ALOK PRASANNA writes from Hyderabad: Of the many pieces of colonial legislation that still stay with us today, the Arms Act is one that is perhaps most “colonial” in nature. In its present form, the Arms Act of 1959, which is pretty much a copy of the older Raj-era legislation, prohibits the possession, acquisition and bearing of guns without a license.
On the face of it, it seems a fairly reasonable thing. Who can possibly argue that we need to de-regulate the possession, acquisition, etc of arms?
Presenting Judge Alex Kozinski, chief judge of the US court of appeals in the ninth circuit.
A maverick in his own right, Judge Kozinski is well known for his judgments in intellectual property law, constitutional law and competition Law, but one judgment of his in particular struck me as I read it. More specifically, a couple of passages in his dissenting opinion in the case of Silviera v. Lockyer where he makes a fascinating non-legal argument against State control of gun ownership.
“…the simple truth-born of experience-is that tyranny thrives best where government need not fear the wrath of an armed people. Our [American] own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks’ homes for weapons, confiscated those found and punished their owners without judicial process….
“All too many of the other great tragedies of history-Stalin‘s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few-were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece… If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.
“… few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed-where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.”
If we examine major events in Indian history, we can begin to appreciate his argument. After the experience of the 1857 Revolt, the colonial regime obviously did not want us natives to get our hands on too many weapons which we could use to threaten the regime.
The Arms Act of 1878 was one way of depriving Indians the means to attack and challenge an oppressive and exploitative regime. This becomes even more obvious when we see that the same restrictions do not apply to “Europeans” living in India. This was not a unique Indian experience as the native populace was routinely disarmed by the victorious colonisers.
When we attained Independence, through mostly peaceful means, the Government thought it fit to continue this colonial policy, albeit without the discrimination between Indians and Europeans. The Indian state was supposed to be the sole wielder of violent force, and would use it to come to the defence of the weak and oppressed against their enemies.
Why do you need guns when you got the police?
Unfortunately, we have seen that it is not so. We have seen the State take the side of the oppressors against the oppressed. We have seen the State actively disarm threatened minorities (Sikhs in Punjab, Muslims in Gujarat,), and idly stand by as atrocities are committed by a rampaging mob (against Dalits).
Generally, violence of any sort in India is almost inevitably mob violence. It is rarely, if ever, the single maniac, or a single serial killer. Generally, it is not even called “violence” until the other side hits back. That is when “agitations”, “movements”, etc become “warfare”, “riots” and the like.
Guns are a great “force multiplier”, to use military terms. As we have repeatedly seen, a single volley of bullets is usually enough to disperse an otherwise dangerous and angry mob.
Should we therefore give our citizens the means to defend themselves against not just against the hate-mob but also the State itself?
When we know the partisan role the police have played in riots and mob violence, can we trust them with regulating the one means of defence the weaker side has in times of violence?
Would mobs think twice about using their sheer numbers to unleash violence when they know that the response will be equally bloody and violent?
Is it time to say “Hasta la vista, baby” to the Arms Act?
Also read: A gun owner who takes a similar line of argument as Judge Kozinski
Absolutely not!
Thanks, Alok Prasanna, for your nuanced and provocative article.
Chief Judge Kozinski writes that “the Second Amendment is a doomsday provision,” which, even though it sounds vague, is clearly the best defense of any law that protects or allows free gun ownership.
But would such a law work for India? I think not:
1. Except for the Supreme Court of India in the 1970s and part of the 80s, our courts have arguably never shown any passion to protect individual liberties. Rather, they tend to take an ad-hoc balancing approach on most social and religious issues, sometimes (sadly) in spite of the Constitution of India which is our great bulwark against fascism.
India’s judges, sensitive to political winds, tend to be relatively timid — they are unable to even inspire the government to implement successive reports of the Law Commission of India! Just look at the backlog of cases, especially civil cases. It is shameful. An affront not just to justice but to the dignity of individual litigants. Look how easily the Rajiv Gandhi government abused its brute majority in Parliament to insult the Supreme Court by passing the clearly unconstitutional Muslim Women Act of 1986. The apex court did nothing to correct that.
Chief Judge Kozinski is a libertarian superstar of the largest appellate court in the federal judiciary with some 50 judges (minus one who died a few days back). Conservatives detest him as an “activist” often out of step with the U.S. Supreme Court. But his court is quick and steady in its interpretation of both the U.S. Constitution as well as the common law. India has few superstar judges like Kozinski. India has no courts the size or activity of the Ninth Circuit. India has few actively libertarian (but lots of timid) judges.
2. India is still developing as a “rule of law” society. The revolutionary sparks are no longer nascent — Naxalism, religious fundamentalism, illegal mining, looting of forest/wildlife wealth, linguistic chauvinism, destruction of public/private property, bullying of rural populations, etc. These are all serious challenges to the rule of law. Allowing free gun ownership would do more bad than good in this situation.
Pingback: Heights of stupidity at Churmuri « Entertaining Research
Guns without licence is like a licence to kill. If the intention is to use it as a deterrent against violence, a person can take the trouble to get a licence. Free access may encourage actual use …I mean unwarranted use. A mob usually does not think straight…it merely acts and that too in a frenzy. If guns become common place, they (mobs, violence perpetrators) will come prepared with bombs.
No Way. A person should have access to a fire arm only with a license. Free access to guns is a sure shot recipe for anarchy. This is a definite no no.
yep, gonna get me a gun, some bucks been looking at me cross-eyed, gonna show ’em a thing or two, blam blam, take that you varmits, make my day, etc. can’t let them ‘merikans have all the fun, we’s as good as them, probably better, blam blam, draw!
pack a piece for peace, grandaddy always said. you bet, pardner, heidy-ho, giddyup… blam blam
just what we need
TOIlet papernalli figure aagabaeku antha Bengaloorina highflying people parties organise maadi, P3-nalli barthaare. In the same way, churumuri anno IP3-nalli (intellectual page3?) figure aagakke jana what all they think, what all non-issues they bring up. Wah!! Shabhaash!!
Ree Alok, If the biz is dull in H’bad, pls tell us saar. We will do something. This gun-culture and all, not for us saar. If you have too much time on hand, rather than watching too much american presidential election coverage, maybe you should watch some rowdy kannada/telugu movies and think how to “disallow” laangus and machchus in society rather than how to allow gunsoo and riflesoo?
Just because some judge in the US says more guns should be allowed there, doesnt mean we should start applying the same logic in every situation. In the US, to begin with there are lots of guns around (apparently per capita>1). So, chances of a rowdy element having the same is very high. So, it is atleast good for argument’s sake that a common man MAY need to have a gun.
But in India, that is not the case. Our rowdies have primarily laangus and machchus. Our mobs only have laathis. To counter this, all we need is some gundige, dhairya and gandede (male chauvinism not intended). Why give guns to all and sundry and create more problems. As Steven Levitt in Freakonmics puts it “Our homicide rate is much higher in than other countries. It would therefore seem likely that our homicide rate is so high in part because guns are available so easily. Research shows this to be true”.
One or two guns around – and we have mishaps like in Delhi and Bangalore (that too with an airgun!!). Namage yaake saar idara usaabari. Let us argue why and how policemen should be given better gunsoo than why all of us should have such onesoo?. IP3 types must remember that “pens are mightier than guns”!!
No. It doesn’t.
Like Yella ok says, guns are not ok. It is naive to think that large mobs would be stopped by someone having guns. The unintended consequences of this would be far more than the problem this is supposed to solve. Hving firearms might help individuals against burglaries and break-ins to some extent but beyond that, would not be very effective.
Also the argument that this will help in case the law -enforcers are partisan does not hold much water because if they are partisan, the enforcers could use the possession or use, as a pretext to frame the person having the firearm.
Absolute garbage! Guns are not toys and we don’t need to put them in the hands of public without strict regulations.
The timing of this article fascinates me because we saw yet another shooting here in USA last week. I thought only those knee-jerk republicans with NRA memberhip push for more guns after such tragedies. Apparently, I was wrong – there is one in Hyderabad too!
Make it legal and let the whole of India go the way of Bihar. Or the shootouts in universities and public places like in the US.
The government should take strict steps to stop illegal manufacturing of guns in Bihar and UP.
And hopefully no sane person in power will think of passing some hare-brained theory suggested by an idle lawyer/would-be-lawyer as a law!
Totally agree with what most of them have said here, though for different reasons.
Guns? No thanks. We have already thrown Gandhi’s legacy out the window. How worse do we want to get?
Any security that comes from a gun is false security. You buy a 303. Your (potential) enemy gets a muzzle loader. You bid for a M16 until your enemy gets an AK 47… The story will go on.
And imagine one of the guns falling into the wrong hands?
Alok, please do not raise issues only because you need to. Let them be relevant.
Allowing guns without license will benefit the people who sell guns and make money out of it. Since some people may misuse guns, we will need metal detectors in many places. Those who sell metal detectors will be benefitted. To control people who may misuse guns, police will need advanced weapons. Those who sell such weapons will be benefitted.
The United States is a country based on such perverted logic. You may quote some “reputed” judge/writer/researcher, but the basic idea is that they promote the interests of some businesses.
Based on the same perverted logic, high school children in USA get used to pre-marital sex, alcohol, drugs, pornography and guns.
Alok Prasanna, you don’t need to dig the details of colonial laws, jewish holocaust in Germany, Punjab, Gujarat, etc. Put it straight! We want to make money selling guns, drugs, pornograhy, etc. Every Indian will be benefitted because the money will eventually “trickle down”!
The way to go is not by arming everyone but, rather, by disarming everyone, including the government.
This may sound utopian but dream of the day when there wont be the need to carry a gun. That is what we should work for, not a knee-jerk solution.
Gunpowder is good enough. No need for gun
there is no reason why any private citizen should bear any type of lethal weapon of any sophistication.
Owning a gun is a part of the american dream..so is shooting somebody dead with it…I hope India does not emulate this example.
@Mysore Boy
My reaction, when I first read the judgment, was pretty much what you and all others here have said (although I don’t think everything ultimately boils down to a pro-business argument as Bharat seems to suggest).
However, when I looked back upon Sanjay Dutt’s case, I was a bit more sympathetic to the above argument.
He didn’t use the weapons. He and his family were being threatened for being too pro-Muslim during the 1993 riots. The police were not exactly helpful in providing them security cover. He wanted to have some means of self-defence when that mob came through the front gate. Admittedly he bought it from a shady source, but if he could have legitimately bought the gun from an authorized dealer, and none of us would have been any less safer.
I know it is a single example and you can’t draw too much out of it, but my point is that control is not the same as regulation. We also had total economy control, and replaced it with regulation in 1991-96. In a different context, it may not be so bad to trust people with the responsibility of arming themselves.
@gatekeeper
You have pointed out valid concerns, and I admit that they are concerns when one talks about regulating guns. However, I was also trying to address the larger point of violence in society not being the fault of guns or arms, but mobs/dictators/Thackery types who will use brute strength against the weaker people because they can. My point is that while our larger, ultimate goal should be, as you have pointed out, the elimination of the need for guns, in the meanwhile, we cannot sit back and wait for the change to come while allowing all the violence to continue.
I guess the question could also be that instead of gun control, is it saner to have gun regulation?
I think the idea that guns are a defense against a tyrannical government is a hangover from the way the US gained independence, and was probably a strong reason for the 2nd Amendment.
In the present day, they use guns only to protect themselves from criminals and burglars. Even an armed citizenry has no chance against the strongest military in the world, that of USA.
In any case it should never come to that. Because the US democracy works well enough not to be worried about another American Revolution!
I see little benefit in India of guns. But the real libertarian question is, should Govt. have the authority to ban free people from owning guns? I don’t think so.
I would urge that guns be de-regulated in India. But we hardly have the rule of law here, I’m personally quite scared of guns :P
Will allowing guns make India a better country? Yes. The goons in Mumbai and Bihar already have them. Infact, I came to know that they have better weapons than our police. Those who can afford, will find ways to get it anyways regardless of the law, so why create an artificial barrier.
Once our local goons have access to guns, there will be internal clashes among the rowdy groups and more gang members will get shot. The result is less number of criminals alive. A very good way to clean our system.
Somebody should sponsor our KRV and MNS with AK-47, they will help reduce the immigrant people and make life better for localites!
Alok,
The point is you can never have a gun-free world if you are going to use the gun (for whatever reason). You cant say I will own a gun and give it up when others will. People always will have a reason to own (and use) a gun. Tyranny, exploitation, injustice… But the challenge is to deal with them without using guns.
And like you pointed out, what if tyrants like Thackeray and their henchmen, who have already done enough damage, come to own guns more freely? Most Shivsainiks own talwars and hatchets. What if they own guns? After all, it is not just the victim who will buy guns. Even the oppresser will…
Hi Mysore boy,
The muslim women act of 1986 brings a lot of relief to muslim women from a lot of archaic practices. Well do u care if any muslim woman can be divorced with triple talaq, I dont think so. Who takes care of her and her kids after that? This law mandates that the divorced wife get enough for maintanance from her ex-husband – well Rajiv thought about it back in 1986.
Please get ur facts straight before commenting so badly.
well i think India is in the same position as the US… the only difference being the crimes committed here are a lot hush hush than the crimes committed in the US.. how many of you guys have heard of people being robbed in their own houses… throats of our elderly folks being slashed and then the perpetrators going scott free.. and when it comes to owning a license it would be judged that they wouldn’t need any as the police is protecting them and how many times is the police quick to respond ..that is if they know somehow that a crime is already been committed.. how many political parties have taken advantage of the unarmed population in states like maharashtra, gujarat, up just to name a few. why do you think a woman who is walking alone on the street at night has a very high chance of getting raped.. the question being are indians considered to be responsible enough to own personal firearms or are they considered as someone who would not leave a opportunity to shoot someone who they feel are offending them… it’s has been a tradition now that indian people are herded like sheep… politicians telling them what to doand what not to do… indians don’t have a voice of their own… they need someone else to take care of them… they are mere followers of some people who don’t look past themselves… the question here specifically is not about owning a weapon but the responsibility and the trust that your government puts in you… it’s about being able to protect yourself from any danger that a person may come across… there have been incidents where people are being mugged near schools & colleges, where people get raped men and women and even children get killed… so who’s to take responsibility for that…the government obviously wouldn’t and then there is no one to blame coz the offender is hardly caught and even though he might be caught there is a high possibility that nothing would be proved against him…. i think owning guns in india has got nothing to do with making India a better country but to make india a safer place… coz whoever is buying a gun can be tracked down a lot easier than someone who dsn’t have a license for it
Yes! It would make India a MUCH better country and a much better place to live. There are virtually infinite reasons why people must own weapons, not the least of which is to culture freedom and individual responsibility apart from totalitarianism. One cannot have a free society without such responsiiblity; it is simply fooling yourself to think otherwise. Weapons must be readily available with no restriction.
I know of a couple of people,all sikhs living in Delhi during the 1984 anti-sikh riots who owe their survival and that of their families to the guns that they owned and used to kill or scare rioters attacking their homes.
A little known fact is that the Delhi police had registered about a dozen cases against sikhs who had shot dead rioters attacking their residences,including one who had shot dead attackers chasing his daughter-in-law.So guns are not evil.Merely tools that can be used to attack as well as defend.Since the attackers already are armed why leave their victims at their mercy.
When people argue that in case of riots,if people have arms there would be more violence,what they are saying that the victims might retaliate and so the number of dead would go up.Any one so arguing is arguing on behalf of the attacker and defending his life and not that of the victim who is going to be killed in any case(in their minds at least).
As far as Gandhi and non-violence as being the basis for denying Indians guns,he had a very different take on it.I think Gandhi would have approved of Indians being armed.