Right to keep and bear arms

This article refers to the right to bear arms (weapons). For the rights of an individual to possess a coat of arms, see the article on heraldry.

The right to bear arms refers to the concept that individuals, and not just states, have a right to weapons. This right is also often presented in the context of the broader right of self defense.

Definition of "bear arms"

This is a topic of considerable debate. In modern usage, the expression "bear arms" is usually considered synonymous with the phrase "have or carry firearms".

Although the term 'arms' means firearms most commonly, laws and statutes also usually define other types of weapons, such as swords, knives, and other similar objects, to be arms as well. Additionally, some scholars argue that, at the time of the drafting of the Bill of Rights, the expression "bear arms" referred to the carrying of weapons in the context of military service, as opposed to the use of firearms by civilians (Uviller & Merkel 2002).

On the other hand, the United States Court of Appeals for the Fifth Circuit stated in 2001 that:

"there are numerous instances of the phrase 'bear arms' being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the 'people' [or 'citizen' or 'citizens'] "to bear arms in defense of themselves [or 'himself'] and the state,' or equivalent words, thus indisputably reflecting that under common usage 'bear arms' was in no sense restricted to bearing arms in military service." [1]

Historical sources or protections of the right

The right to bear arms varies by country (see State (law)) and at times varies by jurisdiction within a sovereign state.

Jurisdictions with English judicial origin

Main article: English law

Frequently cited sources:

• Common Law
• English Bill of Rights, 1689 [2]

The responsibility to keep and bear arms in jurisdictions operating under English Common Law follows a precedent that predates the invention of firearms, originating contemporaneously with the jury trial and the emergence of the common law system, during the reign of Henry II, who promulgated the Assize of Arms in 1181, which required knights and freemen to keep arms and to bear them in service of the king.[3]. A Common Law right to have arms for self defense was codified in the English Bill of Rights of 1689 (also known as the English Declaration of Rights), at least for Protestants. England, Ireland, the Colonies in North America (which became the United States), Canada, and Australia all received this Common Law inheritance and long maintained a responsibility to keep and bear arms tradition originating from this common basis. Subsequent to this, over the last 80 years, in all these countries except the United States, Parliamentary supremacy has permitted statutory law to be developed that extinguishes the historical common law right to have arms for self defense. Similarly, in the United States, the courts have widely allowed local jurisdictions in some states (e.g., New York, Illinois, California, New Jersey) to license and regulate historical common law rights to have arms for self defense.

Canada

Main article: Canadian law

Canadian Bill of Rights, Part 1. Section 1. Paragraph (a) [4]

It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion, the following human rights and fundamental freedoms, namely, (a) the right of the individual to life, liberty, security of the person...

England, Wales and Northern Ireland

Further information: English law and Northern Ireland law

Although a right to have and use arms once existed in English law, this is no longer the case and has not been so for many decades. Some argue that a general right to bear arms has not existed for centuries. In any case, the modern legal situation is that the possession of firearms is effectively a privilege granted only to persons who can demonstated both a need and that they are sufficiently responsible.

The Bill of Rights of 1689 included the provision that "the subjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law." The words "as allowed by Law" indicate this was always a qualified rather than a universal right. However this provision, along with many other pieces of ancient law, is now effectively obsolete. The English Bill of Rights should not be equated to the United States Bill of Rights. In the United Kingdom, Parliament is the ultimate authority and legislation is not constrained by a central codified constitution like that of the United States, although the 1998 Human Rights Act is generally considered to have altered the situation slightly. Thus, over the years, Parliament has fundamentally changed the UK constitutional position. This includes very substantial restrictions on any right to bear arms.

Pistols, revolvers, rifles and ammunition were first controlled by the Firearms Act of 1920, which made it illegal to possess these weapons without first obtaining a certificate from the police. Similar provisions were introduced for shotguns in 1967.

The Firearms Act 1968 placed an absolute ban on certain types of weapons, including automatic or self-loading guns. Since then only the armed forces and police have any right to these types of arms. The Firearms Act 1982 extended the provision of the 1968 Act, including control of imitation firearms. The Firearms (Amendment) Act 1997 and Firearms (Amendment) (No. 2) Act 1997 introduced further very significant restrictions. This has led, in effect, to a total ban on private possession of pistols even for competitive sporting purposes. Small-bore rifles remain permitted for competition however.

The Anti-Social Behaviour Act 2003 has brought certain types of air weapons into the categories of control created by the firearms acts.

UK legislation often gives considerable powers to ministers to issue regulations that control the way the various acts are applied. In relation to firearms this power generally falls to the Home Secretary. The Home Office therefore has some control of the conditions under which firearms can be licensed. On a few occasions over the years permits have been granted to private individuals to keep firearms for personal protection, for example during "The Troubles" in Northern Ireland, however these are very limited and exceptional cases.

United States of America

The right to keep and bear arms did not originate fully-formed in the Bill of Rights in 1791; rather, the Second Amendment was the codification of the six centuries old responsibility to keep and bear arms for king and country that was inherited from the English Colonists that settled North America, tracing its origin back to the Assize of Arms of 1181 which occurred during the reign of Henry II. Through being codified in the United States Constitution, the common law right was continued and guaranteed for the People, and statutory law enacted subsequently by Congress cannot extinguish the pre-existing common law right to keep and bear arms.

This right is often presented in the United States as synonymous with the Second Amendment to the United States Constitution, although this belief is controversial among some factions and is not subscribed to by all.

• Second Amendment to the United States Constitution Protects the pre-existing right to keep and bear arms.

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.

• Ninth Amendment to the United States Constitution Provides for unenumerated rights, including implicitly a right to keep and bear arms and a right to have arms for defense.

Some have seen the Second Amendment as derivative of a common law right to keep and bear arms; Thomas B. McAffee & Michael J. Quinlan, writing in the North Carolina Law Review, March 1997, Page 781, have stated "... Madison did not invent the right to keep and bear arms when he drafted the Second Amendment--the right was pre-existing at both common law and in the early state constitutions." [5]

Akhil Reed Amar similarly notes in the Yale Law Journal, April 1992, Page 1193, the basis of Common Law for the first ten amendments of the U.S. Constitution, "following John Randolph Tucker's famous oral argument in the 1887 Chicago anarchist case, Spies v. Illinois":

Though originally the first ten Amendments were adopted as limitations on Federal power, yet in so far as they secure and recognize fundamental rights -- common law rights -- of the man, they make them privileges and immunities of the man as citizen of the United States...[6]

An individual or collective right?

The right to bear arms in United States is best understood as a collective and an individual right. In Federalist paper 46,[7]James Madison argued that the common citizen should be armed to counter the potential threat of a Federal Army during the negotiations and drafting of the Bill of Rights. During the negotiations some expressed a great deal of concern that the new Federal military could become a serious threat to liberty in the future. [8] He also contrasts the United States with the governments of Europe by loathing the prohibition of keeping arms in those nations “… Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.” James Madison

Madison is often regarded as the father of the Bill of Rights, though the Bill of Rights was a compromise achieved through negotiations during the First Congress of the United States.

Some believe the traditional definition is bolstered by the fact that the Second Amendment states that the "people" have a right to keep and bear arms. The phrase "the people" as it exists elsewhere in the Bill of Rights is not used to express the meaning of the state or the military. For instance, when the First Amendment speaks of the right of "people" to peaceably assemble and the right of the "people" to free speech, the Bill of Rights is speaking of individual rights not the rights of the state or government, which is why those who subscribe to textualism believe that so too does the right to keep and bear arms belong to the people, as no such distinction was made in the text of the Bill of Rights.

A state or individual right?

“Individual rights” proponents maintain that: The “state’s rights” view of bearing arms only became known in the late 20th century motivated by a desire for stricter gun control laws. Also that the right to bear arms is currently and has historically always been practiced as an individual right.

James Madison, a noted Federalist, makes clear his understanding that the power of bearing arms belongs to the people not the state: “… still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger.” States are forbidden in the U.S. Constitution from keeping troops independent from the Federal government but must rely on citizen militias for their defense.

Alexander Hamilton, in Federalist Paper #29 [9], states the importance of citizens bearing arms. Much of the debate in Federalist Paper #29 centers around how much power the government should have in regulating the militias. The Federalists position concluded that the state governments should have access to select, well-trained, militias so that the need to keep a standing army would be diminished. Today, the National Guard often serves much of this function. Federalists argued that at the same time, the whole body of citizenry (the unorganized militia) would be bearing arms to offset the concerns that even the state militias could become a danger to liberty. Anti-Federalists believed otherwise.

Hamilton concludes that “This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”

Ultimately, Federalists and Anti-Federalists negotiated their differences during the First Congress with the resulting compromise becoming the Bill of Rights.

Department of Justice, Office of Legal Counsel Memorandum Opinion, August 24, 2004

On August 24, 2004, the Department of Justice, Office of Legal Counsel wrote a Memorandum Opinion for the United States Attorney General. It stated, "The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias." [10]

Jurisdictions with Civil Law/Roman Law judicial origin

• Corpus Juris Civilis
• Civil law (legal system)
• Roman Law
• Socialist law

Cuba

Chapter 1, Article 3 of the Constitution of Cuba "... all citizens have the right to struggle through all means, including armed struggle..."

Mexico

"Article 10. The inhabitants of the United Mexican States are entitled to have arms of any kind in their possession for their protection and legitimate defense, except such as are expressly forbidden by law, or which the nation may reserve for the exclusive use of the Army, Navy, or National Guard; but they may not carry arms within inhabited places without complying with police regulations."[11]

Scotland

Main article: Scots law

Following the Dunblane Massacre, the Cullen Inquiry recommended tighter control of handgun ownership as well as other changes in school security and vetting of people working with children under 18.

Spain

Per section 149.26 of the Spanish Constitution "The State shall have exclusive competence over...the use of arms..."

Jurisdictions with Religious Law judicial origin

• Religious law
• Hindu law
• Sharia

References

Uviller, H. Richard (2002). The Militia and the Right to Arms. Duke University Press. ISBN 0-8223-3017-2. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)

See also

• Gun politics
• Second Amendment to the United States Constitution
• Gun politics in Australia
• Gun politics in Canada
• Gun politics in Finland
• Gun politics in Mexico
• Gun politics in Switzerland
• Gun politics in the United Kingdom
• Gun politics in the United States