The Right To Bear Arms

I have often commented in this column that, in the UK, we have some of the strictest gun laws in the world. As such, I have always considered myself fortunate to have been a licence holder continuously since I was first able to apply as a teenager.

Our national approach to gun law revolves around gun ownership being a privilege and not a legal right, and despite the reported increases in serious crime across the country, I suppose I should remain thankful that our mainstream police forces (meaning those who do not operate within specialist trained response or firearms units) do not carry firearms.

The temptation for sarcasm in making that remark, however, is almost too great, as someone who once spotted – and immediately reported – a “discarded” police handgun lying on the tarmac directly beneath the driver’s door of a police car in the middle of a major city. My confidence in the police being able to keep their own firearms safe requires a degree of fortification at the best of times.

Of course, our own domestic news is full of gun-related stories from across the pond and in the United States it might be said the words “privilege” and “gun ownership” are not often seen together in the same sentence. That is because, of course, some clever people many years ago decided to sit down and write a US constitution, containing several key pillars of governance – as well as several key amendments, the second one reading (and authenticated by Thomas Jefferson) as follows:

“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.”

Bill Of Rights

Having grown up with a much shorter version of these words in my head, namely “the right to keep and bear Arms,” I have to say that reading the entire wording of the second amendment came as a bit of a surprise. It showed me how my subliminal perception of US law and culture had gone awry.

Firstly, what is clear is that gun ownership in the US is not, strictly speaking, an unlimited right. Secondly, the amendment (in the context in which it was declared – December 1791) distinctly linked gun ownership to a tumultuous period in US history where it was perceived a necessary requirement for people to be able to defend themselves against a hostile government. Thirdly, I find it almost staggering that those relatively few words have caused one of the most powerful political groups to evolve in the US – commonly known as “the gun lobby” and which is manifested largely in the form of America’s NRA.

“Wow!” It made me think. “We could do with one of those written constitution thingies over here…maybe in a couple of hundred years we might then be able to construe the wording so widely we could overturn a few of our own gun laws or, at least, control them better.”

Wishful thinking it may be, but the US example is nonetheless good for comparison. So where do the gun laws sit in the US and are they consistent across the country as a whole? Presently, the centralised functions regarding firearms control sit within the Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF as it is commonly known. The ATF is a law enforcement agency that sits within the Department of Justice.

Its function, in very broad terms is to curb the illegal use of firearms and enforce the Federal firearms laws. As such, it has a licensing function, undertakes compliance inspections and generally gets involved in investigations regarding the criminal use of firearms.

The Federal laws which the ATF is responsible for include the National Firearms Act 1934 – which mandates the registration of machine guns, short-barrelled shotguns and rifles and heavy weapons; the Federal Firearms Act 1938 – which requires gun manufacturers, importers and persons involved in selling firearms to be licenced and also, importantly, prohibits the transfer of firearms to certain classes such as convicted felons; and the Gun Control Act 1968 – which controls the commercial trade of firearms between States.

For an outsider, however, the position becomes far more detailed and confusing at state level, where there is a high degree of disparity. 44 states have a provision in their constitution which is identical to that of the Second Amendment. Those which do not are California, Iowa, Maryland, Minnesota, New Jersey and New York – though New York does have a provision that is almost identical.

Owners of firearms must abide by the laws of the state they are in and not just the state in which they are resident. Hence there is a degree of reciprocity between states, but even then it is not conclusive. So, for example, concealed carry permits in Oregon are recognised in Idaho but not vice versa. Some states do not recognise concealed carry permits at all whereas others issue licences for concealed weapons and firearms.

Travelling with a firearm interstate across the US can therefore be a logistical nightmare unless you carefully familiarise yourself with the laws applicable in each state or locality. Interestingly, some state laws possess similarities to our own laws in the UK (though they are not, of course, national). So, for instance, some states require a person to obtain a licence or permit to buy or possess firearms, whereas others do not. Other states insist on individual firearms being registered with the police or a similar enforcement agency.

Whereas federal law requires a background check to be carried out by a licensed dealer who is selling a firearm, in some states this has been extended to private sellers – certainly something I was unaware of. Even at a local level one can find examples of where the gun laws are much more restrictive than at state or federal level. In other cases, the complete opposite is true. Most US states provide some form of right to carry a concealed weapon in public.

We The People

In some states, however, the introduction of ‘stand your ground’ laws provide individuals with the right to use deadly force in self-defence without there being any obligation or duty to retreat or flee. I cannot think of anything so far removed from the original principle contained in the Second Amendment as that.

When we hear discussion about calls in the US for ‘tighter’ gun control, I question what that actually means. In some parts of the US it would appear that gun laws are pretty tight already. Not in a way, maybe, that we have come to understand it because it is very much at a local level. I wonder whether, therefore, a more apt way of describing ‘tighter’ gun control would be ‘consistent gun control. Is that achievable? Probably not, because of how the legal system across the US has evolved.

However, a lesson we might learn from our stateside cousins is that having a plethora of laws across one subject matter is equally undesirable. With so much fragmentation occurring in our own laws, we always need to be mindful that having a good tidy up can be a healthy thing to do if we want to balance consistency with clarity in the future.

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Posted in Comment, Legal
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