usage and other relevant circumstances within a particular society over the passage of time. What was appropriate in 1939 may not be so in 1999. Determining the appropriate balance is accordingly not a single finite step, but calls for periodic re-assessment.
4.2 Conventional Methods of Control, and Their Inter-Relationship
In Western countries conventional strategies for effecting gun control fall under four broad categories:
Ÿ banning high-risk firearms;
Ÿ reducing the availability of firearms to high-risk users;
Ÿ banning or restricting high-risk uses; and
Ÿ promoting acceptance of responsibility for the ownership and use of firearms.
Some types of firearms have more potential for harm than others, either because they are more likely to be used in crime and violence or because they are more likely to cause serious harm if so used. In most countries automatics and hand-
guns have for those reasons been the first targets of bans or special controls. In other countries, for example Canada and Australia, semi-automatics have been included in this category.The principal limitations to the effectiveness of such controls are that:
Ÿ where considerable numbers of such firearms are already available to criminals, it is hard to recover them;
Ÿ if a ban is successful, other firearms may be substituted; and
Ÿ depending upon the geographic situation of the country, there may be difficulty preventing illegal imports.
Reducing Availability to High-Risk Users
Almost without exception firearms control systems seek to limit the availability of firearms to criminals, children and incompetents. This is effected by such means as licensing, restricting access to those who are unsuitable to have possession of firearms by controls on purchases, requiring firearms to be secured against unauthorised users, and providing penalties for criminal misuse.
The limitations of such controls are:
Ÿ again the significance of any substantial existing stock of "grey" or "illegal" firearms;
Ÿ the difficulty of effectively identifying in advance those who are or may become incompetent; and
Ÿ the limited deterrent effect of increased penalties.
Banning or Restricting High-Risk Uses
Common examples are prohibitions on discharging firearms in populated areas, carrying loaded firearms in vehicles, and carrying concealed weapons; and the provision of penalties for using or possessing firearms for criminal purposes.
The limitations of such controls are:
Ÿ the first three rely on police being able to discover and arrest offenders before the event, and thus prevent breaches, which is difficult to achieve; and
Ÿ in many cases, for example the use of firearms in armed robbery or assault, the offender will already be subject to heavy penalties for robbery or assault, and the likelihood of additional penalties having a deterrent effect is particularly low.
Promoting Acceptance of Responsibility for Ownership and Use of Firearms
Common methods are:
Ÿ security requirements;
Ÿ systems of registration of individual firearms;
Ÿ controls over dispositions of firearms;
Ÿ training programmes both in the theory and practice of firearm use;
Ÿ encouraging club membership; and
Ÿ public programmes emphasising the risks and responsibilities attaching to firearm use and ownership.
The limitations of such strategies include the difficulties historically associated with registration programmes, which require skills in the establishment and maintenance of registers and high levels of compliance if they are to be effective, the difficulty of reaching those who use firearms for criminal purposes, and of persuading those who are reached of the need to adopt a more responsible attitude.
The first three strategies are generally effected by legislated controls. Although legislation may also play a part in the fourth group (for example security conditions and registration requirements) other forms of encouragement are at least as significant.
Most forms of control are more effective if combined with others. Controls over high-risk uses are more effective if combined with the screening of users. An integrated firearm-specific licensing and registration system has more potential than either licensing or registration on its own. Registration has little value unless combined with controls over subsequent dispositions of the registered firearms.
As will appear later, I believe that appropriate firearms control will require a combination of controls which pays regard to current New Zealand views, and that such a combination could have a beneficial effect.
Three factors will, however, prevent any quick and dramatic improvement in the levels of misuse of firearms by that means. The first is the need to obtain better basic information. The second is the limitations inherent in nearly all conventional control measures, as indicated in the preceding pages. The third is the fact that in the long term substantial advances are likely to depend as much on changing social attitudes towards guns, and achieving a culture which recognises appropriately the responsibilities which attach to gun use and ownership, as on changes in legislated controls. And changes in social attitudes cannot be achieved overnight.
To date, few countries have succeeded in establishing suitable protocols for determining and reviewing the appropriate balance between public and private interests in the use and control of firearms. Attempts to do so have often foundered on the circumstance that firearm control has become a controversial subject, with protagonists on both sides taking up entrenched positions which they then defend with almost religious zeal.
It was not always so. Until the 1960s public and academic interest in gun control was at a low level, save only in the United States where a large accumulation of firearms, and in particular handguns, was causing concern by the 1930s. Elsewhere firearms control legislation imposed quite limited controls, similar in kind to those imposed on other kinds of "dangerous goods", and concentrated on handguns, which were seen as having the highest potential for misuse.
That relatively relaxed attitude changed with the advent throughout the Western World in the early 1960s of increased levels of violent crime, which carried with them increases in the levels of gun crime (see part 3.1). Concerns about those trends led to greatly increased public and academic interest in firearms control.
One of the earliest American commentators on gun control was Professor Franklin Zimring, who from 1968 to 1969 was Director of Research for a "Task Force on Firearms" as part of the Eisenhower Commission on the Causes and Prevention of Violence. In a series of papers from that period Zimring compared the relative lethality of guns and other common weapons. One of his findings was that assaults with firearms were five times as likely to cause death as assaults with knives, a factor which he described as the "instrumentality effect" of firearms. From that and related research Zimring concluded that there was a positive relationship between gun availability and gun deaths, and that if increases in the US gun armoury were not halted they were likely to increase deaths from violent crime.
Directly contrary opinions about the relationship of firearm availability to crime levels, and the justification for and effectiveness of firearm controls, were expressed in 1972 by Mr Colin Greenwood in Firearms Control, the most detailed study, then or since, of the nature and apparent consequences of gun controls in the United Kingdom. Greenwood argued that a fundamental Common Law right to have and use arms for self-defence had been wrongly ignored by the UK Parliament in 1920. He accepted that in 1972 "it would be entirely unsafe to assert that a Common Law right to be armed exists in this country", but clearly believed that the case for such a right was still a meritorious one. However, his principal argument was that in any event the substantial controls which had been enacted in Britain over the preceding 50 years were ineffective. He claimed that despite the long-standing requirement of registration of rifles and handguns, more than 50 percent of those weapons were unregistered, and that the restrictions controlled only the law-abiding shooters, who did not need control. He also asserted that a comparison of numbers of registered firearms with rates of gun crime since the beginning of the century showed no relationship between the two from which it could be inferred that restriction of the availability of legal guns would reduce the level of gun crime, gun suicides or accidents.
Since those early studies there has been a massive increase overseas in academic and popular studies of gun control issues. While this has provided additional information, it has achieved only slight progress towards reconciliation of the principal opponents. Rather, the "gun control debate" has continued to foster partisanship and high emotions. Those who support controls have been seen by their opponents as part of a conspiracy to deprive gun-owners of fundamental rights and to leave them at the mercy of criminals and dictatorial political forces. In turn those opposing control have been seen as the dupes of the arms manufacturers. As was said in 1991:
Neither supporters nor opponents of gun-control laws have felt any great need to cite facts. Strong emotions have kept the conflicting parties at each other’s throats.
The discussion of the submissions to this Review in part 2.7 shows that in 1996 many people in New Zealand took less extreme positions. However a significant minority argued strongly against any form of controls, claiming they were wrong in principle and would in any event be ineffectual.
Whatever the merits of those opinions I have no doubt that they were sincerely held and important to those who declared them. It is also proper to record that, almost without exception, strong opinions were not accompanied by personal attacks, but were combined with a willingness to supply further information, to explain the bases of the stated opinions, sometimes at considerable expense of time and effort. For all those reasons those arguments which were advanced in any significant number of submissions require examination.
The arguments were essentially based on five propositions:
1. that there is no positive link between the availability of legal guns and levels of gun crime or suicide (the "Link" argument);
2. that legislated regulation of the use of guns is ineffective to control gun crime (the "Effectiveness" argument);
3. that possession of firearms for self-defence should be recognised, and indeed encouraged, as a proper and sufficient reason for possession (the "Self-defence" argument);
4. that the only substantial defect in the existing regime is a failure to enforce the existing gun laws by imposing appropriate penalties; and
5. that "the problem is not so much a gun control problem as a mental health problem".
The last two propositions are best considered as parts of broader questions. However, it is useful to consider and express views on the three others at this point, before proceeding to consider issues which would not need examination if such "root and branch" arguments were accepted.
The "Link" and "Effectiveness" Arguments
Both arguments received close consideration in the run-up to the recent reforms of their gun control systems by Canada, Australia and the United Kingdom, and were not accepted in any of those countries.
Their most detailed consideration was made in the course of the Inquiry by the senior Scottish judge, Lord Cullen, into the killing at Dunblane on 13 March 1996 of 16 children and their teacher by a gunman using a semi-automatic pistol. That Inquiry was seen by supporters and opponents of gun control laws in the United Kingdom as an appropriate forum to obtain determination of their basic differences, which had been much argued over the preceding decades, but left largely unresolved. Although Lord Cullen saw his brief as being limited to examining the Dunblane incident and making recommendations on matters arising from it, that task did require that he consider the "central issues", on which he received voluminous advice.
During the Inquiry the Home Office argued for the existence of a strong and direct relationship between the level of legally-held firearms and the rates of gun homicide and suicide. It placed considerable reliance on the opinions of Professor Killias, of the University of Lausanne, and Professor Gabor, Professor of Criminology at the University of Ottawa. Evidence the other way was submitted for the gun user groups by Mr Greenwood and by Messrs Munday, Stevenson and Yardley, all of whom had previously taken active parts in supporting the interests of gun users. Their original evidence examined the Home Office evidence and the papers on which it relied critically and at length. Then, when the Home Office sought to add to its original submissions, a full opportunity was given, and used, to reply to the additional evidence. There could hardly have been a more careful and comprehensive debate.
The issues of the existence of a link between the availability of firearms and the level of gun crime and gun suicide and the effectiveness of legislated controls over firearms were both considered by Lord Cullen in chapter 9 of his report.
On "availability", while accepting that there were weaknesses in the opinions of Killias and Gabor, Lord Cullen concluded that on balance the evidence supported a finding that there was in the United Kingdom a positive relationship between levels of gun ownership and crime.
On the question of the effectiveness of legislated gun controls his Lordship first addressed the theory of "weapon substitution" (that if guns were not used, other weapons would be substituted to like effect) but found it unpersuasive. He next considered the theory of "net benefit", and American research which had found that in parts of the United States in which there was high usage of handguns, their possession for the purpose of defence against criminals could discourage crime. On this Lord Cullen commented:
Different countries may require to tackle their problems in different ways. In Great Britain the level of firearm ownership is relatively low. I do not see anything in the net benefit argument which is relevant to this country.
In the result he found against the contention that gun controls were incompetent to affect the level of gun crime.
Finally, as to the link between gun availability and gun suicide, Lord Cullen accepted the opinion of Professor Gabor, and the studies to which he referred, that "higher levels of firearm ownership tended to have higher rates of firearm suicide", a position which Lord Cullen attributed to "the transitory nature of suicidal motivation".
I can see no differences between the New Zealand situation and that in the United Kingdom which would require a different conclusion from that in the Cullen Report on the nature of the link between gun availability and the levels of gun crime and suicide, or on the claimed inutility of gun controls.
One difference points rather the other way. Greenwood noted that in England handguns had been recovered in amnesties at the rate of 25 percent per annum of total registered handguns, and inferred that unregistered handguns probably exceeded those on the register. Whether or not that inference is considered compelling, it is at least persuasive: though Lord Cullen did not see a "definite factual basis" for a similar inference to be drawn as to the total British armoury. But at least with handguns it was logical to argue that in Britain the recovery of a large proportion of unregistered guns would still leave many for use by those wanting them for criminal purposes. The Cullen Report nevertheless concluded that the claim that availability had no relevance proceeded from a fallacy, namely that if any foreseeable reduction in the volume of guns did not totally prevent criminal use, a reduction in availability could not have any effect on such use. That conclusion applies equally in New Zealand. But while the evidence shows that there is in this country a considerable store of illegal firearms, nobody has suggested that there are (as in Britain) as many unregistered handguns as registered handguns. Such a claim would be difficult to reconcile with the facts that the last eight amnesties in New Zealand, covering a period of 12 years, recovered in total less than 2 percent of the registered total, and that the price of handguns on the New Zealand black market is as high as ordinary market prices and considerably higher than those of other guns.
In 1996 the Northwestern University in Chicago held a Symposium to examine recent developments in the study of "Guns and Violence in America". Thirteen of the papers presented were published in the Journal of Criminal Law and Criminology. The lead paper, by Zimring, contended that while research over the previous two decades did not satisfy all critics, most current studies were now premised on the theory "that gun use in robbery and assault elevates the rate of injury from that which would result if the same assailants had used other weapons". However, he warned against expectations of quick and final results from the introduction of closer gun controls in two passages which deserve quotation:
There are so many different reasons why existing data do not point unambiguously to particular firearms control policies that it is almost comforting to list them: important data are not yet available or the facts are in dispute; the value to be assigned to unrestricted gun ownership is a key variable in assessing the desirability of gun policies and is not an empirical question; and the impact of particular control strategies on violence is not known. The determination of proper firearms policy never was simply a matter of processing data and never will be …
Only a few years ago, a short article on gun control would typically take the form of a "tour de horizon" that came to general conclusions about gun control as a unitary concept. Arguments that sweep so broadly were probably never appropriate to the subject. But the research and analysis reported in these pages rubs our noses in the complex reality of firearms control.
The pragmatism central to both those passages is in my view the only safe approach. The studies in gun control to date which deserve respect claim no more than to establish presumptive rules which fall to be applied having regard to local conditions.
The only New Zealand study of either the "link" or "effectiveness" issues has arisen from research into the nature and causes of suicide. Both the IPRU and the MHC have recently taken the position that availability of firearms within the home is a factor which bears on the level of suicide, but that it would be wrong to regard it as a dominant factor. Two paragraphs in particular of the Commission’s submission deserve publication:
[L]egislative and public policy around firearms use is only one component of a comprehensive policy to reduce firearms related suicide deaths. Restricting the means of suicide is one component that needs to work alongside more effective identification of those at risk, increased responsiveness to the needs of high-risk groups and better understanding of suicide risk and warning factors. The area of firearms control as a means of reducing suicide is controversial. What is often not understood is that the controls often do not have a direct relationship but need to be seen in a wider arena of policy and service provision that leads to an overall environment where firearms and their inappropriate use is reduced. The data from Australia does provide some indication that young men are more vulnerable where there is high firearm availability and where there is a culture of gun use (probably linked also to a "macho" culture).
It is not reasonable to argue that increased gun control would greatly reduce the New Zealand suicide rate. However, if one is adopting a conservative approach, it is likely that increased gun control would save some lives. In addition, wider acknowledgement and therefore responsiveness, by those who own and use firearms, of the risk that is posed to themselves and others who have access to their firearms through suicide cannot and should not be ignored. Looking ahead, it is also likely that ensuring that New Zealand does not become a country where a gun culture is more acceptable will reduce suicide deaths from firearms in the future. We currently do not have such a culture. However, with the increasing impact of media and international movements on our communities, it is not difficult to see that violence including models of self harm could be influenced by the models available through greater global communications.
Standing rather against that acceptance of a link is the 1996 paper by Beautrais et al which studied records of suicides in Canterbury. That study doubts the existence in New Zealand of any such relationship between availability and suicide as has been found overseas. The limited area from which its sample was taken, the fact that that area had a lower suicidal tendency than the national average (as calculated both by the IPRU and the MHC) and the difficulty on available information of assessing some of its assumptions and weightings, militate against treating the Beautrais paper as superseding the other opinions. In any event its final conclusion is that:
Whilst it is open to debate whether further regulation and control of firearm access would lead to a reduction in the number of suicides by gunshot, it is our belief that such limitations may prevent a small number of impulsive suicide attempts made in situations of extreme anger or distress.
The absence of other New Zealand research into the "link" and "effectiveness" issues left no alternative but to look for further overseas research, and then endeavour to apply an appropriate adjustment for differences in social conditions. And as the nearest jurisdiction to ours in terms of social conditions is Australia, it is proper to give particular consideration to Australian research and experience.
The most detailed Australasian study of the "link" and "effectiveness" issues was made by Professor Harding of the University of Western Australia in 1981. Harding had the Greenwood and Zimring studies, and endeavoured to relate them to the statistics about firearm use and ownership in Australia which were available to him. On the link between gun ownership and crime he favoured the Zimring position, both because of its inherent merit (as Harding saw the position) and also because it appeared to fit the Australian data. His conclusion was that:
The greater the number of guns which are available in a community, the more frequently they will be used in personal violence situations. Opinions may differ on whether cause and effect have been satisfactorily established, on whether dangerousness can be adequately measured, on whether the variables present in diverse and dynamic human situations can be satisfactorily controlled for the purposes of analysis. But the stark fact remains that, for societies deriving from the British tradition and at about the same stage of civilisation and development, gun availability seems to be associated with gun violence. It would be a brave person who denies that there is a link; and the onus is certainly upon such a person to prove his point. In my view, no one has yet done so.
Harding was uncertain about the link between gun availability and gun suicide, stating that on the information he then had he regarded the position as unproved for Australia. A later study by Dudley, Cantor and de Moore reviewed available data, as well as the literature to that date, and concluded that:
Beyond reasonable doubt, a causal relationship exists between gun ownership and firearm suicides and homicides. The role of method substitution is controversial, but is probably less important among the young.
This is a view now shared by Professor Harding.
In relation to the suicide/gun suicide linkage, I agree with the MHC’s finding that there is a significant relationship between availability in the home and the rate of gun suicide, and also the Commission’s rider to the effect that a reduction of such availability is unlikely to produce a major reduction in suicide rates unless it is part of a broader programme directed to that end.
Harding further developed his views on the link between availability of firearms and crime in "Gun Use in Crime, Rational Choice, and Social Learning Theory". This argued that the much discussed combination of high gun ownership and relatively low gun crime rates in Israel and Switzerland stemmed from the fact that in both countries:
[T]he citizen predominantly owns firearms as an aspect of his obligation to the state rather than as a means of expressing his own desires and values. The social meaning of gun ownership is anchored in civic responsibility.
He compared this with the position in the United States, where Zimring and Hawkins saw "personal gratification" as "the overwhelming motive for private gun ownership".
Harding found additional support for culture, as "a key variable between current social conditions and behaviour" affecting the extent of misuse of guns, from his examination of the patterns of intra-group violence of Western Australia Aborigines. His research found that, while the homicide rate for Aborigines was between six and 15 times the national homicide rate, they were less likely to use guns as murder weapons. Once the young Aborigine had sufficient stamina he was permitted to join the adults in hunting expeditions and came to regard the firearm as an essential tool for that purpose. As one Aborigine said:
Guns are for shooting tucker … not people.
Two other Australian studies support a positive linkage. The first, a 1988 article by Marsden, argued that the much higher rural than urban ownership of guns in Australia was the reason for higher numbers of firearm assaults and firearm suicides in rural than in urban areas. The second, a 1990 article by Wallace, revisited the same topic in a consideration of NSW homicides. This studied the nature of the weapons used and the localities of the offences. It showed a 60 percent higher proportion of gun homicide in rural than in urban areas. Wallace commented "[i]t is tempting to believe the relationship between gun ownership and the greater proportion of gun homicides is more than coincidental".
Support for the view that gun controls can be effective also appears to be given by a comparison of the rates of homicide and gun homicide in the different Australian States. Because the numbers of homicides in the three smaller States or Territories (Tasmania, Northern Territory and ACT) are so few that any major incident skews their results completely, the comparison was limited to the five larger States.
Historically the extent of gun control in Queensland and New South Wales has been relatively slight, and that in Victoria, South Australia and Western Australia more substantial. Registration of individual firearms has been negligible in the two first named States, present in an incomplete form in Victoria, and present in more extensive forms in South and Western Australia. Of all five States Western Australia has the longest history of gun controls, these having been built up progressively over the past 50 years. It was the only State where the recent reforms did not call for a major alteration of its procedures.
The statistics published by the Australian Institute of Criminology in the volume Violent Deaths & Firearms in Australia: Data & Trends to 1994, and the statistics provided by the Australian Bureau of Statistics for 1995, produced comparative rates per 100,000 population for firearm homicide for the five years 1991 to 1995 as follows:
Western Australia 0.28 (registration)
Victoria 0.36 (registration)
South Australia 0.42 (registration)
New South Wales 0.49 (no registration)
Queensland 0.51 (no registration)
Because homicide rates vary between States, another relevant ratio appeared to be that between firearm homicide and all homicide. This produced the following percentages:
Western Australia 13.3 (registration)
Victoria 16.8 (registration)
South Australia 19.0 (registration)
Queensland 26.2 (no registration)
New South Wales 27.2 (no registration)
In 1981 Harding endeavoured to relate data about robberies and gun robberies in Australia to studies of that topic in the United Kingdom and United States and noted that sufficient data were not available for that purpose. He saw research in this area as being required as a matter of urgency. Attempts this year to obtain Australian statistics of robbery and armed robbery to complete a similar comparison to that made in relation to homicide were equally unsuccessful.
As robbery is generally thought to be a more reliable basis for comparative study than homicide, the above comparison cannot have compelling significance. At the same time the extent of the match between the levels of firearm control in the different States and their levels of firearm homicide does warrant consideration.
All countries whose criminal codes stem from the English Common Law include some provision which excuses or reduces criminal liability for action necessary to the accused person’s self-defence. The present New Zealand provision is s 48 of the Crimes Act 1961, which closely defines the limits of that necessary principle.
The self-defence proposals promoted as part of the "gun debate" go beyond such remedial provisions and seek recognition of a right to obtain and "bear" arms for the purpose of warding off possible attackers.
The assertion of a right to bear arms may be a live issue in the United States by reason of that country’s constitutional provisions and of the evidence available there that a reduction in gun crime may result from increasing concealed gun ownership in districts which have high levels of gun crime and where the possession of firearms, and especially handguns, is the rule rather than the exception.
Lord Cullen concluded that it was not a live issue in the United Kingdom in 1996. In my view it is equally not a live issue in New Zealand in 1997, and has not been for many years. Ever since 1920 our legislature has proceeded on the assumption that it is desirable to control firearms in accordance with their potential for misuse. That is also the position taken by a clear majority of those people who made submissions to this Review, and in that regard was the position taken not only by a majority of non-users, but also by a majority of shooters. Indeed only a handful of the 2,800 submissions argued that self-defence should be recognised as a sufficient reason for possession of a firearm in this country, and a far greater number specifically disapproved that situation.
It should nevertheless be noted that since this Review was commissioned there have been public statements by two senior police officers supporting consideration of arming security personnel, such as bank guards. Those comments produced immediate and adverse comment, generally based on the argument, which in this society must be unanswerable, that the principal result of the arming of guards would be to raise the level of violence. Thus the Chief Executive of the Bankers Association, having recalled that there was a time when bank officers customarily carried firearms, added that: "[f]ortunately somebody was wise enough to put an end to that practice".
In my view there is no sound argument for the recognition of a general right to obtain and possess arms for self-defence, and clear argument against the desirability of doing so.
Similarly, the question of whether the possession of firearms should be deemed a "right" or "privilege" is a barren argument in this country, where the issue is not whether there should be controls over firearms, but what controls are appropriate in the public interest.
Summary
To sum up on the first three basic issues:
The link or relationship between firearms availability and misuse of firearms: It is appropriate to consider this separately in relation to each of the three types of misuse: criminal misuse; suicide; and accident.
Criminal misuse: The material previously considered supports a similar conclusion to that which Lord Cullen reached in relation to the United Kingdom, namely that there is a positive relationship or link between availability and the level of gun crime. At the same time the availability of a substantial pool of "illegal" guns in New Zealand prevents the conclusion that this is such a strong and direct link that a particular reduction in legal gun availability would produce a proportionate reduction in gun criminality. Put another way, a 20 percent reduction in the number of legal firearms could not reasonably be expected to achieve anything approaching a similar reduction in the level of firearm crime. That circumstance makes it necessary to consider the relative costs and benefits likely to flow from the recovery of particular classes and quantities of firearms, which factor must be important in deciding the scope of any banning and buy-back programmes.
Suicide: This issue was also fully argued before Lord Cullen. He concluded that the link between gun availability and gun suicide was somewhat clearer than that he had already found between gun availability and gun crime. Informed Australian opinion now takes the same view. The majority of New Zealand opinion is to similar effect, while cautioning that reducing the availability of firearms should be associated with other initiatives. While still further research must be appropriate, a positive link of the kind recognised in the MHC submission is in my opinion reasonably well established.
Accidental misuse: There is no evidence to suggest that availability has any less an effect on the level of accidental misuse than on criminal or suicidal misuse.
Legislative controls of the minimum age for users, and providing that firearms should be secured from children and others not capable of using them properly, are standard and sensible measures to reduce the risk of accidental misuse.
The argument that legislative controls over the use of firearms are ineffective to control gun crime: The reasons which led Lord Cullen to find against this argument seem to me equally valid in the New Zealand situation. Further support for that conclusion is given by the circumstance that after considerable debate the Canadian Government supported additional gun controls in 1991, and that after yet further and very intense debate it supported yet further controls in 1995. In Australia support for gun controls was articulated at some length in Harding’s 1981 study. More recently such support was inherent in the decisions to proceed with broad reforms approved countrywide in 1996. Some additional support can be found in the evidence of a relationship between the extent of controls and the rates of gun homicide in the different States.
While there are limits to the effectiveness of legislated controls, there is no sufficient case for the contention that they are ineffective, and a clear preponderance of evidence and opinion the other way.
The self-defence argument: The arguments are overwhelmingly against the recognition of a general "right to bear arms" in this country. Indeed it would be timely to include in any new legislation a declaration that self-defence is not a legitimate purpose for the acquisition of firearms in this country.
n
Recommendation
1 That the new Firearms Act specifically provide that self-defence is not a legitimate purpose for the acquisition of firearms.
While the reasons for worldwide increases in the attention being given to gun control over the past four or five years are not clear, there can be no doubt either that such increases have occurred or that the trend shows no signs of abating.
One reason suggested for the new wave of interest is that it originates from the application of new methods of analysis by social scientists examining the causes and patterns of violence, and the fact that these tend to highlight the role of firearms by throwing up "the statistical patterns that public health researchers favour". Certainly it is from public health organisations rather than the criminologists or criminal justice organisations that the call for reforms has chiefly come. Other causes may have been the emphasis given by the media to gun violence as one of the most dramatic forms of violence, and the concern felt by an increasingly urbanised society which has become increasingly unfamiliar with firearms and the legitimate uses to which they can be put. Other particular concerns of countries bordering the former USSR have been the emergence from the area of large quantities of former military hardware, and evidence of international trafficking in arms, and of links between organised crime and drug and gun trafficking.
In addition, mass killings have triggered political responses in several countries. Such events preceded the reforms made in Canada in 1991 and 1995. The Australian reforms of 1996 to 1997 followed the killings at Port Arthur. The English reforms of 1996 to 1997 followed the killings at Dunblane.
In all three countries, the reforms created controversy, but gained parliamentary approval after active public and political debate. In Canada, opposition to the new reforms continues to subsist at a relatively high volume. In Australia, where spokesmen for gun users warned of a shooter backlash and massive non-compliance, public opinion appears to be overwhelmingly in favour of the reforms. In all three countries, Canada, Australia and the United Kingdom, the balance of public opinion appears to have moved towards tighter controls.
Canada
The recent Canadian reforms are a considerable extension of controls introduced in 1991. They limit the use of certain classes of firearms and provide for the establishment of closer licensing and the registration of firearms countrywide.
Australia
In Australia the immediate catalyst for the reforms was the massacre of 35 people at Port Arthur in April 1996 by a gunman wielding two semi-automatic weapons. The following month the Federal Government urged the enactment by the States of stricter and uniform gun laws, and provided $A500M to the State Governments to implement a ban and buy-back of semi-automatic weapons, the weapons used in the massacre, and to establish uniform systems of firearms control including licensing and registration of firearms.
United Kingdom
In the United Kingdom, the massacre of 16 children and their teacher at a primary school in Dunblane, Scotland, by a gunman using semi-automatic pistols, prompted the banning and buy-back of pistols, but did not seek to control semi-automatic rifles.
Still wider movements for closer gun controls are now appearing in international councils. In 1995 a United Nations Congress at Cairo called for consideration of "Firearms Regulation for the Purposes of Crime Prevention and Public Safety". This became the responsibility of the Economic and Social Council, and its agency the Commission on Crime Prevention and Criminal Justice. The latter set up a project committee to obtain details of the present systems of firearms control of UN member states. Questionnaires sent out late in 1996 to 49 member states, including New Zealand, produced 46 replies by 5 March 1997, a result the committee considered "indicative of the strong interest of the international community in the question of firearm regulation".
The following month the committee brought out a draft report advising progress to date, with an analysis of the answers to the questionnaires which is to be further developed with the intention of publication in final form at the end of 1997.
The committee’s draft report was considered at a meeting of the Commission in Vienna on 9 May 1997. This endorsed the conclusions and proposals of an expert group working with the committee which had: (a) reported that trans-national illicit trafficking in firearms had become a matter of serious concern and that there were established links between such trafficking, serious crime and trans-national organised criminal networks; and (b) asked member states to recognise as appropriate common elements, and where they did not already exist to include in their arms control codes, provisions:
Ÿ regulating the safe use and storage of firearms;
Ÿ providing appropriate penalties for serious offences involving the misuse of firearms;
Ÿ for amnesty or similar programmes to encourage citizens to surrender illegal, unsafe or unnecessary firearms;
Ÿ for a licensing system to ensure that persons who are at high risk of misusing firearms are prevented from possessing and using firearms; and
Ÿ for a record-keeping system for firearms, including a requirement for the appropriate marking of firearms at manufacture and at import to assist criminal investigations, discourage theft and ensure the accountability of owners.
One resolution of the project committee, which has been endorsed by the Commission, was to hold four regional workshops later this year, including one for Asia and the Pacific to consider the exchange of information and the endorsement of the five stated principles for arms control.
The present draft report contains a series of tables. Table 1, concerning general regulation of ownership, shows New Zealand as towards the centre of the international scale of control. Table 4, on ownership and regulation of firearms, shows New Zealand second only to Finland in numbers of firearms per 1,000 persons, New Zealand at 308.90 being markedly higher than Canada at 241.48 and Australia at 195.90. Table 6 shows deaths involving firearms per 100,000 persons and lists statistics for homicide/firearm homicide, suicide/firearm suicide and accidental death involving firearms. On the firearm homicide table New Zealand was markedly lower than either Australia or Canada, (New Zealand 0.22, Australia 0.56, Canada 0.60), while for accidental death it was higher (New Zealand 0.29, Australia 0.11, Canada 0.13).
However these statistics need to be interpreted carefully. In each case the tables are footnoted:
The data are "as reported" in the survey. There are often differences in the way in which states compile statistics. International comparisons should therefore be made with caution.
That comment is reinforced by para 62 in the section "Conclusions Drawn from the Study". This advises that existing sources of information, including the study itself, "still could not be used to evaluate the comparative effectiveness of current levels of firearm regulation in reducing harm".
The need for care in interpreting the questionnaire material can be illustrated by considering Table 4, the table which considered ownership per 1,000 persons and has been the subject of newspaper commentary in recent weeks. Table 4 attributes to New Zealand totals of 1.1 million firearms and 250,000 licensees. The estimates in part 2 of this report are materially lower—700,000 to 1 million firearms and 206,000 licensees. Table 4 similarly attributes to Australia a total of 3.5 million firearms, whereas estimates of the Australian armoury made prior to the estimate of the current buy-back ranged from 3.5 million as a lower limit up to 5 million.
The 1994 study by Gabor in Canada concluded that the per capita number of firearms in Canada was "much lower than in the United States, about the same as Australia and far in excess of most European countries". Nothing in the material provided to this Review suggests that Gabor’s equation of Australian and Canadian rates of ownership was at fault. The same material does suggest that, if indeed firearm ownership in New Zealand is higher than that in Australia, the difference is marginal and certainly insufficient in itself to call for different gun control policies.
The appropriate use of the table is as a guide, to be considered along with any other information available. If a particular comparison is made of rates of firearm ownership in Canada, Australia and New Zealand, using Table 4 and such other information as is available, it is a fair inference:
Ÿ that apart from the special difficulties experienced by Canada because of its long and relatively open boundary with the United States, and a consequently high population of handguns, the rates of firearm ownership in all three countries are of a similar order;
Ÿ that all three have relatively high rates in the international scale; and
Ÿ that those rates are much lower than that in the United States, but much higher than in the majority of European countries¾ this is understandable having regard to the predominantly rural beginnings of all three countries, their wide open spaces and the greater opportunities for hunting and game shooting which each has provided, and still does provide, than do the European states.
In the absence of direct New Zealand representation in the Commission’s or the committee’s proceedings, I asked the Australian delegate, Mr Daryl Smeaton, Director of the Australian Commonwealth Law Enforcement Board, if he would supply copies of the decisions of both bodies and keep me informed of their progress. I am indebted to him for his prompt assistance in those regards. Apart from providing copies of the relevant record, he advises that the reform proposals summarised above met opposition from the National Rifle Association of the United States, but otherwise received widespread support. He considers it likely that when the Commission’s recommendations are put before the Economic and Social Council they will be approved, and that funds will be found to proceed with the suggested programme. He sees the next objective for the Commission as seeking approval of common basic principles for firearms control. This he thinks will be the principal task for the regional workshops, which he believes could be set up this year, as the Commission has proposed. He saw the ultimate aim, "harmonising" gun control systems, as a more complex and longer-term objective. He advised that of the four regional groups the Asia and Pacific region, into which New Zealand would come, is probably the most committed to the proposed reforms, regional support being led by Japan, and strongly supported by Australia, with other regional states supporting and none opposing.
In terms of the five basic principles of which approval will be sought, the New Zealand code already recognises the first four. It is the fifth, the establishment of a "record-keeping system for firearms", which is absent from our current "licensing but no registration" arrangements.
The different needs of individual countries may well slow progress beyond the consideration of "basic principles" to the settlement of uniform gun controls. However, the degree of support for reform to this point must make the likelihood of achieving the next goal of the Commission more than a remote possibility.
Approval of those "basic principles" by regions, and later by the Commission, would not bind this country to their acceptance and implementation, at least until and unless New Zealand became a signatory to a Convention or Treaty at General Assembly level. But it would be unrealistic to consider deferring the reform of New Zealand controls until those processes may be completed.
However, it would be equally unrealistic for a country reviewing its arms controls to disregard overseas develop-ments and fail to keep in touch with international and regional views on those issues. This must particularly be the case when it is appreciated that our nearest neighbour, Australia, is taking a leading part in the United Nations reform programme.
Further, the geographical remoteness of New Zealand from those areas from which are emerging the weapons causing concern at United Nations level, and from most of the movements which have given rise to international terrorism, should not be seen as a sufficient guarantee that these will not affect us in the future.
New Zealand should consider joining in any further consideration by the United Nations’ councils of firearms control issues.
See Newton and Zimring, Firearms and Violence in American Life: Report to the National Commission on the Causes and Prevention of Violence, 1969; and Zimring, "Firearms and Federal Law: The Gun Control Act of 1968" Journal of Legal Studies 1975, 4: 133. The themes in those papers were developed, with responses to criticisms of them to that date, in Zimring and Hawkins, The Citizen’s Guide to Gun Control, 1987.
Greenwood, Firearms Control: A Study of Armed Crime and Firearms Control in England and Wales, 1972.
Ibid, at 91. That claim was based on the duty to keep arms imposed on citizens in Saxon times and the provisions in the Bill of Rights 1688 which gave Protestants the right to bear arms for the defence of their faith.
Zimring, Scientific American, 1991 (November), at 24.
Kleck and Gertz, "Armed Resistance to Crime" Journal of Criminal Law and Criminology 1996, 68(1).
That research has since been replicated: see Lott and Mustard, "Crime, Deterrence, and Right to Carry Concealed Handguns" Journal of Legal Studies 1997 (January).
Lord Cullen, The Public Inquiry into the Shootings at Dunblane Primary School on 13 March 1996, 16 October 1996, at 113 (paras 9.30- 9.32).
Ibid, at 107 (para 9.5).
See the discussion of "The Number of Firearms" in part 2.3.
Journal of Criminal Law and Criminology, 1996, 86(1).
Zimring, "Reflections on Firearms and Criminal Law", ibid, at 8 and 9.
Injury Prevention and Research Centre (now the IPRU), Intentional Injury in New Zealand¾ Analysis and Monitoring Report 4, 1995 (June).
Beautrais, Joyce and Mulder, "Access to Firearms and the Risk of Suicide: A Case Control Study" Australian and New Zealand Journal of Psychiatry 1996 (December).
Firearms and Violence in Australian Life, 1981.
Ibid, at 131.
"Jumping the Gun: Firearms and the Mental Health of Australians" Australian and New Zealand Journal of Psychiatry, 1996.
Routine Activity and Rational Choice, vol. 5, Transaction, 1993.
Ibid, at 95.
Zimring and Hawkins, supra at note 1, chapters 4, 7 and 8.
Supra at note 14, at 94.
"Gun Control: A Banker’s Perspective" Gun Control Review, 1988 (December).
"Guns in Homicide¾ The Social Reality" Weapons and Violence in Australia, 1990.
See supra at note 14, at 132- 145.
Robbery statistics were available only for the past three years, during which time both Queensland and New South Wales changed their basis for measuring robbery to include victims of trauma as well as persons suffering direct loss or injury. Both circumstances made it unsafe to seek to apply the available figures, especially as the most recent figures for New South Wales showed a massive increase in the volume of robberies which could only be explained as consequential upon the change in the basis of measurement.
NZ Herald, 31 January 1997.
Supra at note 11, at 6.