Right to bear arms

Right to bear arms [weapons] (in India)

• 1931, in Karachi, the Indian National Congress passed the resolution on Fundamental Rights, among them, was the right to bear arms. It said “Every citizen has the right to keep and bear arms in accordance with regulations and reservations made in that behalf.”
• But, Due to the circumstances under which India gained independence and the prevailing volatile conditions (rioting after partition), it was decided not to include the right to keep and bear arms as a fundamental right but to instead recognize it as a legal right of every citizen, but a citizen's right all the same.
• Justice Katju (present chairman of Press Council of India) had written following, in a judgement

Arms before the British Era

• Before the British came to India the situation in our country was that in almost every house there were some arms. Possession of arms was regarded as a sign of dignity and self-respect. Even today in our country in many communities on Dussehra day arms are worshipped, which is symbolic of the respect given to arms in earlier times.
• The Mahabharat, which is the longest and greatest of the epics of the whole world, is full of the use of arms. Thus, Arjun goes to Divya-Lok to get arms from the gods (which he subsequently used in the Mahabharat War). Thus, in our culture the value of arms for leading a life of self-respect and dignity has been accepted.

Arms during British Raj

• When the British came to India they had to face armed resistance from the feudal kings. Due to their technological and organizational superiority they gradually overcome this resistance and spread their rule in India. It was only after putting down the Mutiny of 1857 that the British decided to disarm the Indian people.
• Having been shocked by the sudden, widespread uprising against them they decided that to avoid such revolts in future they must (1) disarm the Indian people (2) divide the Indian people. This policy was implemented so effectively that upto 1947 there was hardly any significant militant uprising against them.
• first comprehensive arms Legislation in India was Act 28 of 1857
• This Act was a temporary measure and it only regulated the import, manufacture, sale, possession and use of arms for two years.
• It was passed when the Mutiny was still going on and it was a hurriedly drafted law with the obvious aim of seeking to put down the revolt.
• The Indian Arms Act, 1878, was intended to disarm the entire nation. Even after independence, the law declaring 'swords daggers, spears, spear-heads, bow and arrows' as 'arms' has been allowed to continue unaltered on the statute book.

Why is right to bear arms Necessary?

• The rigours of the Arms Act and Rules thereunder continue to make it difficult for law abiding citizens to possess firearms for self-defence whereas terrorists, dacoit-gangs and other anti-social or anti-national elements are using not only civilian weapons but also bombs, handgrenades, Bren-guns, Sten-guns, 303 bore service rifles and revolvers of military type, for perpetrating heinous crimes against society and the State!
• The position in our country today is that unfortunately the law and order enforcing authorities are not providing adequate protection to the citizens.
• The result is that the decent, respectable and law abiding citizens are defenceless if a gangster or criminal enters their house with a weapon, or accosts them elsewhere.
• If such criminal enters one's house with a weapon he can loot the entire property there, dishonour the women and do as he pleases because an unarmed person cannot be reasonably expected to put up resistance against a person carrying a gun or revolver.
• If, on the other hand, a person has a revolver or pistol with him he can put up resistance against such criminals.
• Mafia type gangs have established a reign of terror in many cities and violence, kidnapping and extortion are rampant. Some parts of the country are terrorist infested and even in other parts hoodlums with country made weapons are on the rampage! Peaceful and law abiding citizens are often afraid to stir out of their houses after dark or to go to certain places.
• When we interpret an Act we must take into consideration the existing social conditions and we cannot interpret it in a hyper-technical or highly abstract manner which has no connection with the existing social reality.

Article 21

• Article 21 states "No person shall be deprived of his life or personal liberty except according to procedure established by law".
• In my opinion the right to bear arms is embedded in Article 21 of the Constitution and hence it is a fundamental right.
• No doubt this right, like all fundamental rights, is subject to reasonable restrictions, but the reasonability of the restriction must be judged from the point of view of the prevailing social conditions and not in the abstract Hence what may have been reasonable earlier may no longer be reasonable today.

Rights inferred from Article 21

• Maneka Gandhi v. Union of India and in a series of subsequent decisions the Supreme Court has spectacularly widened the scope of Article 21 (and also Article 14) and it is now settled that
• Though Article 21 is couched in negative language, it confers positive rights to life and liberty
• The word 'life' in Article 21 means a life of dignity as a civilised human being and not just animal survival
• procedure for depriving a person of his life or liberty must be reasonable, fair and just
• Thus Article 21 includes within its scope:

1. The right to free education upto the age of 14 years
2. The right to livelihood
3. The right to speedy trial
4. The right to bail without economic restrictions
5. The right to free legal aid to the poor
6. The right to human treatment in prison
7. The right not to be handcuffed, fettered, or put in solitary confinement
8. The right to live with dignity
9. The right against custodial violence
10. The right to shelter
11. The right against unauthorised intrusion into the home
12. The right of effective appeal

Why India should make a liberal gun law?

• When Everyone is holding a gun, Everyone behaves in a civilized manner!
• In the U. S. Constitution there is a specific provision stating that citizens have the right to bear arms.
• There is no similar specific provision in the Indian Constitution.
• In these day when law and order has broken down it is only an armed man who can lead a life of dignity and self-respect. No criminal or gangster can dare to assault or threaten such a person for fear of retaliation. Since the word 'Life' in Article 21 has been held by the Supreme Court to mean a life of dignity (as discussed above), the right to carry non-prohibited fire-arms must be deemed to be included in Article 21.

Licensed weapons will not increase crime

• In my opinion liberal grant of arms licences will reduce crimes and not increase them (as some people imagine). The criminal will be afraid to at lack law abiding citizens if the latter are armed.
• In this connection, I may mention that in the second World War when Germany was about to attack Britain, the British Prime Minister Winston Churchill in one of his famous speeches said to the British people "Arm yourselves and be the men of valour".
• In other words, Churchill recognized the reality that an unarmed person cannot reasonably be expected to be valourous when confronted with an armed criminal!
• Some people apprehend that if there is liberal grant of armed licences arms will be passed on by the licensees to dacoits and other anti-social elements.
• This again is an unfounded apprehension. The criminal already have firearms today (whether licensed or unlicensed). It is the decent, law abiding people who need arms to protect themselves.
• I am taking is a practical view for another reasons. If a person wishes to commit a crime with a weapon he will ordinarily use an unlicensed weapon.
• This is because when shots are fired the chances are that the spent cartridge (or cartridges) will fall on the ground and this can be recovered by the police and by nothing the markings on the spent cartridge the particular weapon from which the bullet was fired can be traced out
• Hence when a person wishes to commit a crime he will in all likelihood use an unlicensed weapon because there are less chances of this being detected and apprehended.

Please note: These are not my views, I have merely copy pasted Justice Katju’s judgement.

Now coming to the

Anti-Arguments: USA gun laws

The Second Amendment of the US Constitution states, simply:

“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.”

• This is a terrible sentence. The best English teachers have not been able to parse it, and the US Supreme Court has not been able to clarify it. In the US, some people argue that the Second Amendment means that all people are allowed to carry all types of weapons at all times.
• They argue that people in rural areas should be allowed to use guns to hunt game.
• In the US, hunting game is a long and historic tradition. Many families teach their sons, and increasingly their daughters, to kill game with a clean shot, during the state-proscribed hunting season, and then to prepare the carcass as food.
• In the inner cities of America, guns are not used for food; they are used to kill people.
• The Colorado massacre (2012) in which, during a midnight screening of the film The Dark Knight Rises A gunman, dressed in body armor, set off tear gas grenades and shot into the audience with multiple firearms, killing 12 people and injuring 58 others.
• It highlights the culture of the US in a very simple way. Individuals sometimes do odd things (like mass slaughter), but that is simply the cost of “freedom.”
• US culture is deeply obsessed with making guns available to all, while making sure that very few have access to mental healthcare.
• And already I am beginning to hear the new narrative: if everyone had been armed, there wouldn’t have been such a tragedy; a good guy would have shot the bad guy, problem solved. So, we wait, until the next “inexplicable” mass tragedy.
• But in the US, guns are political weapons. President Barack Obama offered words of comfort to the nation last week for the Colorado Massacre, but without raising the sticky issue of gun control. Reason? Heavy lobbying and Political funding by National Rifle Association, makes it difficult for any politician of US, to pass strict gun laws.