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 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.[1]

Inclusion of this right in a written constitution is unusual. In 1875, 17 percent of constitutions included a right to bear arms, yet, since the early twentieth century, "the proportion has been less than 10 percent and falling".[2] In their historical survey and comparative analysis of constitutions dating back to 1789,[2] Tom Ginsburg and colleagues "identified only 15 constitutions (in nine countries) that had ever included an explicit right to bear arms. Almost all of these constitutions have been in Latin America, and most were from the 19th century".[3]

Generally, where modern constitutions refer to arms at all, the purpose is "to allow the government to regulate their use or to compel military service, not to provide a right to bear them".[2] Aside from that of the United States of America, other constitutions which historically guaranteed a right to bear arms are those of Bolivia, Colombia, Costa Rica, Guatemala, Honduras, Liberia, Mexico, and Nicaragua.[4] Nearly all of these were modelled on that of the United States.[3] At present, out of the world’s nearly 200 constitutions, three still include a right to bear arms: Guatemala, Mexico, and the United States; of these three, only the last does not include explicit restrictive conditions.[2]

Background[edit]

The Bill of Rights 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" and established that Parliament, not the Crown, could regulate the right to bear arms.[5][6]

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" subject to suitability and allowance by law.[7]

The term arms is derived from the Latin arma (neuter plural), meaning weapons and/or armor, and armare, which means to equip.[8] Originally used in the 1600s, the term refers to the process of equipping for war.[9] It is commonly used as a synonym for weapon.[10] 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.[citation needed]

In Old English, beran (past tense bær) means to bear, bring, bring forth, or produce; to endure or sustain; or to wear.[11]

Since the initial use of the term in the 1300s, arms have evolved and advanced.[12] In the 17th century, firearms were relatively new devices for warfare or practical uses such as hunting, and swords, spears, and other manual weapons were more prevalent until the 18th century.[12] In the 19th and 20th centuries, firearms came to the forefront of the concept of the right to keep and bear arms.[13]

Americas[edit]

Guatemala[edit]

Gun rights in Guatemala have changed over time. In the current constitution, residents have the right to own and use firearms in their homes, which can be forfeited only by judicial order.[14]

Mexico[edit]

See also: Gun politics in Mexico

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.[15]

United States[edit]

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

In the United States, which has an English common law tradition, a longstanding right to keep and bear arms was recognized prior to the creation of a written national constitution.[16] Today, the right is specifically protected by the US Constitution and many state constitutions,[17] 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.[18] 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.[19]

Convicted felons, persons adjudicated as mentally ill, and some others are prohibited from possessing firearms and ammunition in the US. In most states, residents may carry a handgun or other weapon in public in a concealed or open manner on one's person or in proximity, but that is restricted by some states and many cities. 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 or even allow the ownership and use of weapons taxed by the NFA.

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.[20] 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 US 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 if it conflicts with the US Constitution, state constitutions, or acts of Congress or state legislatures, in every state except Louisiana.[21]

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.[22] The right to keep and bear arms for self-protection was included in English common law, but today, most[citation needed] handguns, automatic, and semi-automatic weapons are illegal to possess without special provision.[22][23]

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.[24]

Since 1953, it has been a criminal offence in the United Kingdom to carry a knife or any other weapon in a public place without lawful authority or reasonable excuse.[25]

Switzerland[edit]

Further information: Gun politics in Switzerland

The Swiss have a statutory right to bear arms under Article 3 of the 1997 Weapons Act.[26][27][28] 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.[29] 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.[30] Since January 2010, they have had the option of depositing their personal firearm at a government arsenal.[31] Until September 2007, soldiers received 50 rounds of government-issued ammunition in a sealed box for storage at home.[32]

Switzerland is estimated to have one of the highest personal gun ownership rates in the world.[33] 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.[34][35] However, it also has one of the world's lowest overall homicide rates, considerably lower than the European average.[36]

Swiss gun laws are considered restrictive.[37] Owners are legally responsible for third-party access to and usage of their weapons. Licensing procedures are similar to those in other Germanic countries.[38] 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.[35]

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. ^ a b c d Ginsburg, Tom; Elkins, Zachary; Melton, James (7 Mar 2013). "U.S. Gun Rights Are Truly American Exceptionalism". Bloomberg. Retrieved 25 Mar 2016. 
  3. ^ a b Elkins, Zachary (4 Apr 2013). "Rewrite the Second Amendment". New York Times. Retrieved 29 Mar 2016. 
  4. ^ Ginsburg, Tom; Elkins, Zachary; Melton, James (2016). "Data Visualizations—Right to Bear Arms". CCP: Comparative Constitutions Project. Retrieved 2016. 
  5. ^ "1688 c.2 1 Will. and Mar. Sess. 2". The National Archives (UK). Retrieved July 2, 2014. 
  6. ^ "BBC: Bill of Rights Act, 1689 - The Glorious Revolution". bbc.co.uk. BBC. 2002. Retrieved July 2, 2014. 
  7. ^ "Blackstone's Commentaries on the Laws of England". Avalon.law.yale.edu. Retrieved 2012-05-22. 
  8. ^ "Collins English Dictionary - Complete & Unabridged 10th Edition". Dictionary.com. Dictionary.com2015. Retrieved 12 March 2015. 
  9. ^ Harper, Douglas Harper. "arm (n.)". Online Etymology Dictionary. Douglas Harper. Retrieved 12 March 2015. 
  10. ^ "Arm". Thefreedictionary.com. Retrieved 12 March 2015. 
  11. ^ "Bear (v.)". Online Etymology Dictionary. Douglas Harper. Retrieved 12 March 2015. 
  12. ^ a b Marshall, Michael. "Timeline: Weapons technology". New Scientist. Retrieved 11 May 2014. 
  13. ^ Spitzer, Robert J. (2012). "Policy Definition and Gun Control". The Politics of Gun Control. Boulder, Colorado: Paradigm. ISBN 9781594519871. OCLC 714715262. 
  14. ^ http://www.bloombergview.com/articles/2013-03-07/u-s-gun-rights-truly-are-american-exceptionalism
  15. ^ "Mexican Constitution (As amended)" (PDF). pp. Article 10. Retrieved 2009-07-30. 
  16. ^ 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. 
  17. ^ Volokh, Eugene (2008). "State Constitutional Right to Keep and Bear Arms Provisions". law.ucla.edu. 
  18. ^ Wills, Garry (September 21, 1995). "To Keep and Bear Arms". The New York Review of Books (Book review) (NYREV). Retrieved 3 July 2014. 
  19. ^ US Constitution at Cornell Law School Legal Information Institute
  20. ^ 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. 
  21. ^ 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]
  22. ^ 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. 
  23. ^ 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. 
  24. ^ John Pate (1903-08-11). "Dunblane Massacre Resource Page — Pistols Act, 1903". Dvc.org.uk. Retrieved 2012-05-22. 
  25. ^ Knife legislation § United_Kingdom
  26. ^ http://www.loc.gov/law/help/firearms-control/switzerland.php#f3
  27. ^ http://www.poa-iss.org/CASACountryProfile/NationalLegislation/1@Swiss-Weapons-Act-.fr.pdf
  28. ^ http://www.gunpolicy.org/firearms/citation/quotes/1535
  29. ^ The Swiss Army at Europeforvisitors.com.
  30. ^ Lott, John R. (October 2, 2003). "Swiss Miss". National Review. Retrieved March 17, 2010. 
  31. ^ "Hinterlegung der persönlichen Waffe". Logistikbasis der Armee, Eidgenössisches Departement für Verteidigung, Bevölkerungsschutz und Sport. Retrieved 4 May 2013. 
  32. ^ "Gun laws under fire after latest shooting". Swissinfo. 27 November 2007. 
  33. ^ "Estimating Civilian Owned Firearms" (Press release). Small Arms Survey. September 2011. Retrieved January 27, 2013. 
  34. ^ "De-Quilling the Porcupine: Swiss Mull Tighter Gun Laws". Retrieved 2008-01-22. 
  35. ^ a b "Switzerland rejects tighter gun controls". BBC News Online. 13 February 2011. 
  36. ^ 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
  37. ^ "Switzerland — Gun Facts, Figures and the Law". International Firearms Injury Prevention & Policy. 27 June 2012. Retrieved 15 January 2013. 
  38. ^ "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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