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28 May 1996
THE RIGHT TO KEEP AND BEAR ARMS FOR LEGITIMATE
PURPOSES
Attached please find an article that I have prepared
publication which clearly illustrates my absolute dismay with way democracy is
practised.
Both the South African Gun Owners’ Association and
myself have made elaborate representations to the Constitutional Assembly
which
were substantiated by a large number of individual representations (14410). All
these people obviously are law abiding citizens.
But just like in the case of
the pro-death penalty representations, they were just brushed aside. It is
clear that the government
wants to have the final say and the absolute power.
The populace cannot be trusted.
Elaborate measures have recently been
announced to curb crime. Mention is also made of more stringent steps regarding
the licencing
of firearms. Only a "person" foreign to this world may not know
that the largest majority of violent crimes are committed by criminals
who
possess unlawfully obtained weapons But again, this is probably immaterial - it
is so much easier to blame an inanimate object
than a person.
So,
whatever value these last-minute remarks may have, you requested to kindly
convey it to the Constitutional Court.
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DEMOCRACY ... FACT
OR FICTION?
In all the advertisements of the Constitutional Assembly
the public were urged to participate in the making of the new constitution.
After all, this is what democracy is all about ... the populace rules, not the
politicians. The motto of the Constitutional Assembly
in fact spells it out:
"You have made your mark - Now you have your say." Democratic constitution
making sounds fairly simple. The
politicians, who were elected by the electorate
and who are therefore representing the electorate in the highest negotiating
chambers,
are supposed to carry out the will and wishes of the electorate.
Taking these simple concept,; into account there should not be
any reason why
reasonable requests could not be carried through by the political'
representatives.
But does this in fact happen? Don't be surprised if I
tell you that it does not happen - not in your wildest dreams! This so-called
democratic decision-making is nothing but fancy window-dressing. How can it be
something else if Mr Cyril Ramaphosa said that the
constitution was specifically
drafted for those who had been denied basic rights in the past? Must a
constitution be drafted only
for certain people or must it address all major
issues, also those which the politicians themselves do not ask for? Why must it
provide only for the wrongs of the past? Why does it not rather provide for the
realities of the day? The views of the ruling party
of the Government of
National Unity is clearly based on what Albie Sachs wrote in 1990 in Protecting
Human Rights, Oxford University
Press, p18: “Just as there is no area of
South African life that apartheid has left untouched, so it will be necessary to
extend affirmative action to every aspect of society - health, education, work,
leisure, to mention but a few."
Contrast this viewpoint now with what a
liberal French economist wrote in 1850 (Frederic Bastiat, The Law
(Irvington-on-Hudson, New
York: The Foundation of Economic Education, 1987 at
p67): “It is not true that the function of law is to regulate our
consciences,
our ideas, our wills, our education, our opinions, our work, our
trade, our talents, or our pleasures. The function of law is to
protect the
free exercise of these rights ...” ).
Note too what William Buckley,
who authors Viewpoint in New Dimensions, said in this regard: “Democracy,
to be successful,
must be practised by politically mature people, among whom
there is concensus on the meaning of life within their society.".
As many
political leaders tell us that South Africa sets an example of what democracy
is, why am I so cynical about this matter?
It is because I have just received
my copy of the Refined Working Draft New Constitution. I immediately paged to
article 10 which
provides for the right to life wanted to see whether SAGA's
representations had any effect. To my surprise (I'm lying, I was not
really
surprised) it still reads as before: “Everyone has the right to life"
(There are two options which provide for the death
penalty).
In Table 2
of the Draft it is stipulated that 14410 pro-gun petitions were received, the
third most (only pro death penalty and animal
rights received more).I believe
many more submissions were in fact faxed but were not received because the fax
mach of the Constitutional
Assembly has at some stage either b switched off or
was out of order.
Regarding the submissions the following is
stated in paragraph 15.5 of the Draft: “Many individual submissions
linked the right
to life to the right to self-defence and the right to own fire-
arms. The CA received 14410 submissions stating that Constitution
should be
amended to recognise the right to fire-arms and to place a limitation on
government's power disarm the civilian population.
These petitions (sic) also
argued that the right to life should be qualified by allowing justifiable
homicide, inter alia, in defence
of any person f unlawful violence or, in order
to effect a lawful arrest or prevent the escape of a person lawfully
detained.".
Certain questions immediately come to mind: What
purpose did the
Certain questions immediately come to mind: What
purpose did submissions serve? Were they ever discussed? Did any politic or
political
party argue in favour of gun rights? Why were t (the submissions)
apparently just brushed aside?
y
If the submissions were
not discussed or merely brushed aside will have serious reservations about the
democratic process. it is not
that the political parties did not know - they had
received a copy of our representations. So much for politicians working for the
electorate!
It will probably be argued that it is not necessary
to entrench in the Constitution the right to keep and bear arms because
sufficient
freedom is guaranteed. It will further be argued that all the rights
that we want protected are already sufficient protected by
various laws, eg
section 49 of -the Criminal Procedure Act, 1977 (the right to use reasonable
force when executing arrest in the
event of the arrestee not subjecting himself
to the arrest or fleeing); the common law right of private defence; section 3
of the
Arms and Ammunition Act, 1969 (the right to own firearms once licences
have been granted); and various Nature Conservation Ordinances
which provide for
legitimate hunting.
For at least two reasons the above-mentioned rights
cannot be regarded as being properly protected, viz (I) the Constitution is the
supreme law of the land and any ‘law or conduct inconsistent with it is
invalid’ (article 2(1) of the Constitutuion);
and (ii) any law can easily
bne repealed or amended - a simple lmajority vote in parliament is
required.
Specifically with regard to legitimate private defence it may
argued that the Bill of Rights (Chapter 2) provides sufficient safeguards.
The
following may be cited:
(I) Article 7: "The state must respect, protect, promote, and fulfil the
rights in this Bill of Rights."
(ii) Article 8(1):"Everyone is equal before the law and has the right to
equal protection and benefit of the law."
(iii) Article 10: ‘Everyone has the right to life.’
(iv)
Article 11(2 ) : 11 Everyone has t he right to security of the person,
including the right:
(a) to be free from all forms of violence;
(b) to
[bodily/physical] and psychological integrity;"
In practical reality
these rights are but little consolation for the person who is facing a violent
attack. There is no doubt that
because politicians are fond of reacting to
emotional matters and because they don't mind gambling with people's lives, the
right
to private defence and the right to possess the means to do so ought to be
protected in the Constitution. A clear example of how
politicians react to
emotional matters is the Australian government who now want to impose even
stricter gun-control measures after
the masacre in that country. Is it so
difficult to understand that as inanimate objects, guns need no control --
‑criminals
and mentally ill people need control.
As people have
rights before they have a state, the state exists only to protect people's
rights. If the state or any of its organs
is unable to do so, the individual
must have the right to do so himself. Therefore, in the words of the liberal
Bastiat: "If every
person has the right to defend - even by force - his person,
his liberty, and his property, then it follows that a group of men (read
people)
have the right to organise and support a common force to protect these rights
constantly.".
In the second paragraph I remarked that this democratic
decision-making is nothing but fancy window-dressing. Having read the above
you
be the judge!
[Editor’s Note: Article ‘Commentary on the
Constitution’ illegible]
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