Right to bear arms
From Wikipedia, the free encyclopedia
The right to bear arms refers to the concept that individuals, and not just states, have a right to weapons. 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 and is not uniformly believed. This "right" is also often presented in a broader, global, and more complex human rights sense, but this belief is controversial, too.
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[edit] Definition
What does the expression "bear arms" mean? This is a topic of considerable debate. In modern usage, the expression "bear arms" is usually considered synonymous with the phrase "have or carry firearms".
Although the term 'arms' means firearms most commonly, laws and statutes also usually define other types of weapons, such as swords, knives, and other similar objects, to be arms as well.
In earlier times the expression "bear arms" appears to some to have had a different meaning. At least one study has found " ...that the overwhelming preponderance of usage of 300 examples of the "bear arms" expression in public discourse in early America was in an unambiguous, explicitly military context in a figurative (and euphemistic) sense to stand for military service"[1] Further, the Oxford English Dictionary on Historical Principles declares that a meaning of "to bear arms" is a figurative usage meaning "to serve as a soldier, do military service, fight". This study casts doubt on the modern definition of 'bear arms' to mean 'carry firearms'.
Still, to others, the modern definition has always been the common definition. For example, the United States Court of Appeals for the Fifth Circuit stated in 2001 that
"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."[2]
Types of rights to bear arms:
- For use in a militia or to ensure the viability of militias
- For self defense
- For hunting, both for subsistence and/or for recreation.
- For sport, such as marksmanship or Biathlon
- For pest control in farm management
- For meeting military-readiness obligations
- For traditional cultural purposes, such as the Kukri
- For police, sheriff or security services
- For gun collecting[3]
[edit] Historical sources or protections of the right
The right to bear arms varies by country and, commonly, varies by jurisdiction within a country.
[edit] Jurisdictions with English judicial origin
Frequently cited sources:
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.[5]. England, The United Kingdom, 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. 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. 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 to legislate and regulate historical common law right to have arms for self defense.
[edit] Canada
Canadian Bill of Rights, Part 1. Section 1. Paragraph (a) [6]
[edit] 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 which 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.
- Second Amendment to the United States Constitution Protects the pre-existing right to keep and bear arms.
- Ninth Amendment to the United States Constitution Provides for unenumerated rights, including the right to keep and bear arms and the 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." [7]
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...[8]
[edit] An individual or collective right?
The right to bear arms in United States is best understood as a collective and/or an individual right. In Federalist paper 46, [9]James Madison, argued for the position that the common citizen should be armed to counter the potential threat of a Federal Army during the negotiations and drafting of the Bill of Rights. During the negotiations some expressed a great deal of concern that the new Federal military could become a serious threat to liberty in the future. [10] He also contrasts the United States with the governments of Europe by loathing the prohibition of keeping arms in those nations “… Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.” James Madison
Madison is often regarded as the father of the Bill of Rights, though the Bill of Rights was a compromise achieved through negotiations during the First Congress of the United States.
[edit] A state or individual right?
“Individual rights” proponents maintain that: The “state’s rights” view of bearing arms only became known in the late 20th century motivated by a desire for stricter gun control laws. Also that, the right to bear arms is currently and has historically always been practiced as an individual right.
James Madison, a noted Federalist, makes clear his understanding that the power of bearing arms belongs to the people not the state: “… still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger.” States are forbidden in the U.S. Constitution from keeping troops independent from the Federal government but must rely on citizen militias for their defense.
Alexander Hamilton, in Federalist Paper #29 [11], states the importance of citizens bearing arms. Much of the debate in Federalist Paper #29 centers around how much power the government should have in regulating the militias. The Federalists position concluded that the state governments should have access to select, well-trained, militias so that the need to keep a standing army would be diminished. Today, the National Guard often serves much of this function. Federalists argued that at the same time, the whole body of citizenry (the unorganized militia) would be bearing arms to offset the concerns that even the state militias could become a danger to liberty. Anti-Federalists believed otherwise.
Hamilton concludes that “This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”
Ultimately, Federalists and Anti-Federalists negotiated their differences during the First Congress with the resulting compromise becoming the Bill of Rights.
[edit] Department of Justice, Office of Legal Counsel Memorandum Opinion, August 24, 2004
On August 24, 2004, the Department of Justice, Office of Legal Counsel wrote a Memorandum Opinion for the United States Attorney General. It opined, "The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias." [12]
[edit] Jurisdictions with Civil Law/Roman Law judicial origin
[edit] Cuba
Chapter 1, Article 3 of the Constitution of Cuba "... all citizens have the right to struggle through all means, including armed struggle..."
[edit] 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."[13]
[edit] Spain
Per section 149.26 of the Spanish Constitution "The State shall have exclusive competence over...the use of arms..."
