Right to keep and bear arms
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. 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. 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 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.
The concept of the "right of the people to keep and bear arms" is derived from the English Bill of Rights 1689 which states:
- That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.
This must be read in the context of the grievance being addressed, which reads:
- By causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law.
The English Bill of Rights established that regulating the right to bear arms was one of the powers of Parliament, and did not belong to the monarch. In most common law jurisdictions, this right has since the early 20th century largely been abolished by statute, for example in the United Kingdom (in 1903, and Australia. In all jurisdictions, common law or otherwise, gun laws vary widely.
- 1 Australia
- 2 Canada
- 3 Chile
- 4 China
- 5 Cuba
- 6 Czech Republic
- 7 Finland
- 8 India
- 9 Israel
- 10 Japan
- 11 Mexico
- 12 North Korea
- 13 Pakistan
- 14 Spain
- 15 Switzerland
- 16 United Kingdom
- 17 United States
- 18 Yemen
- 19 See also
- 20 Notes and references
- 21 Further reading
As there is no right to own firearms that is recognized or upheld by the federal or state and territory governments of Australia, firearms are usually seized when an individual is charged with an offence (a court order is not required). The laws strictly forbid ownership for the purpose of self-defense however the use of a firearm in self-defense is based on the specific characteristics of the case and whether its use represented excessive force. Security Guards may possess weapons for the protection of property and Police for the purposes of public safety and can apply for the firearm to be kept at their residence, this is a separate permit/requirement to being able to use a firearm in the execution of their duties. Carrying Firearms on ones person or in a motor vehicle (if the weapon is being transported it must be rendered inoperative and be taken directly to and from where it is to be used) is illegal without a permit, however such permits are only issued relatively rarely ( e.g. Armoured Car Security) and have stringent qualification requirements. A genuine reason must be given when applying for a license to own a firearm, and several valid categories such as Sport, hunting or collecting are specified, giving self-defence as a reason is specifically prohibited by law in all states and territories. As with most other jurisdictions persons with criminal convictions cannot acquire a permit.
Historically, controls on firearm ownership have usually followed major crimes which resulted in public outcry. This resulted in an incoherent collection of regulations — following the fact that Australia is a federal country. Legality varied wildly between jurisdictions, approaching American latitudes in places like Queensland and Tasmania. The current licensing and permit regime was enacted following the Port Arthur massacre in Tasmania and has largely converged all jurisdictions to a similar standard. The present pressures on gun law legislation in Australia arise from organised-crime activity, particularly the drug trade. Australia has been an agrarian country for much of its history, and therefore there is a significant population of gun owners.
With the exception of Victoria all states and territories do not require a license to own swords, knifes, bayonets or any other type of blade (with the exception of push daggers). Folding knives are regulated on the mechanism type or on the manner of opening and is consistent throughout all states and territories, Automatic knives, OTF knives, Centripetal force, balisongs/butterfly knives, are prohibited. Assisted Opening knives were legal before a change in regulation post 2011 election and are now prohibited for import, and carry but may be kept in a private home/residence if the knife was imported pre-ban. The carrying of a blade (either folding or fixed, irrespective of length) in public is illegal unless the individual can give a lawful reason (or such reason is clearly evident) to police for why they have a blade, self-defence is not a lawful reason. If a reason can not be provided then the individual is usually arrested and is then given the opportunity to give a reason to the Judge/Magistrate who may dismiss the charge if such a reason is provided.
In Canada, gun ownership is allowed, regulated and many models of firearms are not available or are prohibited. Certain models are classified as prohibited firearms, as defined by the Firearms Act. Possession of a restricted firearm requires a Restricted Possession and Acquisition License or RPAL. An RPAL may be obtained at the same time as, or subsequent to, a PAL with additional testing and scrutiny by the Royal Canadian Mounted Police. An Authorization to Transport allows RPAL holders to transport their restricted firearms directly to and from gun ranges and gunsmiths or to a change of address.
Under certain circumstances, an Authorization to Carry may be issued, allowing one to carry a loaded restricted firearm on their person; however, these permits are rarely acquired by ordinary citizens. In 2002, only 6172 permits were issued across the entire country and over 94% were related to armoured vehicle protection and related services.
Citizens meeting certain requirements may legally acquire firearms that are not automatic or semi-automatic. The requirements for eligibility include obtaining a certification of mental health, having a fixed address, and having a secure storage method. Firearm owners also must agree that firearms that are legally acquired, along with the secure storage location, may be inspected at any time between the hours of 8 AM to 10 PM upon a request of the national police. It is illegal for citizens to acquire ammunition other than what is used in the specific firearms that are registered to them. Upon the death of a registered gun owner, the person responsible for the estate shall transfer the firearm(s) to a legally eligible and registered owner within 90 days, or else must turn in the firearm(s) to either the closest military facility or the closest national police station. In practice, single shot and double barrel shotguns, lever action rifles, and revolvers account for the majority of the registered civilian firearms owned by citizens, although any firearms that are not automatic or semi-automatic may be legally owned by citizens. Firearms may be used for legal hunting, outside of the home or business, or, within one's home or business, for legal defense.
According to PRC law, there are firearms regulations and according to those regulations "whoever, in violation of firearm-control regulations, secretly keeps firearms or ammunition and refuses to relinquish them shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention."
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."
There is no constitutional right to possess firearms in the Czech Republic. According to the Czech Constitutional court, the right to possess firearm is not a basic human right and it may not be derived from the right to own property guaranteed by the Art. 11(1) of the Charter of Fundamental Rights and Freedoms.
The right to have a gun license issued is provided for in the Act No. 119/2002 Coll. Subject to fulfillment of the act's conditions, anyone is entitled to have the license issued and may then obtain a firearm. Holders of D (exercise of profession) and E (self-defense) licenses, which are also shall-issue, may also freely carry a concealed firearm.
To possess firearms in Finland, citizens require a valid reason, such as recreation or exhibition, and must be licensed by local police. Permission may be denied if the citizen has a criminal background or a history of substance abuse or mental illness. The right to possess a firearm does not include the right to carry it in public, except while hunting. At home, firearms must be kept behind locks or inoperative. Knives and similar items may not be carried in public.
In India, purchase and possession of firearms requires a license and is a stringent process. The Arms Act of 1959 and the Arms Rules 1962 prohibits the sale, manufacturer, possession, acquisition, import, export and transport of firearms and ammunition unless under a license. Firearms are classified into two categories: Prohibited Bore (PB) and Non-Prohibited Bore (NPB), where semi-automatic and fully automatic firearms fall under the Prohibited Bore category. The criteria considered during the issue of NPB firearm permits are whether the person faces threats and for PB firearms is more strict.
According to the licensing service for a private carry permit, a permit may be issued to a legal resident over the age of 21, that is working or living in dangerous zones defined by the Ministry; an individual who works in specific professions listed by the Ministry or individuals who served in the Israeli Defense Force or other military agencies, at the rank of Captain or equivalent (currently serving in the standing army or reserves), retired officers at a rank of Lt. Colonel, or active reserve members of specific special forces units. The granting of a private weapon permit is neither an inherent statutory right nor automatically approved. An applicant is vetted medically and by the police, and even then the request can still be denied by the licensing officer, though a denial can be appealed.
With the exception of law enforcement and defense force personnel, ownership of handguns is prohibited in Japan. Exceptions are made for firearms with cultural/artistic value (i.e. museum pieces) and for class 4 air pistol competitors, such as Olympic athletes. For shotguns and rifles, there is a registration process which one must complete. These are to be used only for hunting and pest control purposes.
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."
Since 1917 Mexican citizens have had the right to possess firearms "except those expressly prohibited by law". However after rioters looted gun stores in Mexico City in the 1960s, the Mexican government began to restrict wholesale gun ownership. By 1995, the government had closed the last private gun stores and given the military a monopoly on gun sales.
The country now only has one official gun store, the "Directorate for Arms and Munitions Sales" in Mexico City. Located near the army's main headquarters, the two-room building is heavily guarded. All Mexican citizens who wish legally possess firearms must abide by regulations and limitations in order to make a weapons purchase at the store. They are as follows:
- Prospective customers need a permit from the army that can take up to several months to receive.
- Limited amounts of ammunition they can buy each month
- Where an individual can take the gun
- Who gun owners can sell it to
- All privately owned guns must be registered with the Mexican military
- If Owners want to transport their firearms outside their homes they must obtain a permit that must be renewed annually.
Owning a gun
Gun control laws in Mexico are extremely strict in comparison to the United States, making it difficult for the average citizen to purchase anything larger than a .22 caliber. Article 11 (of the Mexican Constitution) " Ley Federal de Armas de Fuego y Explosivos" lists prohibited "military firearms" in Mexico. They include:
- Anything full-auto.
- Any semi-auto handgun larger than .380 (e.g., 9mm, .38 Super, or larger).
- Any revolver in .357 Magnum or larger.
- Any rifle in larger than .30 caliber.
- Any shotgun larger than 12 gauge or with a barrel shorter than 25 inches.
Mexico's constitution has a right to keep and bear arms for its citizens:
- Members of hunting clubs may be able to acquire hunting guns of a non-prohibited caliber.
- All applications must go through the single national gun store in Mexico City for approval. Approval will be denied once you own more than 2 handguns or 10 long guns.
- Carry permits exist for outside of your home, but are rarely granted.
- Mexican citizens and immigrants can have firearms in their homes, and only of permitted firearms. The privilege of carrying a firearm outside of one's home is limited to what is authorized by Mexican federal law.
- All privately owned firearms are registered with the Mexican army.
Mexico's gun laws are very restrictive, and extremely harsh if you do not follow them. Where there are prohibitions, there are penalties. The penalties for possession of prohibited "military firearms" include: 3–12 months in prison for bayonets, sabers and lances, 1–7 years for .357 magnum revolvers and any revolver larger than a .38 Special, and 2–12 years for other prohibited weapons.
These are the possible legal consequences of being convicted of possessing illegal firearms in Mexico:
- Jail time and vehicle seizure.
- Separation from your family, friends, and your job, and likely substantial financial hardship.
- Court costs and other fees ranging into the tens of thousands of dollars on legal defense.
- A 30-year sentence in prison if found guilty.
The consequences of possessing a knife on your person in Mexico, even a pocketknife are:
- A criminal charge with possession of a deadly weapon.
- Weeks could be spent in jail waiting for trial, and if convicted, one may be sentenced to up to five years in prison.
- Tens of thousands of dollars in attorney's fees, court costs, and fines.
The right to keep and bear arms is explicitly rejected by the national constitution. Instead, the state is exclusively charged with "protecting and fortifying" the country.
Chapter IV, Article 60 of the Socialist Constitution of the Democratic People's Republic of Korea (North Korea):
"The State shall implement the line of self-reliant defence, the import of which is to arm the entire people, fortify the country, train the army into a cadre army and modernize the army on the basis of equipping the army and the people politically and ideologically."
Under Sharia law, there is an intrinsic freedom to own arms. However, in times of civil strife or internal violence, this right can be temporarily suspended to keep peace and prevent harm, as mentioned by Imam ash-Shatibi in his works on Maqasid ash-Shari'ah (The Intents and Purposes of Shari'ah) Citizens not practicing Islam are prohibited from bearing arms and are required to be protected by the Islamic State's Military, the state for which they pay the jizyah. In exchange they do not need to pay the zakat.
Per section 149.26 of the Spanish Constitution "The State shall have exclusive competence over ... the regime for the production, trading, holding and use of weapons"
In practice, there is a tight regime over firearms which are regulated by law and administered by the Intervención de Armas unit of the Guardia Civil. The law requires every person carrying or having possession of a firearm to have a licence issued by the Civil Guard Authority. There are separate licence categories for officers of the state (e.g., the armed forces, the police and customs officers), personal use, security guards, game hunters large and small, for collectors, sports users and for minors participating in sports. Licences usually are issued for a limited period and are restrictive regarding the class of weapon that may be held.
Although the Swiss do not have a constitutional right to bear arms, 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 service obligation. However while there is no constitutional right to bear arms, gun ownership in Switzerland is protected under the 1997 Arms Act contrary to popular belief. Up 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. Since January 2010, they have the option of depositing their personal firearm at a government arsenal. Up until September 2007, soldiers received 50 rounds of government-issued ammunition in a sealed box for storage at home.
Switzerland may have one of the highest personal gun ownership rates in the world. It has an overall low crime rate by European standards, but it has one of the highest rates of gun homicide, and the highest gun suicide rate in Europe. However Switzerland also has one of the world's lowest overall homicide rates, a rate considerably lower than the European average.
Swiss gun laws are considered to be restrictive. Owners are legally responsible for third party access and usage of their weapons. Licensure is similar to other Germanic countries. In a referendum in February 2011 voters rejected a citizens' initiative which would have obliged armed services members to store their rifles and pistols on military compounds, rather than keep them at home, and required that privately owned firearms be registered.
Until recently, English statute was not concerned with absolute rights and rights that were recognized in law, such as the right to life have traditionally been part of the common law. 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. The right to bear arms was not specifically made legal until the Bill of Rights 1689. The first serious control on firearms after this was not made until the passing of the Pistols Act 1903 more than 200 years later.
Modern-day possession of guns operates as follows: everything that isn't prohibited under section 5 of the Firearms Act 1968 must be held on a section 1 firearms certificate, unless it is a section 2 shotgun and can thus go on a Shot Gun Certificate. The requirements for a firearms certificate are more demanding than that of a Shot Gun Certificate.
Police officers in Great Britain do not routinely carry firearms but do typically carry a baton and/or pepper spray. In recent years Tasers have controversially been deployed against citizens, occasionally in error. Police that do carry firearms regularly are typically those guarding national ports of entry, those engaged with diplomatic security, Royal Protection officers, the Civil Nuclear Constabulary or officers of the Police Service of Northern Ireland. Police officers carrying semi-automatic rifles were employed across London during the 2012 Olympics as a deterrent to terrorism and can occasionally be seen year-round at major London rail stations and other areas of high public concentration.
The Prevention of Crime Act 1953 prohibited the carrying of an offensive weapon without lawful authority or reasonable excuse. This is defined as any article made or adapted for use to causing injury to the person, or intended by the person having it with him for such use. The law covers not just firearms but also knives. A person cannot merely carry a knife around with him for self-defence as the courts do not regard this as reasonable excuse. Since 1972, in the Queens Bench court case Evans v. Hughes, the threat has to be believed to be real and imminent. A person with fishing tackle and carrying a knife or on a camping expedition would have a reasonable excuse for carrying a knife. Non locking, folding knives with a blade under 3 inches, may be carried freely without "reasonable excuse", however the police and courts regard them as an offensive weapon if used as such. It was not considered a "reasonable excuse" to carry a weapon for self-defence, unless his job carried a high risk of being attacked by criminals such as people carrying money to a bank, security guards and certain people who worked for the government. Since 1973, security guards and others are not allowed to carry truncheons and other weapons as part of their duties and only police are allowed to carry weapons.
Pistols with barrels shorter than 9 inches were first controlled by the 1903 Pistols Act, which placed hurdles in the path of those who were not householders. Pistols, revolvers, rifles and ammunition, but not shotguns, were much more tightly controlled by the Firearms Act of 1920, which made it illegal to possess these weapons without first obtaining a certificate from the police and registering each individual firearm. Less stringent provisions were introduced for shotguns in 1967.
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 certificates can be issued. On a few occasions over the years, permits have been granted to private individuals to keep firearms for personal protection, however these are very limited and exceptional cases.
The Firearms Acts 1936/7 placed additional controls on fully automatic firearms, effectively restricting them to the armed forces and police. The Criminal Justice Act 1967 was passed which introduced Shotgun Certificates. The act was at least in part a response to the murder by criminals of three policemen the previous year, though this had been committed with handguns. The Firearms Act 1968 introduced the concept of compulsory security for rifles and pistols and incorporated the Shotgun Certificate first outlined in the Criminal Justice Act 1967. The Firearms Act 1982 extended the provision of the 1968 Act, including control of imitation firearms. The Hungerford killings in 1987 was followed by the Firearms Act 1988 which banned centre-fire self-loading and pump action rifles and extended compulsory security to shotguns. The Dunblane massacre in Scotland in 1996 was followed by the Firearms (Amendment) Act 1997, which effectively banned all but .22 pistols; and then, after the Labour government led by Tony Blair came into power, the Firearms (Amendment) (No.2) Act 1997 was introduced, which effectively banned the private possession of all modern pistols, even for competitive sporting purposes. Rifles are not limited to smallbore, or to competition use and numerous types of rifles, shotguns and black-powder pistols and longarms, may be owned privately. 
The Crown Prosecution Service has published a summary of the laws regarding firearms in England and Wales.
The following laws apply to the controlled use of knives in the UK; possession of an offensive weapon in a public place (section 1 Prevention of Crime Act 1953); the possession of a bladed or pointed article in a public place (Section 139 Criminal Justice Act 1988); trading in flick or gravity knives (restricted under the Offensive Weapons Act 1959), the unlawful marketing of combat knives and publishing adverts for combat knives and using someone to mind a weapon (Violent Crime Reduction Act VCRA 2006). The police have powers of entry, seizure, retention and forfeiture (The Knives Act 1997). School staff members have powers to search school students and others (VCRA s.45, 46 and 47 & S550aa of the Education Act 1996). Senior police officers can authorise constables to stop and search persons in a specific area either where a serious public order problem is likely to arise, or look for offensive weapons or dangerous instruments (S60 Criminal Justice and Public Order Act 1994).
The Crown Prosecution Service has published a summary of the laws regarding knives in England and Wales.
The Firearms Act 1968 also forbids the use of "any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing" by the public. This, for example, covers pepper spray, ammonia, CS gas, and electric shock armaments such as the Taser and Stun gun.
In the United States, with a common law tradition and a constitution dating to the 18th century, the "right to keep and bear arms" has been enshrined in the Second Amendment to the Constitution of the United States, with the text :
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.
United States Citizens have the right to possess firearms, except for convicted felons and those found mentally disabled. Citizens may carry a handgun or other weapon in public in a concealed or open manner, either on one's person or in proximity. Some jurisdictions may require a "Concealed carry" permit, for concealed carry, however most jurisdictions do not require a permit for open carry, if allowed. A small number of states and localities may require licenses to own or purchase guns and ammunition.
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. Many English common law traditions were enshrined in the US 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.
The Second Amendment was heavily influenced by the English Bill of Rights 1689, which restricted the right of the English Crown to interfere with the personal right to bear arms. The 1689 Bill of Rights restricted the right of the monarch to have a standing army and to interfere with the personal right to bear arms. It did not create a new right to have arms, but instead rescinded and deplored acts of the deposed King James II which extended the right to Catholics and Protestant dissenters in addition to upholding prior legislation that limited the ownership of arms to certain social classes. The English Bill of Rights firmly established that regulating the right to bear arms was one of the powers of Parliament, and did not belong to the monarch.
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 conceded that the right was subject to their suitability and allowance by law.
- Gun politics in the United Kingdom
- Gun politics in the United States
- One handgun a month law
- Overview of gun laws by nation
- Right of self-defense
- Uniform Firearms Act
Notes and references
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- Young, David E., The Founders' View of the Right to Bear Arms, p.222.
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- 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.