Right to arms: between freedom, life and death

The Maidan protests, the annexation of Crimea, the military conflict in Donbas have made the Ukrainian society think about the right to self-defense and the firearm permit.

Put simply, it is about the possibility to bear a gun.

The issue concerning other types of weapons, such as hunting weapons, have been already settled in Ukraine, providing for specific permit procedure.

But what about the short firearms?

Dancing around petition

The petition, authored by chairman of the supervisory board of the Ukrainian Gun Owners Association Heorhiy Uchaykin urges to enshrine in the legislation the right of the Ukrainian citizens to protection. In less than a week, the petition collected the necessary number of signatures (the President of Ukraine considers the electronic petition, if it collects 25,000 signatures in three months).

Poroshenko said that he supported the mechanism for electronic petitions, but the signatories were not the whole society. In addition, the President stressed that only 11% of the citizens stood for keeping and bearing arms, while personally he supported the majority of 82% opposing the right.

Arguments and Facts

The petition has anyway provoked ample discussion on the issue.

The experts fiercely argue over the various aspects of the problem.

Those who oppose the permit say that:

• The violent crime rate will increase
• The arms will fall into the hands of criminals
• The massacres often happen in the countries, where the firearms are allowed, particularly in schools
• The police are able to protect the citizens

The proponents emphasize that:

• The free citizens have the right to protect themselves, their country and its sovereignty and independence from the dictatorship, criminal authorities and external aggression
• The law should guarantee that a citizen has the possibility to protect his or her rights and freedoms, stipulated in the Constitution of Ukraine
• The current law enforcement agencies do not provide the appropriate level of security for citizens
• Even if the law enforcement agencies perform their functions well, everyone has the constitutional right to self-defense

The proponents of the right to keep and bear arms usually cite as arguments the research data showing the direct correlation between the right to arms and lower street crime. Their opponents tend to ask about the sources of such information and often do not get a clear answer. So, it is still unclear whether such data depend on the right to bear arms, or the lower crime rate is reasoned by better economic situation and the overall living standards.

The low level of trust in the police is also mentioned as an argument in the discussions. Another argument is that the criminals have been keeping and bearing arms long since, while the law-abiding citizens do not have such a right. Furthermore, when someone opens fire at school or university overseas, it is the “gun free zone” – the area free of weapons, i.e. the place where the offender is sure in advance that no one will offer him adequate resistance.

Case history

Pavlo Fris, the professor, the head of the criminal law department at the Law Institute of the Stefanyk Carpathian National University, said that the Russian Empire had quite liberal laws on keeping arms until 1917. Then the arms were used only for self-defense, hunting etc. The Bolsheviks banned almost all weapons after the October Revolution except for senior members of the Bolshevik Party and the Soviet economic secretariat.

The effective Ukrainian legislation provides for criminal and administrative responsibility for illegal possession of firearms.

In the United States, Mexico and Switzerland, the right to arms is the constitutional right of the citizens. Sometimes, the government even requires that the citizens have guns, and those who do not have guns have to pay sufficient taxes on their protection. Such order is established, for example, in the U.S. state of Wisconsin. The short firearms are allowed in such post-Soviet countries as Estonia, Latvia, Lithuania, Moldova.

“The weapons are primarily banned in the totalitarian fascist countries. The political regime of these countries cannot admit any possibility of resistance to its activities,” Pavlo Fris said.

Police not satisfied

According to Pavlo Fris, possession of weapons in Ukraine is not regulated, “By and large, this illegal possession of weapons is also a question. Is it illegal if there is no law on weapons?“

The expert sees furious opposition of the police in this matter. The Ministry actually has the monopoly on the license to purchase weapons and arms control as it gets the big profits. Thus, the free format of keeping weapons is simply unprofitable for the Ministry.

The expert is also outraged by the fact that the police, arguing their position, say that Ukrainians are not ready for keeping arms as if it was possible to generalize in this matter and talk about people in general.

Pavlo Fris is sure that Ukrainians need weapons, in particular because the Russia’s aggression has been stopped by the miracle as the Ukrainians have managed to properly equip the army after the years of destruction of the armed forces.

Life or property?

The experts, who oppose the arms permit, distinguish between the human right to protection of their lives and the right to protection of housing and property. In their view, the right to protection of property cannot be exercised at the cost killing of another person.

Their opponents point out that, first, it does not always refer to murdering, it refers rather to the desire to scare off the attacker and “convince” him or her to stop the attack. Second, it is often difficult to determine where there is the edge between the encroachment on property and threat to life during the aggressive attack of an armed criminal.

Should American experience be taken into account?

The foreign experience, including stipulating the right to arms in the Constitution, is not always considered to be an argument.

Olha Butkevych, the Doctor of Law at the Institute of International Relations of the Shevchenko National University of Kyiv, notes that the U.S. Constitution was formed long before the formation of the human rights, which should be our orienting point in making any legislative changes in Ukraine.

In addition, the expert notes that we should not refer to the United States when talking about the issue of bearing and keeping arms. After all, this country is at the lower level of protection of human rights, including understanding of the right to life, as evidenced, for example, by existence of the death penalty.

‘Encroachments’ may be different

Olha Butkevych is also concerned about the wording of the provision, which is proposed to be introduced to the Constitution of Ukraine, on the right to protection in case of encroachment on the constitutional order, sovereignty and territorial integrity of Ukraine, “Could the call to overthrow the constitutional order, the calls that can be interpreted as the threat to the territorial integrity, expressed at political rallies, congresses of political parties or other conventions, be interpreted as the encroachment? Of course, they could. Could the arms be used against the people who express these calls? Of course, they could not. They should be held criminally liable or be punished in another way in accordance with the law of Ukraine. So, we should treat carefully the wording of this provision. In this case, it is too extensive, which is dangerous. “

Ongoing debates

The new arguments in the debates could arise after the recent event in Kyiv. A pregnant woman was disturbed by a man with knife. She managed to grab his knife and hit him in the chest. The attacker, who had been previously convicted of killing the girl, died. The woman will face the trial, she is likely to be sentenced to two years in prison. The human rights activists have already paid attention to this case and intend to protect the rights of the woman.

There is reason to think about the right to self-defense: can we assume that we are free in our right to use weapons, even those allowed? Can we be confident that the court will consider our actions to be self-defense? And if not, how should we defend ourselves? Should we initiate the literacy campaign to know how to save your life and not to accidentally kill someone?

The citizens of Ukraine are hardly used to arms, they often simply do not know how to use arms. Here, the experts from different sides of the barricades agree with each other nearly for the first time. Ukrainians need to develop the culture of keeping and bearing of arms, i.e. training, shooting rooms, taking psychological tests before issuing the permit, checking whether the future gun owners and their close relatives are not drug addicts or mental patients.

It would be good if both sides of the debates are represented by completely impartial people. But it is hardly possible.

It is also important that both parties reach the agreement on a complicated, even creepy to some extent, but the fundamental issue: what is top-priority – the right to life or the right to freedom?

Those, who oppose the right to arms, believe that the right to life is primary and unconditional. When it is important not to hurt someone physically, but to save yourself and others at any cost. Even at the cost of dignity.

The proponents support the right to freedom and the struggle for it even at the cost of your own life.

These are two radically different positions, like heaven and earth. None of them are wrong. The question is what you are apt to choose.

And it seems that this ideological divergence is the reason for fear of some people and radicalism of others. Will they agree?

By that time, the debate over the right to arms, the right to defend yourself, more specifically, tend to be heated.