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 possess arms for their own defense, as described in the philosophical and political writings of Aristotle, Cicero, John Locke, Machiavelli, the English Whigs and others.
The Bill of Rights Act of 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." It also established that regulating the right to bear arms was one of the powers of Parliament, not of the monarchy.
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," but subject to suitability and allowance by law.
The term arms is derived from the Latin arma (neuter pl.), meaning weapons and/or armor, and armare, which means to equip. Originally used in the 1600s, the term refers to the process of equipping for war. It is commonly used as a synonym for weapon. Use of these terms with regard to the right to keep and bear arms is predicated on the concepts of the right of self-defense, defense of property, and defense of state.
Since the initial use of the term in the 1600s, armament technology has evolved and advanced. In the 17th century, firearms were relatively new devices for warfare or practical uses such as hunting. Swords, spears, and other manual weapons were more prevalent until the 18th century. In the 19th and 20th centuries, firearms came to the forefront of the concept of the right to keep and bear arms.
In 1993, the Supreme Court of Canada found that "Canadians, unlike Americans, do not have a constitutional right to bear arms". In 2001, an Ontarian firearms dealer facing multiple charges of weapons violations argued that the Canadian Constitution included a right to bear arms. A trial court rejected the claim, and an appeals court upheld that rejection. On September 16, 2010, the Supreme Court refused to hear the case.
Chapter 1, Article 3 of the Constitution of Cuba states: "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."
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.
In the United States, which has an English common law tradition, a longstanding common-law right to keep and bear arms was recognized prior to the creation of a written national constitution. Today, this right is specifically protected by the United States Constitution and many state constitutions, 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. 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.
Convicted felons, persons adjudicated as mentally ill, 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, but some states and many cities restrict this. 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 and even allow the ownership and use of NFA weapons.
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. 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 U.S. 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 where it conflicts with the U.S. Constitution, state constitutions, or acts of Congress or state legislatures, in every state except Louisiana.
The right to keep and bear arms is no longer legally or constitutionally protected in the United Kingdom. The right to keep and bear arms for self-protection was included in English common law, but today, most handguns, automatic, and semi-automatic weapons are illegal to possess without special provision.
The right to bear arms was not specifically protected in the United Kingdom until the Bill of Rights of 1689, and then only for Protestants. The first serious control on firearms after this was not established until the passing of the Firearms Act of 1920, more than 200 years later.
Since the 1950s, it has been a criminal offense in the United Kingdom to carry a knife or any other weapon in a public place without good reason.
The Swiss have a statutory right to bear arms under Article 3 of the 1997 Weapons Act. 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. 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 had the option of depositing their personal firearm at a government arsenal. Until September 2007, soldiers received 50 rounds of government-issued ammunition in a sealed box for storage at home.
Switzerland is estimated to have one of the highest personal gun ownership rates in the world. While it has a low overall crime rate by European standards, it has one of the highest rates of gun homicide and the highest rate of gun suicide in Europe. However, it also has one of the world's lowest overall homicide rates, considerably lower than the European average.
Swiss gun laws are considered restrictive. Owners are legally responsible for third-party access to and usage of their weapons. Licensing procedures are similar to those in other Germanic countries. 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.
Notes and references
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- R. v. Montague, 2001 CanLII 51171 (ON S.C.).
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- Young, Jim (4 Oct 2010). "Ontario Court Confirms No Right to Bear Arms in Canada; Supreme Court Will Not Hear Appeal". Centre for Constitutional Studies/Centre d'études constitutionnelles. University of Alberta.
- "Mexican Constitution (As amended)" (PDF). pp. Article 10. Retrieved 2009-07-30.
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- Alpers, Philip, Marcus Wilson, Amélie Rossetti and Daniel Salinas (2015-04-29). "United Kingdom — Gun Facts, Figures and the Law — Gun regulation, Right to Possess Firearms". Sydney School of Public Health, The University of Sydney. Retrieved 2015-05-13.
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- 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.
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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.
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- Uviller, H. Richard; William G. Merkel (2002). The Militia and the Right to Arms. Duke University Press. ISBN 0-8223-3017-2.