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

From The Acton Institute
By Jordan Ballor

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.