Right to keep and bear arms

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The right to keep and bear arms (often referred to as the right to bear arms or to have arms) is the people's right to have their own arms for their defense as described in the philosophical and political writings of Aristotle, Cicero, John Locke, Machiavelli, the English Whigs and others.[1]

Background[edit]

Main article: Bill of Rights 1689

The Bill of Rights Act, 1689 allowed for Protestant citizenry to "have Arms for their Defence suitable to their Conditions and as allowed by Law ," and restricted the right 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." It also established that regulating the right to bear arms was one of the powers of Parliament and not of the monarch.[2][3]

Sir William Blackstone wrote in the eighteenth century about the right to have arms being auxiliary to the "natural right of resistance and self-preservation," but subject to suitability and allowance by law.[4]

The term, "arms" is derived from the Latin term armamenta (neuter pl.), meaning utensils and armare, which means to equip.[5] Originally used in the 1600s, the term refers to the process of equipping for war.[6] The term "arms" is commonly used as a synonym for weapon.[7] Use of these arms with regard to the right to keep and bear arms is predicated on the concepts of the right of self-defense, defence of property, and defense of state.[citation needed]

The term bear is derived from the Latin combination word fer, which was typically used to form compound words, thus gaining the definition of "that which carries"[8] In Old English,"beran" (past tense bær) means to bear, bring; bring forth, produce; to endure, sustain; to wear.[9]

Since the initial use of this term in the 1600s, armament technology has evolved and advanced.[10] By the 17th century, firearm technology was a relatively new device for warfare or practical use such as hunting. Swords, spears, and other manual devices were more prevalent until the 18th century.[10] Since the 19th, 20th, and 21st centuries firearms have come to the forefront of this concept.[11]

In countries with an English common law tradition, a long-standing common law right to keep and bear arms has long been recognized, as pre-existing in common law, prior even to the existence of written national constitutions.[12] In the United States, the right to keep and bear arms is also an enumerated right specifically protected by the U.S. Constitution and many state constitutions[13] such that people have a personal right to own arms for individual use, and a right to bear these same arms both for personal protection and for use in a militia.[14] The carrying of arms in public can be categorized as open carry and concealed carry, and it is a separate topic of laws and regulations beyond ownership alone.

Americas[edit]

Cuba[edit]

Chapter 1, Article 3 of the Constitution of Cuba states the following: "When no other recourse is possible, all citizens have the right to struggle through all means, including armed struggle, against anyone who tries to overthrow the political, social and economic order established in this Constitution."

Mexico[edit]

Article 10 of Mexican Constitution of 1917 states the following:

"Article 10. 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."[15]

United States[edit]

The right to keep and bear arms is codified in the Second Amendment to the United States 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.[16]

Convicted felons, persons adjudicated as mentally defective, and some others are prohibited from possessing firearms and ammunition in the U.S. In most states, residents may carry a handgun or other weapon in public in a concealed or open manner, either on one's person or in proximity, however many states and cities restrict this. Some jurisdictions require a permit for concealed carry, but most jurisdictions do not require a permit for open carry, if 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 by state.

Precursory legal wording can also be found in the Pennsylvania Constitution of 1776. Following the American Revolution in 1776, 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 English law.[17] Many English common law traditions were enumerated in the U.S. Constitution, such as the right to keep and bear arms, habeas corpus, jury trials, and various other civil liberties. Significant principles of English common law prior to 1776 still remain in effect in many jurisdictions in the United States.[18]

United Kingdom[edit]

There is an English common law right to keep and bear arms for self-protection but the possession of certain arms is controlled for the common good.[19] The right to bear arms was not specifically made legal until the Bill of Rights 1689, but specifically only for Protestants. The first serious control on firearms after this was not made until the passing of the Firearms Act 1920 more than 200 years later.[20]

See also[edit]

Notes and references[edit]

  1. ^ Halbrook, Stephen P. (1994). That Every Man Be Armed: The Evolution of a Constitutional Right (Independent Studies in Political Economy). Oakland, CA: The Independent Institute. p. 8. ISBN 0-945999-38-0. OCLC 30659789. 
  2. ^ "1688 c.2 1 Will. and Mar. Sess. 2". The National Archives (UK). Retrieved July 2, 2014. 
  3. ^ "BBC: Bill of Rights Act, 1689 - The Glorious Revolution". bbc.co.uk. BBC. 2002. Retrieved July 2, 2014. 
  4. ^ "Blackstone's Commentaries on the Laws of England". Avalon.law.yale.edu. Retrieved 2012-05-22. 
  5. ^ "Collins English Dictionary - Complete & Unabridged 10th Edition". Dictionary.com. Dictionary.com2015. Retrieved 12 March 2015. 
  6. ^ Harper, Douglas Harper. "armament (n.)". Online Etymology Dictionary. Douglas Harper. Retrieved 12 March 2015. 
  7. ^ "Armament". Thefreedictionary.com. Retrieved 12 March 2015. 
  8. ^ "-fer". Dictionary.com Unabridged. Based on the Random House Dictionary. Retrieved 12 March 2015. 
  9. ^ "Bear (v.)". Online Etymology Dictionary. Douglas Harper. Retrieved 12 March 2015. 
  10. ^ a b Marshall, Michael. "Timeline: Weapons technology". New Scientist. Retrieved 11 May 2014. 
  11. ^ Spitzer, Robert J. (2012). "Policy Definition and Gun Control". The Politics of Gun Control. Boulder, Colorado: Paradigm. ISBN 9781594519871. OCLC 714715262. 
  12. ^ McAffee, Thomas B.; Quinlan, Michael J. (1997). "Bringing Forward The Right To Keep And Bear Arms: Do Text, History, or Precedent Stand In The Way?". Scholarly Works. Paper 512. 
  13. ^ Volokh, Eugene (2008). "State Constitutional Right to Keep and Bear Arms Provisions". law.ucla.edu. 
  14. ^ Wills, Garry (September 21, 1995). "To Keep and Bear Arms". The New York Review of Books (Book review) (NYREV). Retrieved 3 July 2014. 
  15. ^ "Mexican Constitution (As amended)" (PDF). pp. Article 10. Retrieved 2009-07-30. 
  16. ^ US Constitution at Cornell Law School Legal Information Institute
  17. ^ Lammi, Glenn G.; Chang, James (December 17, 2004). "Michigan High Court Ruling Offers Positive Guidance on Challenges to Tort Reform Laws" (PDF). Legal Backgrounder (Washington Legal Foundation) 19 (46). Unknown ID:10563059. 
  18. ^ Milestones! 200 Years of American Law: Milestones in Our Legal History. By Jethro Koller Lieberman. Published by West, 1976. Original from the University of California. Digitized Jun 11, 2008. ISBN 0-19-519881-6, ISBN 978-0-19-519881-2, pg. 16 [1]
  19. ^ Kopel, David (1995). "It isn't about duck hunting: The British origins of the right to arms". Michigan Law Review (Michigan Law Review Association) (93): 1333–1362. Retrieved 7 April 2013. 
  20. ^ John Pate (1903-08-11). "Dunblane Massacre Resource Page — Pistols Act, 1903". Dvc.org.uk. Retrieved 2012-05-22. 

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.; Robert Merrill Muth, and Stephen P. Andres, 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.