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Right to bear arms
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The right to keep and bear arms, RKBA, or right to bear arms is the concept that people, individually or collectively, have a right to weapons and is often referenced in discussions of gun politics and gun violence.
right to keep and bear arms varies by country (see State (law)) and at times varies by jurisdiction within a sovereign state.
ll countries that derive their laws from English Common Law, with the exception of the United States, Parliamentary supremacy has permitted statutory law to be developed to restrict the right to have arms for self defense.
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Encyclopedia
The right to keep and bear arms, RKBA, or right to bear arms is the concept that people, individually or collectively, have a right to weapons and is often referenced in discussions of gun politics and gun violence.
Jurisdictions
The right to keep and bear arms varies by country (see State (law)) and at times varies by jurisdiction within a sovereign state.
Jurisdictions with English judicial origin
In all countries that derive their laws from English Common Law, with the exception of the United States, Parliamentary supremacy has permitted statutory law to be developed to restrict the right to have arms for self defense. In the United States many rights, including the right to keep and bear arms, are codified in the constitution that by design is extremely difficult to modify.
An historic duty of some to keep and bear arms in England predates the invention of firearms, arising during the reign of Henry II, who promulgated the Assize of Arms in 1181, which required knights and freemen to keep arms and to bear them in service of the king.
The English Bill of Rights 1689 set out an individual right of Protestant Englishmen to have arms suitable for their own defense, regardless of their social and economic station, though this was done to mostly to restrict the right of Catholics. This was because of the fear the Protestants had in England of being disarmed that led to the Glorious Revolution and subsequently their guaranteed right to self-defense. The article in the bill covering the right of protestant subjects to bear arms is now considered to be obsolete, having been superseded by subsequent
legislation, which is common practice in English constitutional law.
William Blackstone wrote in the eighteenth century, at a time when there was no police or forces of law enforcement, about the right to have arms being a "natural right of resistance and self-preservation", but conceded that the right was subject to their suitablility and allowance by law.
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.
"Arms" refers to a variety of weapons and armor. For example, in the United States, the term has been used to refer to edged weapons such as the bayonet and sabre.
United Kingdom
English law and Scots law do not in general talk about rights. Modern law exists only to curtail certain actions which are deemed illegal for the common good. Thus, although there was once an English common law right to keep and bear arms (because no law forbade it), this is no longer the case and has not been so for many decades. The modern legal situation is that the possession of firearms is effectively a privilege granted only to persons who can demonstrate both a need and that they are sufficiently responsible.
Privisions in the Bill of Rights of 1689 (and the similar Claim of Right in Scotland) regarding rights to arms have been overruled by the doctrine of implied repeal and the principle of parliamentary sovereignty.
General
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 will not regard this as reasonable excuse. 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.
Firearms
Pistols, revolvers, rifles and ammunition were first controlled by the Firearms Act of 1920, which made it illegal to possess these weapons without first obtaining a certificate from the police. Similar 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 can be licensed. 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 Act 1968 placed an absolute ban on certain types of weapons, including automatic or self-loading guns. Since then only the armed forces and police have had access to these types of arms. The Firearms Act 1982 extended the provision of the 1968 Act, including control of imitation firearms. The Firearms (Amendment) Act 1997 was followed by the Dunblane Massacre in Scotland, in which 17 people were shot and killed by a lone gunman led to the passing of and Firearms (Amendment) (No. 2) Act 1997 which introduced further very significant restrictions. This has led, in effect, to a total ban on private possession of pistols even for competitive sporting purposes. Small-bore rifles remain permitted for competition however.
The Anti-Social Behaviour Act 2003 has brought certain types of air weapons into the categories of control created by the firearms acts.
The Crown Prosecution Service has published a summary of the laws regarding firearms in England and Wales.
Knives
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 entry, seizure, retention and forfeiture(The Knives Act 1997). School staffs have powers to search school students and others (VCRA s.45, 46 and 47). 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.
The Crown Prosecution Service has published a summary of the laws regarding firearms in England and Wales.
Others
Thr 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." This for example covers pepper spray, ammonia, CS gas, and electric shock armaments such as the Taser.
United States
In the United States, the right to keep and bear arms is often presented in the context of military service and the broader right of self defense. Whether this right pertains to individuals acting independently or individuals acting collectively was once a matter of debate, and the basis for any right at all hotly contested. However, on June 26, 2008, the Supreme Court of the United States held that Americans have an individual right to keep and bear arms for self-defense in the case District of Columbia v. Heller.
Civilian usage meaning
The people's right to have their own arms for their defense is described in the philosophical and political writings of Aristotle, Cicero, John Locke, Machiavelli, the English Whigs and others. Though possessing arms appears to be distinct from "bearing" them, the possession of arms is recognized as necessary for and a logical precursor to the bearing of arms. Particularly in the event of oppression or slaughter of people by governments or racial majorities, researchers have noted that exercise of the right to bear arms internationally is intrinsically linked to a people's ability to possess them, and that the possession of arms is the distinction between a freeman and a slave.
Don Kates, a civil liberties lawyer, cites historic English usage describing the "right to keep and bear their private arms."
Likewise, Sayoko Blodgett-Ford notes non-military usage of the phrase in the Pennsylvania ratifying convention:"[T]he people have a right to bear arms for the defense of themselves and their own state, or the United States, or the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed..."
In commentary written by Justice Cummings in United States v. Emerson, the United States Court of Appeals for the Fifth Circuit concluded in 2001 that:
Similarly, in a released Senate report on the Right to Keep and Bear Arms, Senator Orrin Hatch, chairman, U.S. Senate Judiciary Committee, Subcommittee on the Constitution, states:
Likewise, the U.S. Supreme Court ruled in District of Columbia v. Heller (2008), No. 07-290, that "[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."
Military service meaning
Some historians have argued that prior to and through the 18th century, the expression "bear arms" appeared exclusively in military contexts, as opposed to the use of firearms by civilians."In late-eighteenth-century parlance, bearing arms was a term of art with an obvious military and legal connotation. ... As a review of the Library of Congress's data base of congressional proceedings in the revolutionary and early national periods reveals, the thirty uses of 'bear arms' and 'bearing arms' in bills, statutes, and debates of the Continental, Confederation, and United States' Congresses between 1774 and 1821 invariably occur in a context exclusively focused on the army or the militia."
However, this conclusion is disputed and may be due to selection bias, which arises from the use of a limited selection of government documents that overwhelmingly refer to matters of military service. Commenting on this previous research, other historians note:"Searching more comprehensive collections of English language works published before 1820 shows that there are a number of uses that...have nothing to do with military service...[and] The common law was in agreement. Edward Christian’s edition of Blackstone’s Commentaries that appeared in the 1790’s described the rights of Englishmen (which every American colonist had been promised) in these terms 'everyone is at liberty to keep or carry a gun, if he does not use it for the [unlawful] destruction of game.' This right was separate from militia duties."
The Oxford English Dictionary defines the term to bear arms as: "to serve as a soldier, do military service, fight," dating to about the year 1330.
Garry Wills, author and history professor at Northwestern University, has written of the origin of the term bear arms:"By legal and other channels, the Latin "arma ferre" entered deeply into the European language of war. Bearing arms is such a synonym for waging war that Shakespeare can call a just war " 'justborne arms" and a civil war "self-borne arms." Even outside the special phrase "bear arms," much of the noun's use echoes Latin phrases: to be under arms (sub armis), the call to arms (ad arma), to follow arms (arma sequi), to take arms (arma capere), to lay down arms (arma pśnere). "Arms" is a profession that one brother chooses the way another choose law or the church. An issue undergoes the arbitrament of arms." ... "One does not bear arms against a rabbit...".
Garry Wills also cites Greek and Latin etymology:"... "Bear Arms" refers to military service, which is why the plural is used (based on Greek 'hopla pherein' and Latin 'arma ferre') – one does not bear arm, or bear an arm. The word means, etymologically, 'equipment' (from the root ar-* in verbs like 'ararisko', to fit out). It refers to the 'equipage' of war. Thus 'bear arms' can be used of naval as well as artillery warfare, since the "profession of arms" refers to all military callings."
Historically, the right to keep and bear arms, whether considered an individual or a collective or a militia right, did not originate fully-formed in the Bill of Rights in 1791; rather, the Second Amendment was the codification of the six centuries old responsibility to keep and bear arms for king and country that was inherited from the English Colonists that settled North America, tracing its origin back to the Assize of Arms of 1181 that occurred during the reign of Henry II. Through being codified in the United States Constitution, the common law right was continued and guaranteed for the People, and statutory law enacted subsequently by Congress cannot extinguish the pre-existing common law right to keep and bear arms.
This right is often presented in the United States as synonymous with the Second Amendment to the United States Constitution, although this belief is controversial.
The right is often presented in the United States as being an unenumerated, pre-existing right, such as provided for by the Ninth Amendment to the United States Constitution, although this belief is controversial.
Some have seen the Second Amendment as derivative of a common law right to keep and bear arms; Thomas B. McAffee & Michael J. Quinlan, writing in the North Carolina Law Review, March 1997, Page 781, have stated "... Madison did not invent the right to keep and bear arms when he drafted the Second Amendment—the right was pre-existing at both common law and in the early state constitutions."
Akhil Reed Amar similarly notes the basis of Common Law for the first ten amendments of the U.S. Constitution, "following John Randolph Tucker's famous oral argument in the 1887 Chicago anarchist case, Spies v. Illinois": Though originally the first ten Amendments were adopted as limitations on Federal power, yet insofar as they secure and recognize fundamental rights – common law rights – of the man, they make them privileges and immunities of the man as citizen of the United States...
Uviller and Merkel hold that the right to bear arms was not reserved for the state, but rather was an individual and personal right for arms only to the extent needed to maintain a well regulated militia to support the state. They also hold that a militia recognizable to the framers of the Constitution has ceased to exist in the United States resulting from deliberate Congressional legislation and also societal neglect; nonetheless, "Technically, all males aged seventeen to forty-five are members of the unorganized militia, but that status has no practical legal significance."
"From the text as well as a fair understanding of the contemporary ethic regarding arms and liberty, it seems to us overwhelmingly evident that the principal purpose of the Amendment was to secure a personal, individual entitlement to the possession and use of arms. We cannot, however, (as the individual rights contingent generally does) disregard entirely the first part of the text proclaiming a well regulated militia necessary to the security of a free state."
"...we understand the Second Amendment as though it read: "Inasmuch as and so long as a well regulated Militia shall be necessary to the security of a free state and so long as privately held arms shall be essential to the maintenance thereof, the right of the people to keep and bear arms shall not be infringed." "..to us, the language of the Amendment cannot support a right to personal weaponry independent of the social value of a regulated organization of armed citizens.."
According to gun-control proponent Sarah Brady, founder of the Brady Campaign, in the United States the meaning of "bear arms" is a matter of recent dispute and continuing political debate, although this belief is controversial. One argument is whether the expression involves the rights of an individual to 'keep and bear arms', or whether, according to Sarah Brady, it relates exclusively to a military service meaning of 'bear arms' as with the functioning and maintenance of an organized militia, although this belief is controversial.
Early commentary in state courts
The Second Amendment of the United States Constitution is a federal provision. Each of the fifty states also has its own state constitution. Each of forty-four states chose to explicitly embody a right to bear arms into its state constitution, and six states have explicitly chosen not to do so.
Approximately thirty-one states have explicitly chosen to include the right to arms for "individual right", "defense of self", "defense of home" or similarly worded reasons. Approximately thirteen states, as with the U.S. Constitution, did not choose to explicitly include "individual", "self" or "home" wording associated with a right to bear arms for their specific states.
Approximately twenty-eight states have explicitly chosen to include the right to bear arms for "security of a free state", "defense of state", "common defense" or similarly worded reasons, as with the U.S. Constitution. Approximately sixteen states did not choose to include explicitly "free state", "defense of state" or "common defense" wording for their specific state. Whether the inclusion of these kinds of wording in state constitutions has relevance to the issue of whether implicit "individual" rights exist, or whether such rights (if any) are implicitly protected by the states' constitutions or by the U.S. Constitution's Second Amendment, remains a matter of dispute.
Regarding the state interpretations of these state and the federal constitutional rights to bear arms, state courts have addressed the meaning of these specific rights in considerable detail. Two different models have emerged from state jurisprudence: an individual right and a collective right.
Bliss v. Commonwealth (1822, KY) addressed the right to bear arms pursuant to Art. 10, Sec. 23 of the Second Constitution of Kentucky (1799): "That the right of the citizens to bear arms in defence of themselves and the state, shall not be questioned." This was interpreted to include the right to carry a concealed sword in a cane. This case has been described as about "a statute prohibiting the carrying of concealed weapons [that] was violative of the Second Amendment." Others, however, have seen no conflict with the Second Amendment by the Commonwealth of Kentucky's statute under consideration in Bliss since "The Kentucky law was aimed at concealed weapons. No one saw any conflict with the Second Amendment. As a matter of fact, most of the few people who considered the question at all believed amendments to the U.S. Constitution did not apply to state laws."
The Kentucky High Court stated in Bliss, "But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution." The "constitution" mentioned in this quote refers to Kentucky's Constitution.
The case prompted outrage in the Kentucky House, all the while recognizing that Section 23 of the Second Constitution of Kentucky (1799) did guarantee individuals the right to bear arms. The Bliss ruling, to the extent that it dealt with concealed weapons, was overturned by constitutional amendment with Section 26 in Kentucky's Third Constitution (1850) banning the future carrying of concealed weapons, while still asserting that the bearing of arms in defense of themselves and the state was an individual and collective right in the Commonwealth of Kentucky. This recognition, has remained to the present day in the Commonwealth of Kentucky's Fourth Constitution enacted in 1891, in Section 1, Article 7, that guarantees "The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons." As noted in the Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980’s, vol. 10, no. 1, 1982, p. 155, "The first state court decision resulting from the "right to bear arms" issue was Bliss v. Commonwealth. The court held that "the right of citizens to bear arms in defense of themselves and the State must be preserved entire, …" "This holding was unique because it stated that the right to bear arms is absolute and unqualified."
The importance of Bliss is also seen from the defense subsequently given against a murder charge in Kentucky against Mattews Ward, who in 1852 pulled out a concealed pistol and fatally wounded his brother's teacher over an accusation regarding eating chestnuts in class. Ward's defense team consisted of eighteen lawyers, including U.S. Senator John Crittenden, former Governor of Kentucky, and former United States Attorney General. The defense successfully defended Ward in 1854 through an assertion that “a man has a right to carry arms; I am aware of nothing in the laws of God or man, prohibiting it. The Constitution of Kentucky and our Bill of Rights guarantee it. The Legislature once passed an act forbidding it, but it was decided unconstitutional, and overruled by our highest tribunal, the Court of Appeals.” As noted by Cornell, “Ward's lawyers took advantage of the doctrine advanced in Bliss and wrapped their client's action under the banner of a constitutional right to bear arms. Ward was acquitted.”
In contrast, in State v. Buzzard (1842, Ark), the Arkansas high court adopted a militia-based, political right, reading of the right to bear arms under state law, and upheld the 21st section of the second article of the Arkansas Constitution that declared, "that the free white men of this State shall have a right to keep and bear arms for their common defense", while rejecting a challenge to a statute prohibiting the carrying of concealed weapons. Buzzard had carried a concealed weapon and stood "indicted by virtue of the authority of the 13th section of an act of the Legislature prohibiting any person wearing a pistol, dirk, large knife or sword-cane concealed as a weapon, unless upon a journey, under the penalties of fine and imprisonment." Justice Lacy, in a dissenting opinion in Buzzard, summarizing the majority viewpoint to which he disagreed, declared: "That the words "a well regulated militia being necessary for the security of a free State", and the words "common defense" clearly show the true intent and meaning of these Constitutions [i.e., Ark. and U.S.] and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then the people, neither individually nor collectively, have the right to keep and bear arms." Joel Prentiss Bishop’s influential Commentaries on the Law of Statutory Crimes (1873) took Buzzard's militia-based interpretation, a view that Bishop characterized as the “Arkansas doctrine", as the orthodox view of the right to bear arms in American law.
Political scientist Earl Kruschke has categorized both Bliss and Buzzard as being “cases illustrating the individual view.” Professor Eugene Volokh revealed, in the California Political Review, that a statement in a concurring opinion in Buzzard was the only support for a collective right view of the right to keep and bear arms in the 19th century.
In 1905, the Kansas Supreme Court in Salina v. Blaksley made the first collective right judicial interpretation. The Kansas high court declared: "That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal Constitution, which says: '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.'"
Modern commentary: three models
Three models of interpreting the right to bear arms in the United States commonly exist. These three models are founded on differing interpretations of the Second Amendment, "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."
The first two models focus on the preamble, or "purpose" clause, of the Amendment — the words "A well regulated Militia, being necessary to the security of a free State." The first model, the collective model, holds that the right to bear arms belongs to the people collectively rather than to individuals, because the right's only purpose is to enable states to maintain a militia. The second model, the modified collective model, is similar to the first. It holds that the right to keep and bear arms exists only for individuals actively serving in the militia, and then only pursuant to such regulations as may be prescribed.
The third model, the Individual Rights Model, holds that a right of individuals is to own and possess firearms, much as the First Amendment protects a right of individuals to engage in free speech. This view was adoped by the Supreme Court in District of Columbia v. Heller (2008). Prior to the Supreme Court's ruling in Heller there was a split among the federal courts, with nine of the federal circuit courts of appeal supporting a modified collective rights view, two of the federal circuits supporting an individual rights view, and one federal circuit court having not addressed the question.
Supreme Court justice Antonin Scalia in 2008 wrote that the right to bear arms is not unlimited and is subject to reasonable prohibitions and regulations and subsequently federal court rulings have upheld existing gun prohibitions and regulations.
Nadine Strossen, President of the ACLU, has stated the argument that the Individual Rights model must yield to reasonable regulation. "Let’s assume for the sake of argument it does protect an individual right," said Strossen, "it is no more absolute than freedom of speech or any other right in the Constitution. No right is absolute; the government is always allowed to restrict the right if it can satisfy Constitutional strict scrutiny and show the restriction is narrowly tailored to promote a goal of compelling importance."
At the state level, each of the fifty state constitutions, state laws, and state courts address the state-based right to bear arms distinctly within their respective jurisdictions. The degree and the nature of the protection, prohibition, and regulation at the state level varies from state to state. The District of Columbia, not being a state, falls within the federal jurisdiction.
In the Nineteenth century, in the United States, considerable attention in public discourse and the courts was directed to the issue of the risks of arming of slaves (prior to the Civil War), and later to the right of the Negro people to belong to militia and the arming of the Negro people. Most famously this is seen in the court arguments of the court case Dred Scott v. Sandford, whether the slave Dred Scott could be a citizen, with rights, including the right to bear arms. This debate about the rights of slaves and former slaves often included the usage of the term 'bear arms' with the meaning of individual Negroes having or not having the right to possess firearms.
In October 2001, the United States Court of Appeals for the Fifth Circuit stated:
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"there are numerous instances of the phrase 'bear arms' being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the 'people' [or 'citizen' or 'citizens'] "to bear arms in defense of themselves [or 'himself'] and the state,' or equivalent words, thus indisputably reflecting that under common usage 'bear arms' was in no sense restricted to bearing arms in military service."
The Emerson decision was consistent with a view of Constitutional interpretation known by its principal advocates as the "Standard Model" view, and alternatively referred to as the "Individualist view". There is some dispute whether the "individualist view" predates the collective "militia view" in American jurisprudence. Some assert the "militia view" first appeared only in the early to mid 1990s. A contrasting opinion asserts the militia view long predates the individualist view, with the individualist view dating back to only 1960.
In the late twentieth (20th) century, gun advocates argued that the term 'keep and bear arms' means and has meant keeping and bearing private arms for self defense or hunting purposes. The 1986 TV film The Right of the People refers to this for self-defense against crime.
The Second Amendment of the United States has also been viewed by many private Americans, including those who are part of the modern militia movement as providing a means for resisting governmental tyranny, also known as the "insurrectionary theory of the Second Amendment". The modern militia movement in the United States has sought to advance its case through selective quoting on websites and publications the words of the founding fathers, though the accuracy of these quotations has been debated. What is notable is that the quotations generally align not with the Federalist Framers, but rather with the Anti-Federalist objectors to the Constitution. People sympathetic with the modern militia movement object to this analysis.
Jurisdictions with Civil Law/Roman Law judicial origin
Cuba
Chapter 1, Article 3 of the Constitution of Cuba "... all citizens have the right to struggle through all means, including armed struggle. ..."'
Mexico
"Article 10. The inhabitants of the United Mexican States are entitled to have arms of any kind in their possession for their protection and legitimate defense, except such as are expressly forbidden by law, or which the nation may reserve for the exclusive use of the Army, Navy, or National Guard; but they may not carry arms within inhabited places without complying with police regulations."
Spain
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"
Jurisdictions based on Asian law
People's Republic of China
According to PRC law, privately owned firearms are illegal in the People's Republic of China. "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."
Democratic People's Republic of Korea
Chapter IV, Article 60 of the Socialist Constitution of the Democratic People's Republic of Korea (North Korea) "The State shall (...) arm the entire people and fortify the country on the basis of equipping the army and the people politically and ideologically."
Jurisdictions based on religious law
Sharia
Under Sharia in Islam, all men are policemen and soldiers. All men have the right to bear arms. Jews, Christians, and women are prohibited from bearing arms.
Further reading
See also
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