Right to keep and bear arms

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For other uses, see Bear arms (disambiguation), Right to keep and bear arms in the United States, and Overview of gun laws by nation.

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 arma (neuter pl.), meaning weapons and/or armour 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]

In Old English,"beran" (past tense bær) means to bear, bring; bring forth, produce; to endure, sustain; to wear.[8]

Since the initial use of this term in the 1600s, armament technology has evolved and advanced.[9] 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.[9] Since the 19th, 20th, and 21st centuries firearms have come to the forefront of this concept.[10]

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]

See also: Gun politics in Mexico

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."[11]

United States[edit]

Main article: Right to keep and bear arms in the United States

In the United States, with an English common law tradition, a long-standing common law right to keep and bear arms has been recognized as existing prior even to the creation of a written national constitution.[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 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.[15]

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.[16] 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. The common law of England is still the rule of decision, except where it conflicts with the U.S. or State constitution, or acts of the U.S. Congress or state legislatures, in 49 of the 50 U.S. states, except Louisiana. [17]

Europe[edit]

United Kingdom[edit]

See also: Gun politics in the United Kingdom

The right to keep and bear arms is no longer legally or constitutionally protected In the United Kingdom.[18] There existed a guarantee of the right to keep and bear arms for self-protection in English common law but the possession of arms is now restrictively and legally controlled by the government, with most[citation needed] handguns, and automatic and most[citation needed] semi-automatic weapons being illegal to possess without special provision.[18][19]

The right to bear arms was not specifically protected until the Bill of Rights 1689, but then 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]

Since the 1950s it has been a criminal offense to carry a knife or any other weapon in a public place without good reason.[21]

Switzerland[edit]

Further information: Gun politics in Switzerland

Switzerland has a statutory right to bear arms under Article 3 of the 1997 Weapons Act.[22][23][24] 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.[25] 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.[26] Since January 2010, they have the option of depositing their personal firearm at a government arsenal.[27] Up until September 2007, soldiers received 50 rounds of government-issued ammunition in a sealed box for storage at home.[28] Switzerland may have one of the highest personal gun ownership rates in the world.[29] 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.[30][31] However Switzerland also has one of the world's lowest overall homicide rates, a rate considerably lower than the European average.[32] Swiss gun laws are considered to be restrictive.[33] Owners are legally responsible for third party access and usage of their weapons. Licensure is similar to other Germanic countries.[34] 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.[31]

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. ^ "Bear (v.)". Online Etymology Dictionary. Douglas Harper. Retrieved 12 March 2015. 
  9. ^ a b Marshall, Michael. "Timeline: Weapons technology". New Scientist. Retrieved 11 May 2014. 
  10. ^ Spitzer, Robert J. (2012). "Policy Definition and Gun Control". The Politics of Gun Control. Boulder, Colorado: Paradigm. ISBN 9781594519871. OCLC 714715262. 
  11. ^ "Mexican Constitution (As amended)" (PDF). pp. Article 10. Retrieved 2009-07-30. 
  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. ^ US Constitution at Cornell Law School Legal Information Institute
  16. ^ 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. 
  17. ^ 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]
  18. ^ a b 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. 
  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. 
  21. ^ Knife legislation § United_Kingdom
  22. ^ http://www.loc.gov/law/help/firearms-control/switzerland.php#f3
  23. ^ http://www.poa-iss.org/CASACountryProfile/NationalLegislation/1@Swiss-Weapons-Act-.fr.pdf
  24. ^ http://www.gunpolicy.org/firearms/citation/quotes/1535
  25. ^ The Swiss Army at Europeforvisitors.com.
  26. ^ Lott, John R. (October 2, 2003). "Swiss Miss". National Review. Retrieved March 17, 2010. 
  27. ^ "Hinterlegung der persönlichen Waffe". Logistikbasis der Armee, Eidgenössisches Departement für Verteidigung, Bevölkerungsschutz und Sport. Retrieved 4 May 2013. 
  28. ^ "Gun laws under fire after latest shooting". Swissinfo. 27 November 2007. 
  29. ^ "Estimating Civilian Owned Firearms" (Press release). Small Arms Survey. September 2011. Retrieved January 27, 2013. 
  30. ^ "De-Quilling the Porcupine: Swiss Mull Tighter Gun Laws". Retrieved 2008-01-22. 
  31. ^ a b "Switzerland rejects tighter gun controls". BBC News Online. 13 February 2011. 
  32. ^ http://data.un.org/Data.aspx?d=UNODC&f=tableCode%3a1%3bCountryUNNumCode%3a756&c=2,3,5,6,8,10&s=countryName:asc,yr:desc&v=1
  33. ^ "Switzerland — Gun Facts, Figures and the Law". International Firearms Injury Prevention & Policy. 27 June 2012. Retrieved 15 January 2013. 
  34. ^ "Bundesgesetz vom 20. Juni 1997 über Waffen, Waffenzubehör und Munition (Waffengesetz, WG)". Swissinfo. 20 June 1997. Retrieved 17 March 2010. 

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. 
Substantive human rights
Note: What is considered a human right is controversial and not all the topics listed are universally accepted as human rights.
Civil and political
Sexual and reproductive
Violations
War and conflict
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