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Firearm Ownership and Property Rights


Firearm Ownership and Property Rights

Contents


Contents i

Copyright ii

Foreword iii

Introduction iv

What is the basis of the statutory and common law right to own firearms 1

The issue of a licence - Act 75 of 1969 2

The Constitutional State 3

How is the Central Firearms Registry depriving property arbitrarily? 3

What is "Property"? 3

What is "Deprivation"? 4

What is "Arbitrary"? 4

Arbitrary Procedure 4

Requirement for "Need" 5

The policy of the CFR 5

Just administrative action 6

Fitness to possess 6

Change of applicant status 7

Additional licences 7

Rejection based on calibre 8

Privacy invasion by the register 8

End Notes 8

Note 1 8

Note 2 8

Note 3 10

End Note References 10



Copyright


Firearm Ownership and Property Rights,

Brett Nortje - Appeal submission,

Editor - Peter Moss {Moderator SAFF}

Foreword


The right to firearms ownership might be difficult for some to understand but throughout the history of South Africa this right has been recognised. In more ways than one it has been enshrined in agreements, treaties and legislation. The Dutch settlers who landed in South Africa in 1652 came from a background and history of firearm ownership and the right to possess firearms. This right was not extended to indigenous people. However the rights of indigenous people to possess their cultural arms of recreation, hunting, self-defence and warfare has never been infringed either.


The current spate of propaganda by government and fanatical anti-gun lobby organisations has placed some doubt in the public mind, such that firearm owners themselves have begun to doubt that such a right exists. This plays directly into the hands of a government that is intent on unjustified and immoral disarmament of law-abiding citizens.


The police, and in particular the Central Firearms Register, have assumed powers they do not have at the command of their political masters. Proving that they no longer deserve the respect of the public in remaining independent of government interference and applying the law. Rather they have polluted the highest position reserved for parliament by dictating requirements of licence application that are not required by legislation and refusal of applications not based on current law. This is further expanded by new legislation that not only seeks to disarm but also has every intention of infringing on property rights by logical sleight of hand. This will set a trend, if allowed to take place that can be applied to all property - thus endangering one of the cornerstones of the Constitution the right to own property.


A large debt is owed to Brett Nortje for the research and legal opinion in putting together the history of the right to firearm ownership in South Africa. Originally written as a successful appeal to licence refusal on the grounds that a need was not shown. This research is invaluable to those facing similar refusals and for future reference to countering the propaganda of organisations with no respect for the rights of others. These organisations claim that the right to firearms ownership is not a right. It is.


--Editor


Firearm Ownership and Property Rights



Introduction


Legislation is the bricks and mortar of law. The constitution is the supreme law in a constitutional state. The foundation of the law is Roman Dutch common law.


During the era of parliamentary supremacy our constitutional law was legislation and received British constitutional law. There is an unbroken chain of gun rights, from English and Roman Dutch common law to the administrative justice and property clauses of the constitution. The police line of privilege, not right, is incorrect, and just carried because parliament could abrogate any common law and statutory rights by legislation.


It must be understood, when government, police or anti-gun lobby spokespersons say that there is no constitutional protection of gun ownership that is not correct. S39 (3) of the constitution says that all common law and statutory rights continue to exist, that in interpreting the Bill of Rights courts will have to look at foreign law like the US constitution, and that the constitution protects all our rights, even if not mentioned by name. - Brett Nortje




Firearm Ownership and Property Rights


What is the basis of the statutory and common law right to own firearms


  • Dutch and English common law.


  • Both English and Dutch common law permitted the ownership of firearms for self-defence. The right to bear arms predates the Magna Carta and the English Bill of Rights of 1689 [Note 1] made firearms ownership mandatory [Note 2]. Owning firearms was mandatory in the Boer Republics.


  • The Articles of Peace encapsulated in the treaty signed at Vereeniging on 31 May 1902 which guaranteed the right to possess firearms.


  • Act no 10 of 1907. The Arms and Ammunition Act was enacted in accordance with the treaty, to give legislative effect to the Right to Bear Arms negotiated at Vereeniging. Agreement regarding enactment of this legislation was a pre-requisite to the signing of the Articles of Peace. DE VREDESONDERHANDELINGEN TUSSCHEN BOER EN BRIT IN ZUID - AFRIKA Ds JD KESTELL EN DE VAN VELDEN JH DE BUSSY PRETORIA - AMSTERDAM 1909 p135-147


  • The South Africa Act of 1909 created the legislative framework for South African Union. South African constitutional law after Union was received from the Westminster system of government. The most noteworthy characteristic of Westminster is the doctrine of supremacy of the legislature.


  • The right to own firearms survived the era of parliamentary supremacy substantially more intact than most other generally accepted individual rights like the right to freedom of speech, the right to physical integrity and security of the person etc. The only right guaranteed in the Vereeniging Peace Treaty to survive the era of legislative supremacy more intact was the clause guaranteeing the equality of English and Afrikaans.


  • Section 135 of the South Africa Act provided that laws in force in the colonies at establishment of the Union continued in force until repealed by Parliament


  • S148 (1) of the South Africa Act provided that all rights and obligations under any conventions or agreements which are binding on any of the colonies shall devolve upon the Union at its establishment. This obviously included all the Rights guaranteed in the Vereeniging Peace Treaty and is very similar in effect to section 39(3) of the 1996 Constitution. In effect, the right to bear arms guaranteed at Vereeniging to the inhabitants of Transvaal and the O.F.S. was guaranteed to the inhabitants of the other provinces as well.


  • Part 10 (S152) of the South Africa Act provided that parliament may by law alter any of the provisions of the Act - well, parliament never abrogated the right to own firearms until the enactment of the 1996 Constitution, so it survives intact.


  • The 1937 Act served merely to consolidate the various gun laws in force in the four provinces.


  • The 1969 Act instituted the Central Firearms Register. Registration of firearms was taken away from Justice. Licenses were no longer issued by magistrates but by the Police.


The Treaty of Vereeniging requires simply that one apply for a license in the prescribed manner. The 1907 Act, (Act no 10, Arms and Ammunition Act), the 1937 Act (that consolidate various laws in force in provinces) and the 1969 Act (that instituted the Central Firearms Register) all describe "the prescribed manner" - they do not deny the right.



The issue of a licence - Act 75 of 1969


S 3(1) of the Arms and Ammunition Act, 1969 (Act No 75 of 1969) reads as follows: "On application in the prescribed manner and payment of the prescribed license fee in the said manner by any person other than a person under the age of 16 years or a disqualified person, the Commissioner may, in his discretion but subject to the provisions of subsections (3), (4) and (6) and sections (7) and 33(2), issue to such a person a license to possess the arm described in such license."


This is a peremptory [authoritative, commanding] provision. The intention of the legislator in drafting the 1969 Act is clear. The legislator attempted to give effect to the historical right of South Africans to bear arms while at the same time giving the Commissioner a narrow discretionary power to deprive those people the Commissioner might deem it not in the public interest (and not for arbitrary reasons) to have firearms. The aim of the Act is to prohibit possession of unlicensed firearms.


The Act says that the Commissioner 'may issue' licenses 'in his discretion' 'but subject to' very strict guidelines - the Commissioner has a very narrow discretion.


Most of the guidelines [of Act 75 of 1969 S3(1)] subject to which the Commissioner could exercise his discretion have fallen away because they were unconstitutional.


The guidelines in the Act under which the Commissioner could exercise his discretion by referring certain classes of application to the Minister were:

  • race qualifications (deleted and unconstitutional)Ss 3 and s33(2) special classes of firearms (which is probably unconstitutional under the equal protections clause etc)

  • Ss 6 arbitrarily limits the amount of firearms one may own (which is in conflict with s25 of the Constitution because it allows for an arbitrary deprivation of property on a numerical basis, has never been applied by the Register and

  • Arms without identifying marks.


There is no requirement to prove or show a need and the right of ownership is not denied.


In S v Motaung 1981 (1) SA 145 BH the Court stated: "Die doel van die Wet is duidelik en ondubbelsinnig en dit is om die onwettige besit van 'n vuurwapen te verbied." [The purpose of the law is clear and unambiguous and that is to forbid the unlawful possession of a firearm. - Ed]


[In requesting that applicants show a need] The Central Firearms Register is ultra vires the Act - which narrowly circumscribes the criteria subject to which the Commissioner of Police exercises his discretion in issuing firearms licenses - by requiring that applicants prove a need to possess a firearm. There is no mention of need in the Act.


The Register has refused license applications with an ulterior purpose. It is the unlawful object of the Register to curtail the legal possession of firearms, which is arbitrary and capricious.



The Constitutional State


The constitutional state is expected to act in a rational manner. It should not regulate in an arbitrary manner or manifest "naked preferences" that serve no legitimate governmental purpose, for that would be inconsistent with the rule of law and the fundamental premises of the constitutional state. The purpose of this aspect of equality is, therefore, to ensure that the state is bound to function in a rational manner. This has been said to promote the need for governmental action to relate to a defensible vision of the public good, as well as to enhance the coherence and integrity of legislation.


In Mureinik's celebrated formulation, the new constitutional order constitutes "a bridge away from a culture of authority... to a culture of justification". - Prinsloo v Van der Linde 1997 (3) SA 1012 CC.



How is the Central Firearms Registry depriving property arbitrarily?

What is "Property"?


According to AJ Van Der Walt (The Constitutional Property Clause 1997 p 65) licenses and permits will be property if they are vested in the claimant and if they are regarded as valuable assets. Firearms certainly are valuable assets.


What is property? Property at least encompasses the real rights recognised by the law of property such as the right of ownership, according to De Vaal, Currie and Erasmus in "The Bill of Rights Handbook" page 384. Protecting the right to own property in a constitution is meaningless if the acquisition of property is not protected.



What is "Deprivation"?


Deprivation means the state leaves property in private hands but restricts its use. The deprivation power must be exercised in accordance with law and due process.


In Harksen v Lane NO 1998 (1) SA 300 CC the Constitutional Court found that expropriation means the compulsory acquisition of rights in property by a public authority - an appropriation of those rights by the expropriator.


According to De Vaal et al, a deprivation will be unlawful if its effect is to allow 'arbitrary' deprivations of property (389). Arbitrary action has been described in South African administrative law as action that is 'capricious or proceeding merely from the will and not based on reason or principle' Beckingham v Boksburg Licensing Court 1931 TPD 280.


De Vaal Currie and Erasmus state that the non-arbitrariness requirement of s25(1) insists that a law that deprives someone of property is not arbitrary in its substance. "Substantive due process means that a deprivation of property must be valid in substance. The constitutional state is expected to act in a rational manner. It should not regulate in an arbitrary manner or manifest 'naked preferences' that serve no legitimate governmental purpose - that is inconsistent with the rule of law and the fundamental premise of the constitutional state" (390).


Deprivation of firearms means property rights are simply extinguished.

The government will argue that no compensation is payable in terms of section 25 of the Constitution, because the deprivation does not amount to compulsory acquisition of property - the state would not be acquiring those excess guns.


It is possible for the government to apply this to any property and every single form of property can be alienated in this way - cars, farms and as has recently occurred - mineral rights. All property is now at risk, which makes the constitutional protection of property rights meaningless.



What is "Arbitrary"?


According to De Waal, Currie and Erasmus in the Bill of Rights Handbook p 389 - 394 "arbitrary means, to put it at its simplest, irrational - the measure does not serve a legitimate purpose".


The deprivation is not taking place in accordance with law because the Register ignores common law and statutory right to own firearms.



Arbitrary Procedure


Procedural due process means that deprivation of property must follow fair procedures.


Deprivation should be in accordance with clear and fair procedures. Where a discretionary power of deprivation of property is conferred by legislation, that power will be arbitrary if there is insufficient or inadequate legal criteria to govern its exercise.




As an act by the Register can at the same time constitute an arbitrary deprivation of property because it fails procedural due process standards as contemplated in s25 of the Constitution a failure of just administrative action as contemplated in section 33 of the Constitution, and unlawful and unreasonable administrative action at common law distinguishing arbitrary procedure from unconstitutional administrative action and from unlawful administrative action for reason of this appeal is pointless.


The Constitution prohibits unlawful administrative action.



Requirement for "Need"


The Register has shown no good reason for attempting to limit the statutory and common law right to own arms by requiring that applicants show a need to possess a firearm. There has been no, nor can there be, any justification for demanding proof that applicants need a firearm before giving effect to the rights entrenched in the Articles of Peace, which became part of our law, and which are included in the Act. The Register has arrogated to itself the position of deciding which of the legitimate preferences of free, law-abiding people are justified.


If there is a problem involving crime committed with firearms, or people abusing firearms and victimising others, the Commissioner should not administratively abrogate a guaranteed right by regulation but enforce existing laws not inconsistent with the Constitution.


If there is a problem with law enforcement, the administration should channel its resources into enforcement of existing laws.


"The state is bound to function in a rational manner [Note 3]. This has been said to promote the need for governmental action to relate to a defensible vision of the public good, as well as to enhance the coherence and integrity of legislation". - Prinsloo v Van der Linde 1997 (3) SA 1012 CC.



The policy of the CFR


In Maloka v Chairman, Central Road Transportation Board 1991 1 PH F.8 BOP the court held that there was nothing wrong with the Board being guided by a policy in its discretion, but that it was a component and requirement of natural justice that the Board must advise the applicant of its policy.


The CFR does not provide a concrete policy stating that one has to prove the need for a firearm, showing:

  • How or why the policy came about,

  • What the policy is,

  • How it applied its mind in drafting such a policy,

  • If it is a policy in writing, or even

  • That it in fact has such a policy in place.


The Register has made no attempt to show that it applied its mind in drafting a policy in terms of which applicants have to show that they need a firearm.


The Register has made no attempt to show that the policy is not an unstated policy existing merely in the mind of a few officials at the Register.


Clearly, the Register's policy - if it exists - is 'capricious or proceeding merely from the will and not based on reason or principle'.


The only inference to be drawn is that the Register has a political motive for abrogating rights that have been honoured by the State for a century. The Register manifestly shows a "naked preference" for gun control and infringes on rights to no legitimate government or social purpose.


Instructions seem to have been given at the CFR that an increasing amount of license applications have to be refused for the reason "lack of motivation/not convinced of need". If instructions have been given to refuse more licenses under this pretext, this would clearly amount to a prejudgement of the issue, which is arbitrary, contrary to the rules of natural justice and a substantial failure of administrative justice as contemplated in S33 of the Constitution.


This requirement of policy disclosure if such policy exists has been brought to the attention of the Appeal Board previously.



Just administrative action


S 33(1) [Of the constitution] Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.


Schedule 6 (Transitional Provisions) Bill of Rights,

Section 33(1) and (2) must be read as:

Every person has the right to-

  1. lawful administrative action where any rights or interest is affected or threatened

  2. procedurally fair administrative action where any right is threatened

  3. be furnished with reasons in writing for administrative action which affects any of their rights or interests unless the reasons for that action have been made public; and

  4. Administrative action which is justifiable in relation to the reasons given for it where any of their rights is affected or threatened


'Reasonable Administrative action' entails administrative action within a reasonable period of time.



Fitness to possess


Section 3(1) of the Arms and Ammunition Act, 1969 (Act No 75 of 1969) reads:

On application in the prescribed manner by any person other than a person under the age of 16 years or a disqualified person, the Commissioner may, in his discretion but subject to the provisions of subsections (3), (4) and (6) and sections (7) and 33(2), issue to such a person a license to possess the arm described in such license.


The 'fitness to possess' criteria in terms of the Act is an ongoing procedure throughout the lifetime of the license-holder-firearm relationship (because the status of the license-holder can change - he can become 'disqualified'). Once it has been determined that the applicant is still a fit and proper person to possess firearms - which can be ascertained merely by typing an ID number into the first field of the software the Register uses - that license application should be fast-tracked.



Change of applicant status


If the status of the applicant has changed - if the applicant has, hypothetically, committed a violent crime and has been disqualified through due process of the law from owning firearms - it is negligent of the Register not to have a mechanism in place to immediately display his changed status and, hopefully, dispossess him by due process in terms of the Act of the firearms he has in his possession).


Government Notice R 786 regulates the administration of the Act. In Part V, section 16 describes the Register that must be kept. S16 reads: "The Register to be kept in terms of section 42 of the Act (called the Central Arms Register) shall, subject to the provisions of that section, be a record of:

  1. applications for licenses, permits ....;

  2. licenses ... to possess ....;

  3. persons declared unfit to possess arms;...."



Additional licences


The only new information the Register has to process is the make, calibre and serial number of the firearm. To require that someone repeat exactly the same procedure when acquiring a second or more firearms serves no legitimate purpose and is onerous, time-consuming, unreasonable, irrational, wasteful, arbitrary and a substantial failure of administrative justice as contemplated in the Constitution.


Not expediting applications from existing license-holders - who have previously shown and continue to show that they are not disqualified from owning firearms, whose personal records listing sometimes intimate details are already in the possession of the register, - and making them go through the same administrative checks as first-time applicants is unreasonable, inefficient and a substantial failure of administrative justice.


The Register only observes Chapter 10, section 195 of the Constitution, which regulates the basic values and principles governing the public administration, in the breach. At the very least these applications should be fast-tracked.


The register disregards the way the Legislature guided judicial interpretation and the exercise of the Commissioner's discretion in S39 - the offences and penalties part of the Act.



Rejection based on calibre


The Legislature clearly regarded (in Ss (2)(a)(i)) possession (even illegal possession) of certain classes of weapons like .22 and .410 calibre weapons as less officially noteworthy than possession of larger calibre fire-arms, because there are different sentencing guidelines.


If the Commissioner is not granting licenses for smallbore firearms more readily than other firearms we are obviously dealing with an unreasonable exercise of his discretion.



Privacy invasion by the register


The keeping of a register listing what firearms owners possess prima facie constitutes the delict 'intrusion' and is an invasion of the privacy guaranteed in section 14 of the Constitution.


Section 14 of the Constitution confers a general right of privacy. With regard to the sale of pornography Judge Didcott wrote in Case v Minister of Safety and Security 1996 3 SA 165 CC: "What erotic material I may choose to keep within the privacy of my home, and for my personal use there, is nobody's business but mine. It is certainly not the business of society or the state". It is contented that exactly the same ratio applies regarding the legal sale and possession of firearms.


___________________________________

End Notes

Note 1

"The English elite had just succeeded in ousting the Catholic King James, who had offended the Protestant Church of England by aggressively promoting the Roman Catholic religion, in spite of laws that Parliament had passed. William of Orange and his wife Mary were crowned King and Queen of England (Mary was actually the daughter of the deposed King James II) in Westminster Abbey on April 11, 1689. As part of their oaths, the new King William III and Queen Mary were required to swear that they would obey the laws of Parliament. At this time, the Bill of Rights was read to both William and Mary. "We thankfully accept what you have offered us," William replied, agreeing to be subject to law and to be guided in his actions by the decisions of Parliament. The Bill was formally passed through Parliament after the coronation. On December 16, 1689, the King and Queen gave it Royal Assent which represented the end of the concept of divine right of kings."


Note 2

II. Wrenching Freedom from the King

The 1689 English Bill of Rights and the Right to Arms,

ALL THE WAY DOWN THE SLIPPERY SLOPE: GUN PROHIBITION IN ENGLAND AND SOME LESSONS FOR CIVIL LIBERTIES IN AMERICA - Joseph E. Olson[1] and David B. Kopel[2]


It began as a duty, operated as a mixed blessing for Kings, and wound up as one of the "true, ancient, and indubitable"[5] rights of Englishmen. From as early as 690,[6] the defense of the realm rested in the hands of ordinary Englishmen. Under the English militia system, every able-bodied freeman was expected to defend his society and to provide his own arms, paid for and possessed by himself.[7] It appears that the wearing of arms was widespread. The only early limitations placed on gun possession were for the misuse of arms by appearing in certain public places "with force" under a 1279 royal enactment[8] or by using them "in affray of the peace".[9] These limitations were construed to prohibit only the possession of arms "accompanied with such circumstances as are apt to terrify the people"[10] but not the mere "wearing [of] common weapons" for personal defense.[11]




The Tudor monarchs tried to prevent hunting with crossbows, and later with firearms, by commoners by setting a minimum annual income from land as a condition of hunting, or of possession of crossbows and handguns.[12] They were unsuccessful and, after first liberalizing the prohibitions, Henry VIII's government repealed them in 1546.[13] As the Tudor era ended, individual armament (typically with long bows) and an individual obligation to serve in the militia was the norm for Englishmen. Historians view the widespread individual ownership of arms as an important factor in the "moderation of monarchial rule and the development of the concept of individual liberties"[14] in England during a period when absolute, divine-right royal rule was expanding as the norm in continental Europe.[15](p.402)


In the period leading up to the Glorious Revolution, the Stuart monarchs adopted a radical policy of personal disarmament toward those who politically threatened their royal prerogatives. This included the militia of armed freemen as well as direct political rivals. Through a series of parliamentary enactments, they tried registration of possession, registration of sales, hunting restrictions,[16] possession bans ostensibly aimed at controlling illegal hunting, restrictions on personal arms possessed by the militia,[17] warrantless searches, and confiscations.[18] By 1689, the Stuart monarchs had succeeded, not at full disarmament, but at alienating their "allies" as well as their opponents and losing their throne in a bloodless revolution.


When William of Orange and Mary arrived to begin their reign on England's throne, the country's political leaders recognized the need to rein in any tendency of the new monarchs toward the excessive royal power the nation had just suffered under James II. Thus, William and Mary were required to accept a "declaration of rights" as a definitive statement of the rights of their subjects. That declaration was later enacted as the Bill of Rights.[19] The Declaration of Rights was prepared in great haste, limited to noncontroversial matters, and viewed as a statement of the existing rights of Englishmen. It contained only two individual rights applicable to the general public: to petition and to arms. Furthermore, it only effectively limited the monarch, not the Parliament. Even though the Bill of Rights was by its terms to be upheld "in all times to come", nothing one Parliament does can constrain the actions of subsequent Parliaments.[20] That was the problem with the Bill of Rights being enacted as statute, however important a statute. The Anglo-American legal world would not implement a genuine constitution until 1776, when newly-independent Virginia created her first.


The experience under the Stuarts, demonstrating the political uses of disarmament, convinced many in the Convention Parliament that there was great danger to the security of English liberties from a disarmed citizenry.[21] In Commons, member after member complained about the loss of liberty (p.403)they had personally suffered when disarmed of their private arms by actions "authorized" under the 1662 Militia Act, the 1671 Game Act, and various other laws. Since the new monarchy was to be a limited one, the members saw both a personal and national interest in the ability of ordinary Englishmen to possess their own defensive arms to restrain the Crown. After much discussion and numerous revisions, the right to arms evolved into a statement that "the Subjects which are protestants may have Arms for their Defense suitable to their Conditions and as allowed by law."[22] Historian Joyce Lee Malcolm concluded that:

[t]he last-minute amendments that changed that article from a guarantee of a popular power into an individual right to have arms was a compromise forced on the Whigs. The vague clauses about arms "suitable to their conditions and as allowed by law" left the way open for legislative clarification and for perpetuation of restrictions .... But though the right could be circumscribed, it had been affirmed. The proof of how comprehensive the article was meant to be would emerge from future actions of Parliament and the courts.[23]

By the time of the American Revolution, legislation and court decisions had made it clear that Englishmen had a real right to possess arms,[24] even during times of turmoil such as the anti-Catholic Gordon riots in London in 1780. The Recorder of London, the equivalent of a modern-day city's general counsel, gave this opinion in 1780:

The right of his majesty's Protestant subjects, to have arms for their own defense, and to use them for lawful purposes, is most clear and undeniable. It seems, indeed, to be considered, by the ancient laws of this kingdom, not only as a right, but as a duty; for all subjects of the realm, who are able to bear arms are bound to be ready, at all times, to assist the sheriff, and other civil magistrates, in the execution of the laws and the preservation of the public peace. And that right, which every Protestant most unquestionably possesses, individually, may, and in many cases must, be exercised collectively, is likewise a point which I conceive to be most clearly (p.404)established by the authority of judicial decisions and ancient acts of parliament, as well as by reason and common sense.[25]


Blackstone's celebrated treatise lauded the individual right to arms as one of the "five auxiliary rights of the subject", and explained that the right was for personal defense against criminals, and for collective defense against government tyranny.[26] He further explained that "in cases of national oppression, the nation has very justifiably risen as one man, to vindicate the original contract subsisting between the king and his people".[27] The Englishman's boast that he and his countrymen were "the freest subjects under Heaven" because he had the right "to be guarded and defended ... by [his] own arms, kept in [his] own hands, and used at [his] own charge under [his] Prince's Conduct"[28] was true. This did not mean, of course, that Englishmen enjoyed perfect civil liberty, as those in the United States frequently pointed out. Englishmen did, however, enjoy much greater freedom and participation in government than did the people of Continental Europe, and it was England's conventional wisdom that the freedom of the English people was closely tied to their right to possess arms, and thereby deter any thought of usurpation by the government.


From the day when the Stuarts fled to France, there were virtually no restrictions on an Englishman's right to own and carry firearms, providing that he did not hunt with them, for the next two centuries. The only notable exceptions were the Seizure of Arms Act and the Training Prevention Act, which banned drilling with firearms and allowed confiscation of guns from revolutionaries in selected regions.[29] The Acts were the product of social unrest related to the Industrial Revolution, climaxing in the 1819 Peterloo Massacre, in which government forces killed unarmed demonstrators. The Acts expired by their own terms in 1822. Even while the 1819 Acts were in force, the case of Rex v. Dewhurst explained that the "suitable to their condition" clause in the Bill of Rights's "Arms for their Defense" guarantee did not allow the government to disarm "people in the ordinary class of life."[30](p.405)


Note 3

Courts are entitled to test whether there is a rational connection between the differentiation in question and the legitimate governmental purpose that it is designed to further or achieve." - Harksen v Lane NO 1998 (1) SA 300 CC.


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

End Note References


[1] Professor of Law, Hamline University School of Law, St. Paul, Minnesota. J.D. (Dist.) 1970, Duke University School of Law; L.L.M. 1981, University of Florida Law Center. The authors would like to thank Derek Bernard, David Caplan, Brannon Denning, and Don Kates for helpful comments.

[2] Adjunct Professor of Law, New York University School of Law; J.D. 1985, University of Michigan (M.C.L.); Research Director, Independence Institute, Golden, Colorado, http://i2i.org. Parts of this Essay are revised from material in David B. Kopel, Gun Control in Great Britain: Saving Lives or Constricting Liberty (1992) and David B. Kopel, The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies? (1992) (named Book of the Year by the American Society of Criminology, Division of International Criminology).


~~~~~


[5] See 1 W. & M., ch. 2 (Eng.); Hannis Taylor, The Origins and Growth of the English Constitution 415-17 (4th. ed. 1896).

[6] See David Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 3 Harv. J.L. & Pub. Pol'y 559, 562 (1986).

[7] See id. at 563-65. The word "militia" was not created until Elizabethan times, around 1590, although the system of popular defense had existed in some form for approximately a thousand years. The fact that most able-bodied males had national or local defense obligations, using weapons supplied by themselves, should not be taken to suggest that everything about military service was egalitarian. Feudalism was anything but. See, e.g., Michael Rhys Powicke, Military Obligation in Medieval England: A Study in Liberty and Duty (1962).

[8] 7 Edw., ch. 2 (Eng.).

[9] 2 Edw. 3, ch. 3 (Eng.). This "Statute of Northampton" reiterated the prohibition on misuse by those who "go or ride armed by day or night" in certain public locations. See id.

[10] 1 William Hawkins, Pleas of the Crown 267 (6th ed. 1788)

[11] Rex v. Knight, 87 Eng. Rep. 75 (K. B. 1686).

[12] See 19 Hen. 7, ch. 4 (Eng.); 6 Hen. 8, ch. 13 (Eng.).

[13] See 33 Hen. 8, ch. 6 (Eng.). See generally, Ralph Payne-Gallwey, The Book of the Crossbow 31-37 (1995).

[14] Hardy, supra note 6, at 570.


[15] See, e.g., Sir John Fortescue, On Government (approx. 1497).

Thai [the French peasants] gon crokyd, and ben feble, not able to fight, nor to defend the realm; nor thai haue wepen, nor money to bie thaim wepen withall. But verely thai liven in the most extreme pouertie and miserie, and yet dwellyn thai in on the most fertile reaume of the worlde. Werthurgh the French kynge hath not men of his owne reaume able to defende it, except his nobles, wich beyren non such imposicions, and ther fore thai ben right likely of their bodies; bi wiich cause the said kynge is compellid to make his armeys and retinues for the defence of his lande of straungers, as Scottes, Spaynardes, Arrogoners, men of Almeyn [Germans], and of other nacions, or ellis all his enymes myght ouerrenne hym; for he hath no defence of his owne except his castels and fortresses. Lo, this is the fruit of jus reale. Yf the reaume of Englonde, wich is an Ile, and therfor mey not lyghtly geyte succore of other landes, were rulid under such a lawe, and under such a prince, it wolde then be a pray to all other nacions that wolde conquer, robbe or deuouir it.

Id.

[16] See Game Act of 1671, 22 & 23 Car. 2, ch. 25 (Eng.).

[17] See Militia Act of 1662, 14 Car. 2, ch. 3 (Eng.).

[18] See Hardy, supra note 6, at 571-79. See also Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (1994).

[19] See 1 W. & M., ch. 2 (Eng.).

[20] James Madison's greatest insight as he prepared America's written Bill of Rights was that there is as much threat to liberty from a popularly elected legislature as there is from a monarch. See Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 290 (1996).

[21] See generally Malcolm, supra note 18.

[22] See 1 W. & M., ch. 2 (Eng.).

[23] See Malcolm, supra note 18, at 121. Part II of this Essay is meant only to give a brief summary of the legal foundation of the English right to arms, and not to trace the complexities of its development during the Stuart period. For readers who want the full story, Malcolm's book is superb, as United States Supreme Court Justice Scalia has recognized. See Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 136-37 (1997). For a critique of Malcolm's argument that the Convention Parliament created a right to arms, rather than recognizing a traditional right, see David B. Kopel, It Isn't About Duck Hunting: The British Origins of Right to Arms, 96 Mich. L. Rev. 1333 (1995). For a response to Carl Bogus's assertion that the 1689 Bill of Rights did not recognize any individual right to arms, see David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. Rev. 1359, 1523-24 (1998).

[24] See, e.g., Rex v. Gardner, 87 Eng. Rep. 1240 (K. B. 1739).

[25] William Blizard, Disultory Reflection on Police: With an Essay on the Means of Preventing Crimes and Amending Criminals 59-60 (London, 1785).

[26]

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 1 W. & M. st. 2 c. 2, and it is indeed, a public allowance under due restrictions, of the natural rights of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

1 William Blackstone, Commentaries on the Laws of England *143-44 (1979) (1765).

[27] 4 Blackstone, Commentaries *82.

[28] Malcolm, supra note 18, at 3 (quoting State Tracts: Being a Further Collection of Several 1 Geo. 4, ch. 47 (Eng.). The Act applied only in two cities and eleven counties that Choice Treatises Relating to Government From the Year 1660 to 1689, at 225 (London, 1692)).

[29] were thought most vulnerable to sedition. See id.

[30] Rex v. Dewhurst, cited in 1 John MacDonell, Ed., Reports of State Trials, N.S. 529-608 (1820)).


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