THE RIGHT TO SELF-DEFENSE AND THE RIGHT TO BEAR ARMS: SELF-DEFENSE IS A HUMAN RIGHT; THE RIGHT TO BEAR ARMS IS A LEGAL OPTION/RIGHT
Authors:
Tennyson Samraj
Abstract:
Most citizens would agree that we cannot entrust self-preservation and self-defense to anyone other than oneself. Therefore, many argue that it is necessary to bear arms, for bearing arms makes the weakest and the strongest equals in defending oneself. In 2008 the Supreme Court of the United States of America affirmed the individual’s right to own arms for self-defense (District of Columbia v Heller, 5-4, 2008). There seems to be no alternative basis that can ensure equal defense in self-defense, except by the right to bear arms. One world view posits that to bear arms in self-defense is a human right (Newt Gingrich, 2012), another world view posits that that right to own guns for self-defense is not a human right (SE Smith, Guardian 2016). While the right to self-defense is a human right, the right to bear arms cannot be a human right –it is to be understood as a derivative legal option, right and privilege. In this paper, it is argued that though we cannot prevent the use of force to defend oneself, gun regulations can prevent gun violence. As such there needs to be gun regulation with de jure recognition that includes the following: (1) Gun legislations provide the basis and provision for who can bear arms to protect oneself, (2) Gun legislations define why one can have it, where it is to be held when it can be used to defend oneself and whether it can be used in defending other rights. (3) Gun legislation must ensure a trial when anyone uses arms to kill in self-defense, to ensure that it was indeed done in self-defense. This will ensure the right to self-defense cannot be a pretext to kill anyone. (4) Gun legislatures need to ensure the control of the size, strength and storage of arms for self-defense as a matter of public safety; (5) Gun legislatures must ensure that no individual has power over others in society due to a stockpile of weaponry in the name of self–defense. However, this paper is aware that gun control can only prevent gun violence; as such, it does not attempt to prevent the user from using arms to defend oneself. For no one can be convicted of murder if one kills when one cannot escape or retreat from threat to one’s life.