Right to keep and bear arms

The right to keep and bear arms (often referred to as the right to bear arms) is called the people's right to possess weapons (arms) for their own defense by its proponents.^[1]

Inclusion of this right in a written constitution is uncommon. In 1875, 17 percent of constitutions included a right to bear arms. Since the early twentieth century, "the proportion has been less than 9 percent and falling".^[2] In their historical survey and comparative analysis of constitutions dating back to 1789,^[2] Tom Ginsburg and colleagues "identified only 15 constitutions (in nine countries) that had ever included an explicit right to bear arms. Almost all of these constitutions have been in Latin America, and most were from the 19th century".^[3]

Generally, where modern constitutions refer to arms at all, the purpose is "to allow the government to regulate their use or to compel military service, not to provide a right to bear them".^[2] Constitutions which historically guaranteed a right to bear arms are those of Bolivia, Colombia, Costa Rica, Guatemala, Honduras, Liberia, Mexico, Nicaragua and the United States of America.^[4] Nearly all of the Latin American examples were modelled on that of the United States.^[3] At present, out of the world’s nearly 200 constitutions, three still include a right to bear arms: Guatemala, Mexico, and the United States; of these three, only the last does not include explicit restrictive conditions.^[2]

Background[edit]

The Bill of Rights 1689 allowed Protestant citizens of England to "have Arms for their Defence suitable to their Conditions and as allowed by Law" and restricted the ability of the English Crown to have a standing army or to interfere with Protestants' right to bear arms "when Papists were both Armed and Imployed contrary to Law" and established that Parliament, not the Crown, could regulate the right to bear arms.^[5][6]

Sir William Blackstone wrote in the 18th century that the right to have arms was auxiliary to the "natural right of resistance and self-preservation" subject to suitability and allowance by law.^[7] The term arms as used in the 1600s, the term refers to the process of equipping for war.^[8] It is commonly used as a synonym for weapon.^[9]

In Old English, beran (past tense bær) means to bear, bring, bring forth, or produce; to endure or sustain; or to wear.^[10]

Since the initial use of the term in the 1300s, arms have evolved and advanced.^[11] In the 17th century, firearms were relatively new devices for warfare or practical uses such as hunting, and swords, spears, and other manual weapons were more prevalent until the 18th century.^[11] In the 19th and 20th centuries, firearms came to the forefront of the concept of the right to keep and bear arms.^[12]

No right to bear firearms exists under international law, in particular there is no human right to self-defense and its means. Instead, states are under an obligation to reasonably limit access to firearms as part of their duty to protect the right to life.^[13]

Americas[edit]

Guatemala[edit]

Gun rights in Guatemala have changed over time. In the current constitution, residents have the right to own and use firearms in their homes, which can be forfeited only by judicial order.^[14] Article 38 of Guatemalan constitution states the following:

The right to own weapons for personal use, not prohibited by the law, in the place of inhabitation, is recognized. There will not be an obligation to hand them over, except in cases ordered by a competent judge.
The right to bear arms is recognized, [and is] regulated by the law.^[15]

Mexico[edit]

Article 10 of the Mexican Constitution of 1917 states the following:

The inhabitants of the United Mexican States have the right to possess arms within their domicile, for their safety and legitimate defense, except those forbidden by Federal Law and those reserved for the exclusive use of the Army, Militia, Air Force and National Guard. Federal law shall provide in what cases, conditions, under what requirements and in which places inhabitants shall be authorized to bear arms.^[16]

United States[edit]

In the United States, which has an English common law tradition, a longstanding right to keep and bear arms was recognized prior to the creation of a written national constitution.^[17] Today, the right is specifically protected by the US Constitution and many state constitutions,^[18] which grant a right to own arms for individual use and to bear these same arms both for personal protection and for use in a militia.^[19] The Second Amendment to the United States Constitution 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.^[20]

Convicted felons, persons adjudicated as mentally ill, and some others are prohibited from possessing firearms and ammunition in the US. In most states, residents may carry a handgun or other weapon in public in a concealed or open manner on one's person or in proximity, but that is restricted by some states and many cities. Some jurisdictions require a permit for concealed carry, but most jurisdictions do not require a permit for open carry, if it is allowed. Some states and localities require licenses to own or purchase guns and ammunition, as detailed in a summary of gun laws in the United States. Other states do not require such formalities. States and cities are varied on whether they allow the ownership and use of weapons (such as automatic weapons) which are lawfully registered and taxed by the NFA.

Early legal wording can be found in the Pennsylvania Constitution of 1776. Following the American Revolution, one of the first legislative acts undertaken by each of the newly independent states was to adopt a reception statute that gave legal effect to the existing body of English common law to the extent that American legislation or the Constitution had not explicitly rejected it.^[21] Many English common-law traditions, such as the right to keep and bear arms, habeas corpus, jury trials, and various other civil liberties, were enumerated in the US Constitution. Significant principles of English common law prior to 1776 remain in effect in many jurisdictions in the United States. The common law of England is still the rule of decision, except if it conflicts with the US Constitution, state constitutions, or acts of Congress or state legislatures, in every state except Louisiana.^[22]

Europe[edit]

United Kingdom[edit]

The right to keep and bear arms is not legally or constitutionally protected in the United Kingdom.^[23] Most^[24] handguns, automatic, and centerfire semi-automatic weapons are illegal to possess without special proviso.^[23][25]

The English Bill of Rights 1689 allowed Protestants the right to bear arms within the law.^[26] The first serious control on firearms was established with the passing of the Firearms Act 1920.^[27] Since the passing of gun control laws, the UK has one of the lowest firearm death rates among developed nations, with 0.2 deaths per 100,000, compared to 10.2 in the U.S.^[28]

Since 1953, it has been a criminal offence in the United Kingdom to carry a knife (with the exception of non-locking folding knives with a cutting edge of 3 inches (7.62 centimetres) or less) or any "offensive weapon" in a public place without lawful authority or reasonable excuse. It should be noted that the cutting edge of a knife is separate to the blade length. The only manner in which an individual can carry arms is on private property or any property which the public does not have a lawful right of access as the law only creates the offence when it occurs in public^[29][30] e.g. a person's own home, private land, the area in a shop where the public have no access, a security guard carrying a weapon on a closed building site, etc. Furthermore, Section 141 Criminal Justice Act 1988 specifically lists all offensive weapons that cannot technically be owned - even on private property - by way of making it illegal to sell, trade, hire, etc. an offensive weapon to another person^[31].

Furthermore, the law does not allow an offensive weapon or ordinary item intended or adapted as an offensive weapon to be carried in public before the threat of violence arises. This would only be acceptable in the eyes of the law if the person armed themselves immediately preceding or during an attack (in a public place). This is known as a "weapon of opportunity" or "instantaneous arming"^[32].

Switzerland[edit]

The Swiss have a statutory right to bear arms under Article 3 of the 1997 Weapons Act.^[33][34][35] Switzerland practices universal conscription, which requires that all able-bodied male citizens keep fully automatic firearms at home in case of a call-up. Every male between the ages of 20 and 34 is considered a candidate for conscription into the military, and following a brief period of active duty will commonly be enrolled in the militia until age or an inability to serve ends his obligation.^[36] Until December 2009, these men were required to keep their government-issued selective fire combat rifles and semi-automatic handguns in their homes as long as they were enrolled in the armed forces.^[37] Since January 2010, they have had the option of depositing their personal firearm at a government arsenal.^[38] Until September 2007, soldiers received 50 rounds of government-issued ammunition in a sealed box for storage at home; after 2007 only about 2,000 specialist troops are allowed to keep the ammunition at home.^[39]

Switzerland is estimated to have one of the highest personal gun ownership rates in the world.^[40] While it has a low overall crime rate by European standards, it has one of the highest gun suicide rates in Europe.^[41] However, it also has one of the world's lowest overall homicide rates, considerably lower than the European average.^[42] The gun homicide rate ranks in the middle of Western European countries.^[43]

Swiss gun laws are considered restrictive.^[44] Owners are legally responsible for third-party access to and usage of their weapons. Licensing procedures are similar to those in other Germanic countries.^[45] In a referendum in February 2011, voters rejected a citizens' initiative that would have obliged members of the armed services to store their rifles and pistols on military compounds and required that privately owned firearms be registered.^[46]

Gun violence and the politics of the right to bear arms[edit]

Legal restrictions on the right to keep and bear arms are usually put in place by legislators because they believe that they will reduce gun related violence.^[47][48][49] Their actions are frequently the result of grass roots pressure for such controls. The Brady, Snowdrop Campaigns, and the Million Mom March are recent examples of campaigns calling for tighter restrictions on the right to keep and bear arms.

Accident statistics are hard to obtain, but much data is available on the issue of gun ownership and gun related deaths. The United Nations Interregional Crime and Justice Research Institute (UNICRI) has made comparisons between countries with different levels of gun ownership and investigated the correlation between gun ownership levels and gun homicides, and between gun ownership levels and gun suicides. A strong correlation is seen in both.

During the 1989 and 1992 International Crime Surveys, data on gun ownership in eighteen countries have been collected on which WHO data on suicide and homicide committed with guns and other means are also available. The results presented in a previous paper based on the fourteen countries surveyed during the first ICS and on rank correlations (Spearman's rho), suggested that gun ownership may increase suicides and homicides using firearms, while it may not reduce suicides and homicides with other means. In the present analysis, four additional countries covered by the 1992 ICS only have been included, and Pearson's correlation coefficients r have been used. The results confirm those presented in the previous study.^[50]

UNICRI also investigated the relationship between gun ownership levels and other forms of homicide or suicide to determine whether high gun ownership added to or merely displaced other forms of homicide or suicide. They reported that "widespread gun ownership has not been found to reduce the likelihood of fatal events committed with other means. Thus, people do not turn to knives and other potentially lethal instruments less often when more guns are available, but more guns usually means more victims of suicide and homicide." Speculating on possible causes the researchers concluded that "all we know is that guns do not reduce fatal events due to other means, but that they go along with more shootings. Although we do not know why exactly this is so, we have a good reason to suspect guns to play a—fatal—role in this".^[51]

The research reporter found that guns were the major cause of homicides in 3 of the 14 countries it studied; Northern Ireland, Italy, and the United States. Although the data seem to indicate that reducing the availability of one significant type of arms—firearms—leads to reductions both in gun crimes and gun suicides and in overall crimes and overall suicides, the author did caution that "reducing the number of guns in the hands of the private citizen may become a hopeless task beyond a certain point", citing the American example.^[51]

In contrast to the 1993 study however, a more recent study by UNICRI researchers from 2001 examined the link between household gun ownership and overall homicide, overall suicide, as well as gun homicide and gun suicide rates amongst 21 countries. Significant correlations between household gun ownership and rates of gun suicides for both genders, and gun homicide rates involving female victims were found. There were no significant correlations detected for total homicide and suicide rates, as well as gun homicide rates involving male victims.^[52]

See also[edit]

• Index of gun politics articles
• Overview of gun laws by nation
• Right of self-defense
• Knife legislation

Notes and references[edit]

Further reading[edit]

• Baker, Dennis (2009). Collective Criminalization and the Constitutional Right to Endanger Others. Criminal Justice Ethics. 
• Cramer, Clayton E. (1994). For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms. Praeger Publishers. ISBN 0-275-94913-3. 
• Dizard, Jan E.; Muth, Robert Merrill; Andrews, Stephen P., Jr. (1999). Guns in America: A Reader. New York University Press. ISBN 0-8147-1878-7. 
• Halbrook, Stephan P. (1989). A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees. Greenwood Press. ISBN 0-313-26539-9. 
• Malcolm, Joyce (1996). To Keep and Bear Arms: The Origins of an Anglo-American Right. Harvard University Press. ISBN 978-0674893078. 
• Malcolm, Joyce (2004). Guns and Violence: The English Experience. Harvard University Press. ISBN 978-0674016088. 
• Spitzer, Robert J. (1998). The Politics of Gun Control. Chatham House Publishers. ISBN 1-56643-021-6. 
• Uviller, H. Richard; William G. Merkel (2002). The Militia and the Right to Arms. Duke University Press. ISBN 0-8223-3017-2.