United States vs. Everybody, a comparative analysis of gun laws in America and various countries around the world  

The United States has come under fire recently for their gun control laws (no pun intended); with the deadliest mass shooting in the country’s history happening this past October (Las Vegas), and with the tragic school shooting at Majory Stoneman Douglas High School happening just last month on February 14th, 2018. Are these mass shootings enough to change gun control? The National Rifle Association (NRA) probably thinks not, but with the movement gaining strength with Millennials and Generation Zer’s behind it, are these Baby Boomer era gun laws about to change? We might not find out anytime soon, but shouldn’t this be the time we look into changing? Thoughts and prayers have become insufficient means of coping with mass shootings, but what laws should the United States enact? Will the Legislature take the next step, or will the Supreme Court need to overrule past cases to create a new precedent? We may not know what venue will be taken, but what we can know is how to implement successful gun laws. We can look to the neighbouring countries and find concrete coping mechanisms that aren’t just tweets of “thoughts and prayers to the victims’ families.”

 

To lay the ground work, the Second Amendment of the United States Constitution simply states

 

“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.”[i]

 

At first instance, one can think that this simply allows the right to bear arms under the presumption that the arms belong to the independent state militia – or at least that was my first thought the first time I read the United States Constitution thoroughly, when I was 23 years old and about to start law school in Pennsylvania. However, I really only truly understood the constitution when I was a 1L and took a constitutional law class. You see, the United States is the home of the “oldest [working] written constitution still in use today.”[ii] So it can be confusing to understand how something written in 1787 translate into eighteen-year-old Nikolas Cruz[iii] walking into a shop and buying an AR-15 assault rifle?

 

Well, long story short, judicial interpretation is really the main reason the Second Amendment has given power to the citizens of the United States to be able to obtain and hold guns as individuals.[iv] In 2008, everything changed when Supreme Court Justice Antonin Scalia (a justice who believes in the originalist interpretation of the Constitution – which means exactly what you think it means, he believes the constitution should be given the meaning that the Framer’s intended when it was written over 200 years ago in a practically different civilization) wrote the majority opinion for the Supreme Court of the United States and found that “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”[v]

 

Now, let’s compare this right to bear arms that was so hard fought for by Justice Scalia to how the world handles gun laws. Firstly, let us look at the statistics and numbers that are directly related to gun ownership, and the derivative of that, homicide by gun violence rates.

[vi]

Gun ownership rates in America is nearly triple the next country, Norway, as you can see in the graph above. While it is interesting to note that gun ownership in America is massively disproportionate to the next country, we will give it to the fact that America does have a population 65 times that of Norway and about 10 times that of Canada, the third country in high gun ownership rates. But, how does this relate to gun homicides per country?

[vi]

 

It’s remarkable that the only country, besides the United States, that has reached the milestone of more than 100,000 gun homicides is Israel, a country that since 2000 has experience five separate wars.

 

Now the question to ask is, how does Norway, with the second highest gun ownership rates, keep their homicide rates so low? Or how does Canada, Australia, or the United Kingdom keep their homicide rates so low?

 

Well, in America to obtain a gun “you can buy a semi-automatic gun ‘in 15 minutes’” it took even less time when “a reporter from the Philly Inquirer” bought an AR-15 in “seven minutes.”[vii] The gun laws in America vary by state, as with most other laws in America. While in some states the “store will run two background checks, a state check, and a federal check[] … provid[ing] nearly instantaneous results[,]” it is still alarming that “in 33 states, private sellers are allowed to sell guns without performing any kind of background check – state or federal.” [viii]

 

In America’s neighbours to the North, Canada, only the Royal Canadian Mounted Police (the federal police) are allowed to distribute gun licenses for restricted guns, which include handguns or any other restricted firearms.[ix]

 

When these mass shootings occur, the world is quick to compare America to Canada, but a country that responded beautifully to a mass shooting – and has not since had one – Australia should not be overlooked. In 1996, Australia was devastated by a mass shooting that resulting in 35 people dying and 23 being wounded.[x] What was the response that Australia had? Well, twitter wasn’t invented then, certainly not “thoughts and prayers” the response was to enact some of the “most comprehensive firearm laws in the world.”[xi]

 

“Less than two weeks after the [Australian] massacre, all six … states agreed to enact the same sweeping gun laws banning semi-automatic rifles and shotguns – weapons that can kill many people quickly.”[xii] Now, to obtain a gun in Australia, it is plainly illegal to own anything automatic, or semi-automatic or anything that would allow a shooter to go on a devastating shooting spree. What was the result of these bans? There has not been another mass shooting since 1996. Today, citizens in Australia must be judged as fit and proper persons, must be 18 years old or over, have to “have undergone firearms safety training course[s] and; have provided documentation about the storage arrangements in which they will secure the firearm.”[xiii] And of course, firearms need to be registered.[xiv]

 

So, do the reinforced, restrictive gun laws that were enacted post-massacre in Australia have any correlation to the fact that haven’t had another mass shooting since then? I think yes. So, what should America do? Firstly, its repulsive that the NRA has used this time post-school shooting to up their PR and fundraise, tripling their donations.[xv] But you can’t blame that on all Americans, but what you can get angry about is the fact that legislation has given more pushback to the proposed bans on semi-automatic weapons than they have supported it. America needs to learn from these mistakes, instead of letting history repeat itself. America needs gun reform. The literal children who sound more educated than some elected representatives, simply want reform. They want it to be harder to obtain guns, to put in screening tests like Australia. To have gun registration and licenses to be fully regulated, perhaps like in Canada by the federal police. This is not just about the rights under the United States Constitution anymore, this about lives that are recklessly being lost.

 

Justice Stevens, who famously dissented to Justice Scalia’s opinion in District of Columbia v. Heller wrote an op-ed in the New York Times on March 27th, 2018, summarized the opinions of many today, post-Newton, post-Orlando, post-Las Vegas, post-Marjory Stoneman Douglas High School and I’ll leave you with this, these kids who are demanded for change, demanding for reform, “should demand a repeal of the Second Amendment.”[xvi]

 

About the Author: Pooja Toor is a 2L at Penn State Law.


 

[i] U.S.C.A. Const. Amend. II

[ii] Goodlatte says U.S. has the oldest working national constitution, @politifact,

http://www.politifact.com/virginia/statements/2014/sep/22/bob-goodlatte/goodlatte-says-us-has-oldest-working-national-cons/ (last visited Mar 20, 2018).

[iii] CBS News, Florida school shooting suspect bought 7 rifles in past year, law enforcement

source says CBS News (2018), https://www.cbsnews.com/news/florida-school-shooting-suspect-nikolas-cruz-bought-seven-rifles/ (last visited Mar 18, 2018).

[iv]D.C. v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 2786, 171 L. Ed. 2d 637 (2008)

[v] D.C. v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 2786, 171 L. Ed. 2d 637 (2008)

[vi] U.S. Gun Policy: Global Comparisons, Council on Foreign Relations,

https://www.cfr.org/backgrounder/us-gun-policy-global-comparisons (last visited Mar 23, 2018).

[vii] Kate Taylor, Here’s how easy it is to legally buy a semiautomatic gun in the US Business

Insider (2018), http://www.businessinsider.com/how-to-buy-a-gun-2017-10 (last visited Mar 23, 2018).

[viii] Id.

[ix] Government of Canada, Royal Canadian Mounted Police, Frequently Asked Questions –

General Frequently Asked Questions – General – Royal Canadian Mounted Police (2013), http://www.rcmp-grc.gc.ca/cfp-pcaf/faq/index-eng.htm (last visited Mar 23, 2018).

[x] Krishnadev Calamur, Australia’s Lessons on Gun Control The Atlantic (2017),

https://www.theatlantic.com/international/archive/2017/10/australia-gun-control/541710/ (last visited Mar 23, 2018).

[xi] Australian Institute of Criminology, Publications search Australian Institute of Criminology

(2018), https://aic.gov.au/publications/current series/rpp/100-120/rpp116/06_reforms.html (last visited Mar 23, 2018).

[xii] Katie Beck, Are Australia’s gun laws the solution for the US? BBC News (2017),

http://www.bbc.com/news/world-australia-35048251 (last visited Mar 23, 2018).

[xiii] Sylvia Varnham O’Regan, How easy is it to get a gun in Australia? SBS News (2015),

https://www.sbs.com.au/news/how-easy-is-it-to-get-a-gun-in-australia (last visited Mar 23, 2018).

[xiv] Id.

[xv] AJ Willingham, Donations to the NRA tripled after the Parkland shooting CNN (2018),

https://www.cnn.com/2018/03/28/us/nra-donations-spike-parkland-shooting-trnd/index.html (last visited Mar 29, 2018).

[xvi] John Paul Stevens, John Paul Stevens: Repeal the Second Amendment The New York Times

(2018), https://www.nytimes.com/2018/03/27/opinion/john-paul-stevens-repeal-second-amendment.html (last visited Mar 29, 2018).

Differences between the Canadian and American Legal System

 

Coming to law school in the United States, as a born and raised Canadian, left for a huge gap in practical knowledge of the law. Growing up in Canada, you have the Charter of Rights and Freedoms[i] you learn about, and you automatically assume and know that everything that happens in one part of the country, is a reflection of what would happen on the opposite coast.

 

Firstly, learning the United States Constitution was a whirlwind, the most difficult part being that reading it for the first time when you are twenty-three years old, you cannot possibly see how some of the articles or amendments to the Constitution that can consist of twenty words, founded thousands of interpretations that make no sense, on first glance – if you do not know the ways different judges interpret the constitution (originalists, the living constitution, etc.).

 

But these things you can overcome and actually translate very well between Canada and America. It is in between the lines, the little nitpicky things that really take you by surprise. After learning the foundations of law in 1L, going back to Canada to practice with a firm in Toronto was easy enough – but it was the little things that you can get stuck behind on. Calling an appellate brief in Canada a “Factum,” aside, here are three things that are different between the United States Legal System and the Canadian Legal System.

 

  1. Political System (Federalism)

 

While both the United States and Canada have successful federal government involvement, the parliamentary confederacy of Canada has structured the court system very differently – which we will discuss shortly.

 

The most important distinction between the political influences is that Canada as one singular federal criminal code.[ii] Canada uses their federalism to have a universal criminal code that keeps a consistent blanket of laws to govern Canada. This probably helps the Canadian legal system function because its realistically easier in a country that’s population is about 35 million[iii], compared to America’s 326 million[iv]. It also was in the heart of the creation of the United States of America that States would retain some-sort of independence, something that was compromised in the creation of Canada.

 

The universal criminal code in Canada doesn’t apply necessarily to the civil code, as the provinces and territories have their own rules when it comes to that, but semantics.

 

  1. Structure of the Court System

 

Naturally, from having such different ways of binding the country by governing laws, the way the courts are set up are bound to differ. While the structure in the United States can be confusing because of basic jurisdictional questions between the States and Federal courts – who could essentially hear every type of cause – in Canada there is a more unified structure the mimics a pyramid structure. In Canada, each provincial trial court will hear every minor claim – there is rare venue shopping – to ensure that the application of the laws in that province adhere to a standard of uniformity.[v] There are Courts of Justices that will hear the minor civil and criminal issues, while the Superior courts of each province will deal with the most serious offenses. Each province has their trial courts, a Court of Appeal (not Appeals) that is designed “to correct simple errors” that happen at the lower levels.[vi] And while Canada has created a “‘federal’ court system, these federal courts of limited jurisdiction remain far less important than the courts in the basic [provincial] structure outlined above.”[vii] This simplistic structure of the Canadian courts leaves for the Supreme Court of Canada to be far more influential in the provinces, giving them the ability to promote federalism amongst the provinces; further promoting uniformity amongst the governing laws.[viii]

 

Whereas, in the United States of America, there are two separate and functioning federal and state court systems, that often intertwine with the cases they hear. Each State has the ability to enact their own type of state legal systems, and there will always be clashes between federalism and state powers, the United States has figured out how to successfully function within both systems and with their overlapping jurisdictions.

 

  1. Foreign Jurisprudence

 

Finally, it should be noted that the United States rarely relies on the trends and case precedent on matters more developed in other countries to make decisions, and their opinion on the matter is often outspoken by various influential persons in the judiciary (i.e. Scalia). While the Honourable Justice Antonin Scalia once said that he “fear[s] the courts’ use of foreign law in interpreting the Constitution will continue at an accelerated pace,”[ix] it is the opposite view in countries like Canada. Canada is quick to look to England or the United States when it comes to filling gaps in precedence.[x] While Justice Scalia has used his platform as Supreme Court Judge in numerous cases – most famously in, Romper v. Simmons and Lawrence v. Texas – to air his grievances against reliance on foreign jurisprudence, the Supreme Court of Canada has actually relied on the Supreme Court of the United States to decide a case where no precedent existed in Canada.[xi]

 

This list remains far from complete. While this is three of many differences between the Canadian and American legal systems, there are many facial and deeply seeding differences between the countries. However, this does not to mean there are not similarities between the systems, it just means that both systems – difference and similar – are both highly function systems of two very prestigious judiciaries.

 

While it may seem hard, conceptually, to translate what is learned in one country’s law school into another country’s legal industry, the bottom line it is not. Yes, you learn from different sets of systematic governing laws, or different terminology what it comes down to is that the law is the law. Where there are lawyers, judges, and other legal professionals there will always be the ability to learn and adapt to any legal system in any country.

 

About the Author: Pooja Toor is a 2L at Penn State Law.


 

[i] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11

[ii] PETER MCCORMICK, CANADA’S COURTS 24 (1994).

[iii] Government of Canada Statistics Canada, Canada at a Glance 2017 Population Canada at a Glance 2017 Population Government of Canada, Statistics Canada (2017), https://www.statcan.gc.ca/pub/12-581-x/2017000/pop-eng.htm (last visited Dec 22, 2017).

[iv] U.S. and World Population Clock, Population Clock, https://www.census.gov/popclock/ (last visited Dec 23, 2017).

[v] McCormick, supra note ii, at 23.

[vi] Id.

[vii] Mark C. Miller, A Comparison of the Judicial Role in the United States and in Canada, 22 Suffolk Transnat’l L. Rev. 1, 3 (1998)

[viii] Id. at 4.

[ix] MARY FLOOD, Copyright 2008 Houston Chronicle, Scalia criticizes courts citing foreign trends Houston Chronicle (2008), http://www.chron.com/news/houston-texas/article/Scalia-criticizes-courts-citing-foreign-trends-1766787.php (last visited Dec 23, 2017).

[x] The Use of Foreign Jurisprudence by the Supreme Court, TheCourt.ca (2008), http://www.thecourt.ca/714/ (last visited Dec 23, 2017).

[xi] United Food and Commercial Workers, Local 1518 (UFCW) v KMart Canada Ltd[1999] 2 SCR 1083.

 

Amexit? Can Trump leave NAFTA & What Would Happen if he did

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the position of JLIA, Penn State Law, School of International Affairs, or Pennsylvania State University.

 

On June 23, 2016, the United Kingdom (“UK”) voted to leave the European Union (“EU”), the body that has been the definition of prestige in the realm of international treaties.[i] This triggered hysteria, rightfully so, because while the rest of the world were not a part of this treaty, it was so intertwined with any country’s relation Europe that it left countries like America and Canada wondering what it meant for them. But while “Brexit” has caused such uncertainties for countries that are not party to the EU, what would happen if a country like America were to withdraw from one of their biggest treaties? Well, this speculation might have to become reality if President Trump ends up getting his way and leaving the North American Free Trade Agreement.

 

Before Donald Trump took office, he consistently spewed during Presidential Debates that “NAFTA is the worst trade deal maybe ever signed anywhere, but certainly ever signed in this country.”[ii] While Trump argues that NAFTA has only ever hindered the US, would it in fact be as devastating to America for them to leave NAFTA as it is for the UK to leave “EU”? International Trade expert, and Penn State Law faculty member, Takis Tridimas argues otherwise.[iii] Tridimas argues that, while he believes it is unlikely that the US will withdraw from NAFTA, in the event of NAFTA Article 2205[iv] being triggered by the US, he vehemently argues that it will not have such an impact of that of Brexit.[v] This leads Tridimas to mentioning that where Brexit solely uses the EU as the basis of negotiations, and how to readdress issues that are up in the air with the UK leaving certain mechnisms of the EU, the United States comes into NAFTA and withdrawal of NAFTA needing their position to encompass the United States Constitution.[vi]

 

This draws the attention to another issue with President Trump’s solo campaign to withdraw from NAFTA, does he know the Commerce Clause exists?[vii] Under the Constitutions Commerce Clause, Trump cannot terminate NAFTA, nor could he have even renegotiated it without a “yes” from Congress.[viii] While we can debate whether or not the President’s knowledge of the Constitution is substantial or not, or if America leaving NAFTA will be as detrimental of Brexit has been in the EU, the question remains: What would happen if America did leave NAFTA?

 

Well there’s a whole slew of things. Firstly, in my opinion, the dispute resolution mechanism of NAFTA would disappear first and fast.[ix] This system of dispute resolution has been rarely used, with the United States, Canada and Mexico all being members of the World Trade Organization (“WTO”), NAFTA’s Chapter 20 and WTO’s Dispute Settlement Understanding (“DSU”) are often venue shopped between these three countries, with preference being given to the WTO’s dispute resolution system.[x]

 

Secondly, Trump would not hesitate to reinstate various tariffs on Mexico, likely using the WTO’s maximum tariff percentage, as it would be the only binding material on free trade that America would need to adhere to foregoing NAFTA.

 

Thirdly, the most interesting events to succeed the termination of NAFTA would to examine if the United States, Canada and Mexico either multilaterally institute a new agreement or if the countries would forego one another and decide to bilaterally create agreements. With the uncertainty of Congress today, it would not be surprising if Canada and Mexico decided that they would institute a new trade agreement between the two of them. This would likely be followed with new bilateral agreements between Canada and the US and the US and Mexico. Wouldn’t this just unnecessarily complicate matters of free trade between the three countries? To have terminated one simple, all-encompassing, agreement because of a President’s pride (or the Republican Congress’s pride) be replaced with two separate binding agreements, that must also adhere to the global trade organizations guidelines; where’s the common sense in that?

 

Whether the United States decides to leave NAFTA or not is something that only time will be able to tell and we may never see the hypothetical consequences; yet, it could be worse … just look at the failing negotiations of Brexit.

 

About the Author: Pooja Toor is a 2L at Penn State Law.


 

[i] Alex Hunt & Brian Wheeler, Brexit: All you need to know about the UK leaving the EU BBC News (2017), http://www.bbc.com/news/uk-politics-32810887 (last visited Nov 9, 2017).

[ii] Cooper Allen, 2016 general election debate schedule USA Today (2016), https://www.usatoday.com/story/news/politics/onpolitics/2015/09/23/2016-general-election-debate-schedule/81238502/ (last visited Nov 15, 2017).

[iii] Pooja Toor & Takis Tridimas, Personal Interview of Takis Tridimas (2017).

[iv] North American Free Trade Agreement, Can.-Mex.-U.S., Art. 2205, Dec. 17, 1992, 32 I.L.M. 289 (1993).

[v] Pooja Toor & Takis Tridimas, Personal Interview of Takis Tridimas (2017).

[vi] Id.

[vii] U. S. Const. art. I, § 8, cl. 3

[viii] Id.

[ix] North American Free Trade Agreement, Can.-Mex.-U.S., Ch. 20, Dec. 17, 1992, 32 I.L.M. 289 (1993).

[x] R. Leal-Arcas, Comparative Analysis of NAFTA’s Chapter 20 and the WTO’s Dispute Settlement Understanding, 8 in Transnational Dispute Management, www.transnational-dispute-management.com (2011)