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Constitutional Constraint: The United States Should Follow in New Zealand’s Gun Reform Footsteps

By: Jillian Fantuzzi

The Second Amendment to the United States Constitution protects “the right of the people to keep and bear arms.”[1] The United States is one of three countries worldwide that provide a constitutional right to bear arms, but the only country where this right is not accompanied by a restrictive condition.[2] Despite the apparent gun crisis that increasingly characterizes the United States, legislators struggle to implement regulation due to the Supreme Court’s classification of the Second Amendment as a right to self-defense.[3] However, where the initial purpose of the Second Amendment was to equip civilians as members of the militia to ensure the security of the newly independent United States, it has, in turn, evolved into a loophole for domestic terrorism.[4] Thus, the death count resulting from lack of adequate gun regulation now surpasses the casualties and represents the civil anarchy the United States was initially attempting to prevent.


To the contrary, the absence of a constitutional right to bear arms in other countries has permitted effective regulation of guns within their borders.[5] New Zealand represents a model country when it comes to effective gun control. Following a gun massacre in Christchurch in 2019, the first mass shooting event in New Zealand in over a decade,[6] New Zealand’s Parliament immediately enacted significant gun reform.[7] Within seventy-two hours, members of the Parliament agreed on the need to implement reform and made drastic changes in the wake of the Christchurch attack.[8] Gun laws that had largely gone unchanged since 1992 were altered significantly in just two weeks, including amendments to the 1983 Arms Act,[9] a ban on military-style semi-automatic weapons and high-capacity magazines, in addition to the establishment of a buyback program to encourage gun owners to relinquish their guns to police.[10] The rapid nature of New Zealand’s gun reform was a direct result of the fact that New Zealand’s constitution does not provide an explicit “right to bear arms”[11] allowing Parliament the ability to freely regulate conduct labeled “self-defense” under criminal law.[12]


New Zealand’s instantaneous reform triggered by the Christchurch attack not only represents the country’s willingness to recognize and learn from its mistakes, but also demonstrates a government’s ability to effectively enact change when it is not constrained by the country’s constitution. Rob Bernstein, Co-Chair of the IBA Human Rights Law Committee, concedes that judicial acquiescence to gun violence has served to greatly hinder potential progress, citing most famously, the 2008 Supreme Court decision in District of Colombia v. Heller as the culprit.[13] In Heller, the Supreme Court expanded the Second Amendment in holding that its “reference to a ‘well-regulated militia’” represents “just one of the purposes for which arms might be carried.”[14] This emphasis of gun ownership as a guaranteed right to self-defense served to thwart any previous gun law reform efforts and, under NYSRPA v. Bruen, represents an obstacle to future efforts to restrict the Second Amendment.


In the recent 2022 case of NYSRPA v. Bruen, the Court built on the standard established in Heller, expanding the constitutional right to gun ownership and implementing a “radical framework to evaluate future Second Amendment challenges.”[15] In rejecting application of the balancing test in Second Amendment cases, the Court created a test that essentially represents a per se rule that will serve to indefinitely uphold lenient and, ultimately, lethal gun laws.[16] In issuing the new standard, the majority announced: “[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects the conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”[17]


Bruen’s expansion of Heller represents an even greater obstacle to gun reform and a fresh wound for victims and advocates struggling to end mass shootings. The danger posed by this precedent is represented in the lives that continue to be lost following this ruling in 2022. For instance, a mass shooting shortly thereafter in Maine on October 26, 2023, became known as the single deadliest mass shooting in 2023, and one of 500 mass shootings in the year alone.[18] The frequency of mass shootings that plague the United States represents the imminent nature of the United States’ gun crisis and the critical need for the Court to amend or restrict the Second Amendment. Although the Court in Heller may not have limited the right to bear arms, it did admit and establish that the right is not unlimited.[19] Thus, the power lies in the same body that has protected this right to use such authority to constrain it.


Hypocrisy not only defines the current use of the Second Amendment, a constitutional right created to protect civilians which is now recognized as the source of civilian-initiated massacres, but also the United States’ condemnation of violence abroad. Countries known as headliners for conflict-related violence, such as mass genocide, civil war, and ethnic cleansing, maintain civilian casualties that are comparable, rather than insurmountable, to the United States.[20] According to a 2016 empirical study, the United States had higher rates of homicides from guns than Pakistan, almost equal the gun homicide rates as the Democratic Republic of the Congo, and only two fewer gun homicide deaths per 100,000 people than Iraq.[21] Thus, where the United States judiciary has failed to promote safety through constitutional constraints on firearms, the United States risks being held accountable at the international level.


Under international human rights law, states are required to protect their citizens.[22] As a result, many United Nations (U.N.) bodies have maintained concerns about the gun crisis in the United States. For instance, the U.N. High Commissioner for Human Rights conducted a report on the “human rights concerns associated with the private purchasing, possession and use of guns,” finding that the United States has violated a majority of the most basic human rights outlined in the OAS Charter, the American Declaration of the Rights and Duties of Man, and more.[23] Additionally, acknowledging that “human rights begin at home,” the Gun Violence and Human Rights Project, created in 2017 following the Las Vegas gun massacre, also presented their related findings on the United States gun crisis to the Inter-American Commission on Human Rights in an attempt to demonstrate the problem has evolved from an issue of gun rights to, more accurately, an issue of human rights.[24] Ultimately, where the Human Rights Committee has established that the United States has an obligation to not only “effectively protect,” but also to make an “effort[ ] to curb violence that include[s] the continued pursuit of legislation” restricting gun rights, the U.S. crisis may face international ramifications if domestic change is not accomplished soon.[25]


Although the argument can be advanced that the relative newness of international law in combination with alleged gaps in effective enforcement mechanisms serve as only a minor source of intimidation for the United States to implement change, it is important to note that international pressure is only part of the picture. Strong public support amongst Americans for gun reform will only grow as casualties continue to increase. Perpetrators of gun violence in the form of mass shootings do not discriminate based on one’s political or educational backgrounds, every U.S. citizen represents a potential victim. As such, every U.S. citizen represents an eventual protestor. Thus, where the Supreme Court has recognized that the Second Amendment right to bear arms is not unlimited and the judiciary has the power to restrict this right, the United States must acknowledge and confront the greater duty it owes to protect citizens “right to life.”


New Zealand’s gun reform not only represents a roadmap to resolution, but also evidence of the effectiveness of constitutional constraint. It only took one mass shooting for New Zealand to implement change, however, following over 19,000 civilian casualties from mass shootings between 2015 and 2022 alone,[26] the United States Supreme Court decided not only to uphold Heller, but also to expand it in Bruen. This is a clear representation of its problematic position on gun control.[27] Thus, until the United States enacts reform, every gun-related mass atrocity can be understood as a result of constitutional complicity.

Jillian Fantuzzi is a Staff Editor at CICLR.

[1] U.S. CONST. amend. II.

[2] Ty McCormick, How Many Countries Have Gun Rights Enshrined in Their Constitutions?, Foreign Policy (Apr. 5, 2023), []. 

[3] Charles Sturt University, Why is the United States Constitution Held at Gun Point?, CSU News (June 21, 2022), [] [hereinafter CSU].

[4] Id.

[5] Id. 

[6] Courtney Norris, Why the U.S. and New Zealand’s Responses to Mass Shootings Are So Different, PBS News Hour (Mar. 27, 2019), [].

[7] Katie Kouchakji, Gun Control: New Zealand Shows the Way, Int’l Bar Assoc., [].

[8] Id.  

[9] Id.  

[10] Norris, supra note 6. 

[11] Id. 

[12] CSU, supra note 3.   

[13] Kouchakji, supra note 7.  

[14] CSU, supra note 3. 

[15] Billy Clark, Second Amendment Challenges following the Supreme Court’s Bruen Decision, Giffords L. Ctr. (June 21, 2023), [].

[16] CSU, supra note 3. 

[17] Clark, supra note 15.  

[18] Ana Faguy, Maine Shooting Is Among This Year’s Deadliest, Forbes (Oct. 26, 2023), [].

[19] CSU, supra note 3. 

[20] Katie Leach-Kemon, Visualizing Gun Deaths: Comparing the U.S. to the Rest of the World, Humanopshere (June 13, 2016), []. 

[21] Id. 

[22] Leila Nadya Sadat & Madaline George, Guns and Human Rights: U.S. Violates International Human Rights Law, Wash. Univ. L.: Harris Institute (Apr. 5, 2018), [].

[23] Id.  

[24] Id.  

[25] Id. 

[26] Mass Shootings, EVERYTOWN, (last visited Nov. 3, 2023).

[27] Melissa Chan, New Zealand Banned All Assault Weapons. Could That Work in America?, Time (Mar. 22, 2019), []. 


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