Right to Bear Arms as a Constitutional Right: Comparitive Stand-point of the Law in the United States of America and India

By Ivana Chatterjee, Christ Law College

Editor’s Note: Constitutionality of any law is important as it is closely related to the Fundamental Rights of people. One of the most sacred  fundamental rights is the Right to Life. Inherent in the Right to Life is the right to defend oneself because there may arise circumstances where, in order to protect one’s life, a person may have to take up arms. The idea of ordinary citizens carrying weapons is plausible in some nations, while in other nations; it is restricted only to the State. The right has been granted in countries like the United States through the Second Amendment of the Constitution. In the States, citizens are allowed to carry arms to defend themselves as private militia is permitted to exist. However, the right has been restricted by ‘gun control legislations’, which restrict the right with respect to some places or persons. On the other hand, in India, it is not recognised as a constitutional right. The Arms Act places numerous impediments with respect to possession of arms. While keeping weapons may be considered necessary for the protection of one’s life; in recent times, the right has been misused, as is apparent form increasing rate of crime perpetrated using privately owned arms. Therefore, it becomes essential to re-examine the tenets of the right to bear arms with respect to the prevailing situation.

Right to bear arms in the literal sense means people’s right to keep arms for the purpose of defence. It’s open to interpretation whether the purpose is individualistic in nature or collective. The philosophical and logical reason to bear arms has been explained by many imminent philosophers like Aristotle and John Locke and Beccaria. John Locke in ‘Two Treatises of Government, 1689’says “Must men alone be debarred the common privilege of opposing force with force, which nature allows so freely to all other creatures for their preservation from injury? I answer self-defence is a part of the law of nature, nor can it be denied to the community, even against the king himself”. Many countries have recognised the right to bear arms as a constitutional right. India and the United States of America have taken  different stands regarding the right to bear arms.

Right to Bear Arms in the United States of America

In the United States of America, the right to bear arms has a constitutional recognition. The Second Amendment of the US Constitution protects the right  as a constitutional right. It reads as follows: “A well-regulated militia, being necessary to the security of the State, the right of the people to keep and bear arms shall not be infringed.”It was influenced by the English Bill of Rights 1689.The English Bill of Rights 1689 being a major influence, which protected the Protestants from the oppression of King James II who discriminated against them. The Protestants were given the right to have arms for their own defence.[i]

This right has a history of its own. Between   1776 and 1780, 11 states drew up their Constitutions. Among the 11 states, only 8 formally declared rights in their Constitution. Out of that only three states adopted the Bill of Rights and included right to bear arms in their constitution. The first state to do so was Pennsylvania followed by North Carolina. The Constitution of Pennsylvania stated that “The people have a right to bear arms for the defence of themselves and the State”. It also mentioned the danger of having a standing army and said that the right should occupy a subordinate position to the military and be monitored by the government. Pennsylvania was closely followed by  North Carolina and North Carolina was closely followed by Massachusetts, the literal text being the  same for the three.

By 1780 two patterns were established: the right to bear arms to defend the State against external threats and to defend oneself against all. Including the right to bear arms was not a prerequisite for acceptance of the Constitutions but was a popular desire. Popular insistence to include this right and amend the United States Constitution made the first congress led by James Madison send out 12 proposals out of which 10 were ratified. Article II of the National Bill of Rights read as “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”. A number of States  accepted militia but under the control of the government. The right to bear arms beyond militia was left for the states to define.

Many States such as Kentucky  dropped this right from the Constitution, but it was eventually resorted. Arkansas and Florida had omitted this right. All this took place during the Civil War and Reconstruction Periods. The Constitution of Mississippi stated that: “Every Citizen has a right to bear arms in defence of himself and the State”. This provision was only applicable to the citizens which meant that slaves did not have the right to bear arms because in those days slaves were not considered citizens or legal persons. Even the blacks were not brought inside the ambit of citizens as they were considered to be outsiders. The States of Alabama and Texas followed the text of Mississippi’s Constitution but replaced the word citizen with people.  The ‘equal protection’ clause of the fourteenth amendment was applied to the second amendment.

Though the concept of the right to bear arms remained same throughout the States, the text used differed which brought in different interpretations by different states. The state of Michigan equated the term “person” with “people”. It declared that these rights were not only limited to the military or to the people who are part of the militia but it extends to every individual and even to aliens. Rhode Island’s Constitution held that people’s right to bear arms should not be infringed. It was interpreted in a way that unlawful pistols and guns were allowed to be kept at home or at the place of business or in the property of somebody else for the purpose of self-defence. The State of Georgia agreed with Rhode’s interpretation but prescribed how the arms have to be acquired. The state of Idaho went a step ahead by adding that no law should impose any kind of taxes or fees on the ownership or possession of firearms and no law should confiscate any firearms except those actually involved in the commission of felony.[ii]

Among the 36 states that protect the right to bear arms, only 8 had no specific mention about defending the state. The standing army was not very effective in nature. It could not be at all places at all times Therefore having a militia was seen to be important. They were the locals and could reach the situation of emergency at a very short span. The National Guard is considered to be the modern substitute of the militia.[iii]

The basic purposes behind the right to bear arms is maintaing a militia, protection against governmental oppression and self-defence. America also relies highly on the citizen militia for internal and external aggression. The effectiveness of the citizen militia largely depends upon the familiarity of the citizens with the different firearms available.  The second amendment confers on the citizens the right to rise up against any tyrannical threat with the help of the arms owned in their private capacity. The third purpose of this right is self-defence. As John Locke had said the right to self-defence is a natural right and it shall not be taken away. Thus self-defence is justification for the right to bear arms. However this right does not include within its ambit right to use arms for hunting of animals.[iv]

The question still remains whether the right is individualistic or collective in nature. Americans have approached this right in various ways. It is right in the Constitution and not as a duty. Rights are available against the State and duties are owed to the State. Therefore the citizens are not obliged to defend the country but this kind of obligation may be taken for granted and the duty towards the State can be inferred from the importance given to the term militia in the second amendment of the American Constitution. A similarity can be drawn between the language used in the first and fourth amendment. The first amendment reads “Congress shall make no law abridging the right of the people, peaceably to assemble, and to petition the government for a redress of grievances.” The fourth amendment reads “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated.” These three amendments to the Constitution were framed together and the first and the fourth have always been treated as individual rights than governmental rights. Therefore it might be inferred that even the second amendment can be considered as an individual right. However, this may not be a proper justification as the preamble of the Constitution states that the Constitution was established by the people, although many citizens of The United States of America were barred from taking part in the US ratifying conventions. [v]

However the right to bear arms in the United States of America is not absolute in nature. It is subject to scrutiny and restrictions. There are two methods of implementing constitutional norms; one being strict scrutiny and the other rational basis test. While analysing the second amendment the courts have followed a process of reasonable regulation in various cases. In the case of State v. Shelby, the court held that though the state guarantees a right to bear arms, the right shall be subjected to reasonable regulations.[vi] Strict scrutiny is however not preferred for constitutional provisions as it might tend to curtail the constitutional rights completely.

The State has been given the authority to impose reasonable restrictions on the second amendment. In the absence of any constitutional provisions regulating this right, the authority to regulate is given to the general police power. The term “police power” refers to the general authority of state governments to enact legislations protecting or promoting the public health, safety, moral or general welfare.[vii] The State is free to adopt or enact various legislations as gun control measures; but both the objective of that legislation and the methods chosen to achieve those goals should be reasonable in nature. 17 states have separate legislations whose objective is to regulate the right to bear arms, while legislations banning arms is forbidden in twenty of the States. The purpose behind such gun control legislations is to justify the private possessions of the arms. These gun control legislations are involved in a balancing act where on one side  the amount of public good arising from the possession of arms must be seen  and on the other hand  the right guaranteed to the citizens in the Second Amendment should not be infringed.

Gun control laws prohibit the carrying of certain arms in specific places like carrying concealed weapons, hand guns within city limits or inside a courtroom. However, these laws hardly followed by the people. It has been argued that these laws violates the citizens right of self-defence which can be inferred from the right to bear arms as it leaves them without any mode of self-defence when they are most prone to attack such as within the city limits.[viii] The other class of gun control legislations are the ones which prohibit the possession of firearms by certain classes of people. Such persons include felons and incompetents. These kinds of legislations do not necessarily infringe upon their right to self-defence as the disqualified class of people are more likely to misuse these weapons and commit crime than to use it for self-defence. Thus such legislations are based on the concept of greater good.[ix]

There are also legislations which deals with the prohibition of unusually dangerous weapons. Certain weapons are considered to be too dangerous by the State to be tolerated in the society. Earlier weapons like dirks, clubs, Bowie knifes, pocket pistols were considered to be dangerous weapons and they were outlawed. With the improvement of science and technology, other weapons have also been included in this category. Such other weapons are machine guns, bazookas and missiles. They are considered to be too dangerous for private possession. Although it has been argued that machine guns are effective against governmental oppression, but the danger which can arise from such private possessions outweighs the right against governmental oppression. The idea of greater good is taken into consideration.[x]

A distinction has also been made regarding the possession of hand guns and long guns. The National Commission on the Causes and Prevention of Violence recommended that possession of hand guns should be restricted only to police officers, security guards, small business men in high crime areas and people with special need of protection.  It has statistically stated though people own hand guns for the purpose of self-defence, it has been misused more than long guns. Hand guns are easy to carry around without being detected and therefore the crimes involving handguns are more compared to those involving long guns. Long guns are mostly used for recreational purposes and are not concealable easily therefore the crime rates using long guns are less. Thus the commission suggested the possession of long guns instead of hand guns. This suggestion from the commission has not yet gained any legal significance. None of the States have adopted this proposition. Regulating transfer and sale of weapons could be an effective gun control measure. This would help in regularizing transfer and sale of prohibited weapons. These transfer regulations would be held valid as long as they do not prohibit widespread possession of regular weapons.[xi]

Licensing, registration and audits are also very important gun control methods. By granting license to possess arms, the government can keep a track of who all possess weapons. So in case a crime has been committed it would be easier for the government to track the criminal. While granting license a lot of things are take into consideration such as details of the applicant which may help the government to find out whether the applicant has a criminal record or not and whether he or she should fall under the disqualified category. Before granting the license, the government should give the applicant a waiting period so that the government has sufficient time to investigate about the applicant. Regular audit is also helpful to keep a check on the privately possessed weapons and helps decrease the crimes committed using privately owned arms. The government may also take into its custody the arms owned by the citizens during an emergency period or curfew to avoid further disruption to public order.

Though the second amendment guarantees every citizen the right to bear arms, the governments of the States have worked around it and have found ways to control and regulate such possession. Most of the gun control legislations have seemed to be valid as they are based on the principle of greater good. These legislations should themselves be constitutionally valid and must abide by other criterias such as due process of law and equal protection of the law.

Right to Bear Arms in India

The Indian scenario regarding the right to bear arms is completely different from the  United States of America. It has not been given the protection of the Indian Constitution. Right to bear arms is regulated by the Arms Act 1959. The basic objective behind the act is to consolidate, regulate and amend the laws in India relating to arms and ammunition to stop the circulation of illegal weapons and crimes using these illegal weapons. According to this legislation, no person should acquire or possess or bear any arms or ammunition unless the person has a license which has been issued in accordance with the provisions of this Act. The Act defines various terms such as possession, acquisition, sale, import, export and manufacture. It mentions the rules and regulations attached to these terms. It also deals with the licensing of the arms, the procedure which needs to be followed and the fees required for the same. It also talks about the punishments which are there for breaking the rules mentioned in this Act.[xii]

Thus all aspects of gun control and possession are driven by this legislation and the right has no constitutional significance. However in certain cases the right to self-defence has been included under the ambit of Article 21 of the Indian Constitution. In the case of Ganesh Chandra Bhatt, Justice Katju had taken the above view. Ganesh Chandra Bhatt had applied for the license of a revolver. Even after fulfilling all the necessary formalities for obtaining a clearance, license was not granted. The petitioner approached the Allahabad High Court. Justice Katju in this particular case ruled that if an application has been made for a weapon which does not come under the category of prohibited weapons, and if three months have passed and there has been no communication, it would be deemed that the license has been granted by the government.[xiii] He opined that the right to bear arms is included in the right to self-defence, which being a natural right  should come within the boundaries of Article 21 which talks about right to life.  He mentioned that worshipping firearms during Diwali and Dusherra and using fire arms in Mahabharata illustrates that this right is related to the dignity and self-respect of the citizen and right to life with dignity is guaranteed by Article 21. However this decision was taken before the Mumbai 1993 bomb blast. This decision has been over-ruled by subsequent judgements and as of now the settled point is that right to bear arms is governed by the Arms Act only and is not constitutionally protected.

Conclusion

An analysis of the right in the USA and India  reveals the different treatment that has been given under the two jurisdictions. One gives it a constitutional validity; the other has a separate legislation that severely controls the right .Though the right to bear arms is a historic principle, it is always debated whether such right is valid or not. It must be noted that nowadays, the right is being misused as a result of which the objective of this right is getting lost. 96% of  the killings of police officers in United States of America are done using personal firearms. The death rate has increased about eight times. The rate of suicide committed by individuals has also increased; so have hunting activities- using personal firearms. Hand-guns are being sold as a regular commodity. Among all the states only North Carolina prohibits the sale of hand guns.[xiv]

The objective of the right to bear arms is being lost. It was meant to protect the society and the people from threats but in recent years this itself has become a threat to oneself and the society. The richer classes who can afford to purchase a firearm are exploiting the lower section of the society who are economically backward and are not in a position to purchase firearms. This right drives men against each other. Though the gun control legislations tries maintain a balance in the society, their applicability and efficiency are  a constant subject of debate as the crime rates have increased considerably.

The Indian situation cannot be compared to the situation in the United States of America. It is a developed country. The government is efficient enough to regulate the arms and carry on investigation of the applicant. Though the crime rate is high in America, it is still less than the crime rate in India. Even after strict licensing and regulation of arms in India, the crime rate has not gone down but has increased. Therefore granting a constitutional status to right to bear arms in India would do no good to the country. Therefore unlike the United States of America, where laws related to gun control are subjected to reasonable regulation, in India such laws need be strictly scrutinised. Hence, it is highly debateable whether bearing of arms to essential to protect the society or not bearing of arms is essential to protect the society.

Edited by Kudrat Agrawal

 

 

[i]Robert Taylor, American Constitutions and the Right to Bear Arms.

[ii]Robert Taylor, American Constitutions and the Right to Bear Arms by Robert Taylor

[iii]ibid

[iv] The Impact of State Constitutional Right to Bear Arms Provision on State Gun Control Legislation; University of Chicago law Review,1970.

[v] Federalism and the Constitutional Right to Keep and Bear Arms.

[vi]Adam Winkler, Scrutinizing the Second Amendment.

[vii] The Impact of State Constitutional Right to Bear Arms Provision on State Gun Control Legislation; university of Chicago law Review,1970.

[viii] The Impact of State Constitutional Right to Bear Arms Provision on State Gun Control Legislation; university of Chicago law Review,1970.

[ix] Ibid

[x] ibid

[xi] ibid

[xii] The Arms Act, 1959.

[xiii] Ganesh Chandra Bhatt v District Magistrate,Almora;AIR 1993 Al  291

[xiv]Robert Taylor, American Constitutions and the Right to Bear Arms.

1 thought on “Right to Bear Arms as a Constitutional Right: Comparitive Stand-point of the Law in the United States of America and India”

  1. I am of the view that crime rate in India is high BECAUSE there are strict gun laws, not despite of them. Wouldn’t a gun to protect oneself prevent the crime from happening ?

    Thanks for the information though.

    Reply

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