Right to keep and bear arms

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This article refers to the self defense and military service meanings of "bear arms". For the rights of an individual to possess a coat of arms, see the articles on heraldry or Law of arms.

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The right to bear arms refers to the concept that individuals, and/or states, have a right to weapons. This right is also often presented in the context of military service and the broader right of self defense.

Definitions of "bear arms"

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One view is that prior to and through the Eighteenth Century, usage of the expression "bear arms" predominately referred to the profession of military service, 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 is not true for the United States constitution as duly noted in the Anti-Federalist Papers, from which rose the bill of rights. As an example, the expression 'bear arms' is used in the United States Declaration of Independence in the sense of 'military service' on a warship, as part of an indictment of the King of Great Britain for conscripting Colonial sailors to serve on British warships.

"He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands."

Garry Wills, author and history profession 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 pœnere). "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...".

In the Seventeenth and Eighteenth Centuries, in England and the British Colonies, the militia system was based on the principle of the Twelvth Century Assize of Arms, where there was general obligation of adult males to possess arms and cooperate in the work of defense.

Also, 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 Negro's having or not having the right to possess firearms.

The right to arms

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In an effort to consolidate power in Seventeenth Century England, the Catholic King James II of England sought to disarm Protestants by discharging them from the militia, both in Ireland and in England, replacing them with Catholics. This policy of consolidation also included an aspect of shifting control of the weapons from citizens' militia to the professional army, thereby reducing the number of weapons in the hands of his Protestant subjects and political opponents. This disarmament policy included enforcement of the Game Act, and an archaic measure from 1328 that forbade men to ride armed 'in affray of the peace'.

Historical sources or protections of the right

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

Main article: English law

Frequently cited sources:

Common Law
English Bill of Rights, 1689

The responsibility to keep and bear arms in jurisdictions operating under English Common Law follows a precedent that predates the invention of firearms, originating contemporaneously with the jury trial and the emergence of the common law system, 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.. A Common Law right to have arms for self defense was codified in the English Bill of Rights of 1689 (also known as the English Declaration of Rights), at least for Protestants. England, Ireland, the Colonies in North America (which became the United States), Canada, and Australia all received this Common Law inheritance and long maintained a responsibility to keep and bear arms tradition originating from this common basis. Subsequent to this, over the last 80 years, in all these countries except the United States, Parliamentary supremacy has permitted statutory law to be developed that extinguishes the historical common law right to have arms for self defense. Similarly, in the United States, the courts have widely allowed local jurisdictions in some states (e.g., New York, Illinois, California, New Jersey) to license and regulate historical common law rights to have arms for self defense.

England, Wales and Northern Ireland

Further information: English law and Northern Ireland law

Although a right to have and use arms once existed in English law, this is no longer the case and has not been so for many decades. Some argue that a general right to keep or bear arms has not existed for centuries. In any case, 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.

The Bill of Rights of 1689 included the provision that "the subjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law." The words "as allowed by Law" indicate this was always a qualified rather than an absolute right. However this provision, along with many other pieces of ancient law, is now effectively obsolete. The English Bill of Rights should not be equated to the United States Bill of Rights. In the United Kingdom, Parliament is the ultimate authority and legislation is not constrained by a central codified constitution like that of the United States, although the 1998 Human Rights Act is generally considered to have altered the situation slightly. Thus, over the years, Parliament has fundamentally changed the UK constitutional position. This includes very substantial restrictions on any right to bear arms.

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.

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 any right 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 and Firearms (Amendment) (No. 2) Act 1997 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.

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, for example during "The Troubles" in Northern Ireland, however these are very limited and exceptional cases.

United States of America

The right to keep and bear arms 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 among some factions and is not subscribed to by all.

Second Amendment to the United States Constitution Protects the pre-existing right to keep and bear arms.

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.

Ninth Amendment to the United States Constitution Provides for unenumerated rights, including implicitly a right to keep and bear arms and a right to have arms for defense.

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 in the Yale Law Journal, April 1992, Page 1193, 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 in so far 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...

A collective and/or an individual right?

United States federal courts have consistently interpreted the federal right to bear arms in United States as a collective right, not an individual right, with two recent exceptions in the federal lower courts: The 2001 Fifth Circuit court ruling United States v. Emerson and the Ninth Circuit court 2007 ruling Parker v. District of Columbia, both of which introduce principles of an individual right to firearms. Presently, nine of the federal circuit courts support a collective rights view, two of the federal circuit courts an individual rights view, and the Supreme Court and one federal circuit court have not addressed the question.

At the state level, each of the fifty United States 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.

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."

Scotland

Main article: Scots law

Following the Dunblane Massacre, the Cullen Inquiry recommended tighter control of handgun ownership as well as other changes in school security and vetting of people working with children under 18.

Spain

Per section 149.26 of the Spanish Constitution "The State shall have exclusive competence over. ..the use of arms. .."

Jurisdictions with Religious Law judicial origin

Footnotes

^ Uviller, H. Richard. & Merkel, William G.: The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent , Page 194. Duke University Press. ISBN 0-8223-3017-2
Pepper, John; Petrie, Carol; Wellford, Charles F.: Firearms and violence, Page 290. National Academies Press, 2004. ISBN 0309091241
Wills, Garry. To Keep and Bear Arms. New York Review Of Books, Sept. 21, 1995.
Osgood, Herbert Levi : The American Colonies in the Seventeenth Century , Page 499. Macmillan & Co., Ltd., 1904.
Malcolm, Joyce Lee (2002). Guns and Violence: The English Experience , Page 57-58. Harvard University Press. ISBN 0674007530
"House of Lords Journal Volume 14". 12 February 1689. Retrieved 2007-03-07.
Even if this section of the 1689 Bill of Rights were to be considered as remaining in English law the Human Rights Act 1998, which has certain characteristics of a modern "Bill of Rights", effectively overrules it and makes it unconstitutional on the grounds that according privileges solely to "Protestants" is incompatible with the right to freedom from religious persecution.
There is also a European Union directive covering control of the acquisition and possession of weapons, which has a binding constitutional effect on member states. This does not confer any additional right to bear arms but is concerned mostly with harmonising national laws for trade purposes. ("Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons". Retrieved 2007-03-07.
"Report 87: Psychological Evaluation and Gun Control" (PDF). Parliamentary Office of Science and Technology. 1996. Retrieved 2007-03-07.
"Firearms Act 1968". Statute Law Database. Retrieved 2007-03-07.
"Firearms (Amendment) Act 1997". Office of Public Sector Information. Retrieved 2007-03-07. and "Firearms (Amendment) (No. 2) Act 1997". Office of Public Sector Information. Retrieved 2007-03-07.
"New Legislation". The Metropolitan Police. Retrieved 2007-03-07.
Holder, Angela Roddy: The Meaning of the Constitution, Page 64. Barron's Educational Series, 1997. ISBN 0764100998
Liptak, Adam: A Liberal Case for Gun Rights Sways Judiciary. New York Times, May 6, 2007.
Cooley, Thomas M. & Angell, Alexis C.: A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the American Union, Page 427. Boston: Little, Brown & Company. 1890

References

Uviller, H. Richard (2002). The Militia and the Right to Arms. Duke University Press. ISBN 0-8223-3017-2. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)

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