The right to bear arms

By Atty. Eduardo T. Reyes III

“When guns are outlawed only the outlaws will have guns” is a popular quote from Louis L’Amour  that gun enthusiasts often invoke.

In the wake of the recent killing of 19 young children and two adults by an 18-year old gunman at a school in Uvalde, Texas, US policymakers were again at odds on gun laws and policies. The shooter who was wearing a bullet-proof vest had a semi-automatic rifle. He shot it out with law-enforcement agents until a border patrol agent finally felled him with a bullet. This incident which followed a shooting in a supermarket in Buffalo on May 14^th reminds of another tragic school shooting at Sandy Hook in 2012.

In the Philippines, albeit it is not as raucous, gun licensing and permission to carry firearms outside of residence are also troubling issues.

This leads us to the explosive legal question: is the right to bear arms absolute?

In FRANCISCO I. CHAVEZ v. HON. ALBERTO G. ROMULO, IN HIS CAPACITY AS EXECUTIVE SECRETARY; DIRECTOR GENERAL HERMOGENES E. EBDANE, JR., IN HIS CAPACITY AS THE CHIEF OF THE PNP, ET. AL. (G.R. No. 157036), which came down on June 9, 2004, this legal question was answered by the Supreme Court, thus:

“The right of individuals to bear arms is not absolute, but is subject to regulation. The maintenance of peace and order and the protection of the people against violence are constitutional duties of the State, and the right to bear arms is to be construed in connection and in harmony with these constitutional duties.”

But given that “the right to bear arms” is enshrined in the US Constitution which is the progenitor of sorts of the provisions of the Philippine Constitution, did we not echo such right to be rightfully invoked by Filipino citizens as well?

According to FRANCISCO I. CHAVEZ v. HON. ALBERTO G. ROMULO, “The bearing of arms is a tradition deeply rooted in the English and American society. It antedates not only the American Constitution but also the discovery of firearms. A provision commonly invoked by the American people to justify their possession of firearms is the Second Amendment of the Constitution of the United States of America, which reads:

“A well regulated militia, being necessary for the security of free state, the right of the people to keep and bear Arms, shall not be infringed.”

An examination of the historical background of the foregoing provision shows that it pertains to the citizens’ “collective right” to take arms in defense of the State, not to the citizens’ “individual right” to own and possess arms. The setting under which the right was contemplated has a profound connection with the keeping and maintenance of a militia or an armed citizenry. That this is how the right was construed is evident in early American cases.”

                Indeed, in Philippine jurisdiction, the right to bear arms is not a constitutional-right but one created by law. “With more reason, the right to bear arms cannot be classified as fundamental under the 1987 Philippine Constitution. Our Constitution contains no provision similar to the Second Amendment, as we aptly observed in the early case of United States v. Villareal. X x x. Evidently, possession of firearms by the citizens in the Philippines is the exception, not the rule. The right to bear arms is a mere statutory privilege, not a constitutional right. It is a mere statutory creation”.

The present law regulating gun ownership and possession is embodied in REPUBLIC ACT No. 10591 entitled AN ACT PROVIDING FOR A COMPREHENSIVE LAW ON FIREARMS AND AMMUNITION AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF. This was tangentially revised by Republic Act. No. 11766 insofar as the validity of firearm licenses are concerned which was extended up to 5 to 10 years.

Now, Philippine lawmakers have a delicate balancing act to perform as gun ownership and possession are ticklish topics. On the one hand, indiscriminate selling or proliferation of guns is out of the question but squeezing the regulations too tight would also deprive responsible gun owners of their right- albeit a statutory one- to possess guns as a hobby and/ or defend themselves against crimes.

As gun safety reminders would often scream: do not load your firearm unless you are ready to shoot.

(The author is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a book author. His website is etriiilaw.com).