As we near the end of the series of articles touching on the historical development of firearm law, we can start to consider the real questions we need to be able to answer. The big and most controversial question of course is ‘is there a right to possess firearms’? While many of us would love to hear something as affirmative and clear-cut as the Second Amendment, the answer is perhaps more qualified in South Africa’s case: there is such a right, but it has not been fully fleshed out yet.
This question is the root of any and all subsequent questions about how firearm law ought to look. To say ‘there is no such right’ will end the debate right now, while ‘yes there is such a right’ gives us the Second Amendment. We do not have a right as explicit as the Second Amendment makes it for the United States, but I would argue that we do come close. Before we turn to answering how it manifests in the South African context, let us quickly refresh our memories about how this question has been considered previously.
The colonial answer to firearm rights
There were four jurisdictions with four different answers during the colonial era. The Cape said that there was such a right, but it limited it to residents of the Cape (this meant people living beyond the Cape frontier did not have the right, especially the Xhosa). This belief was founded in liberal principles strongly reliant on Christian doctrine. Natal reserved it for white colonists and tribal chiefs, but these chiefs were more limited than white colonists. The Orange Free State did not believe in an explicit right, but did create an active policy of arming its white burghers (literally giving rifles and some ammunition to those who were too poor to afford their own). The Zuid Afrikaansche Reubliek (ZAR/Transvaal) had no real policy at all, except to say that black people should definitely not have firearms (although this was not enforced).
The Cape had the most coherent and simple approach to firearm ownership: all black and white residents of the Cape had a God-given right to own firearms. There was no requirement for a special reason, and the logic largely followed ‘there is no reason to fear good citizens and subjects of the colony’. At most, The Cape added a qualifier that permits only be issued to ‘fit and proper persons’, and left it up to the magistrate to decide how to apply it. As mentioned, the other colonial jurisdictions chose other less clear positions on the topic.
Despite the differences in law, the effect of firearm ownership had strong and very special significance to people, and especially to blacks. These included very positive notions of self-responsibility, modernity, and citizenship. Regardless of the laws, blacks in particular perceived a right. To paraphrase what an English soldier heard from an Mfengu levy: ‘If the white man has a gun, we should have them too!’.
The Langalibalele Affair and especially the Cape Frontier Wars had a chilling effect on how governments perceived this idea of a ‘right to own firearms’. Even though it failed, the Confederation Project brought an end to any idea of a right in a general sense, especially for blacks. Whites still had a right, but they also began to fall under the eye of suspicion. Sir Bartle Frere (the architect of the Confederation plan) believed that civilised society had no use of public carry of firearms, of any kind, white or black. His logic was that society would become civilised faster if firearm carrying was discouraged.
The black disarmament policy would prove to be an absolute disaster when the government finally encountered armed blacks who had very strong ideas about their right to own firearms: the Sotho. The BaSotho War of the Gun of 1880-1881 effectively cemented the future country of Lesotho as an independent state.
The post-colonial answer to firearm rights
The break between the colonial and post-colonial era is best marked by the Second Anglo-Boer War of 1899-1902, which is where Dutch/Afrikaners were also dispossessed of their firearms. The right to own a firearm had gone from ‘just about everyone’ (depending on where you were pre-1878), to ‘whites only’ (from 1878), to ‘English speaking whites only’ (from 1899). The end of the war meant that the question had to be revisited in rebuilding South Africa.
Massimo d’Azeglio allegedly said around 1866 that ‘We have made Italy. Now we must make Italians’. The British had a similar situation when they won the Second Anglo-Boer War: how to make South Africans out of what had once been two independent states and two separate colonies.
It was already a done deal that black people were not citizens, and would not be. This was despite Merriman and Molteno’s strong efforts to get explicit citizenship for them (even if limited), but had to settle with a qualified voter franchise in the Cape only. This left the English and Dutch (soon to be Afrikaner) white populations. The Colonial Secretary for the new Transvaal Province firmly said that ‘every person of good conduct should have a right to possess firearms’. The way forward was clear: if Afrikaners were going to buy into this new South African citizen identity, they needed to be treated and trusted like citizens, and this meant owning firearms.
The Arms and Ammunition Act 28 of 1937 would make it clear by reminding everyone that black firearm ownership was prohibited as a general rule. It stayed this way until the Arms and Ammunition Act 75 of 1969 replaced it, while still keeping the general rule from 1937.
During the attempts to reform apartheid in the 1980s, this question came up again. Even though the law was changed to allow blacks the same access to firearms as whites in 1983, it was only window-dressing. Licences were almost never issued to non-whites despite the change of wording, but it did reveal a tacit belief that even the apartheid government accepted in theory: good people have a right to own firearms, even if they are black.
The real equality before the law on this question and topic would come in the 1990s, during which time the government actually started to implement the law as it was written back in 1983. Having been denied any route to legally own firearms in the previous century, black firearm ownership exploded.
The Firearms Control Act: changing the game?
Despite all the problems of the FCA in its attempt to make firearm ownership as difficult and expensive as possible, it did something of a Freudian slip: it made it clear that firearms are directly connected to vindicating/protecting constitutional rights (particularly sections 11 and 12(1)(c) of the Constitution). Despite all the paperwork and bureaucracy, the FCA admits that firearms have a legitimate role in protecting the explicit right to life (section 11), and also the general right to be free from all forms of unlawful violence (section 12(1)(c)).
There might therefore be no explicit right to own a firearm, but there absolutely is a right to vindicate constitutional rights with the relevant tools. This raises the question of how reasonable or rational it is to restrict firearm ownership under these circumstances. It is therefore a balancing act, and one that is very unbalanced at this time.
Perceptions of the right
As can be seen by the historical progression on this topic, there have clearly been examples of senior government officials saying that there is a right (and there are more than mentioned here). There have of course also been many who say that there is no such right. Others acknowledged the ‘ongoing debate’ without answering it themselves (particularly from the 1980s). The point is, there is not a clear answer in the form of law or a court judgement…not yet at least.
Current political parties are unfortunately very vague on the topic, and this suggests that they know and accept that firearm ownership is popular among South Africans. Considering that only a minority of South Africans are firearm owners, this suggests that the sentiment is aimed more towards the mere option and possibility of getting a firearm in the future. The DA and VF+ have perhaps the most clear positions on the topic, but even these ‘clear’ positions are quite vague and contain no detail.
The courts have also generally been careful to not comment on what they think about the topic. This does not include the Constitutional Court in its 2018 decision in Minister of Police v SA Hunters. The Court in that case fumbled and bumbled with its own Freudian slip when it held that ‘firearm ownership is a privilege and not a right’ in the very first sentence of the judgement. The Court should not have said that, and should not be allowed to get away with it. Nobody in that court case even mentioned a right to own a firearm, making the comment inappropriate and betraying the judge’s own personal thoughts on the matter.
Conclusion
The clearest answer to ‘is there a right’, is to say that it has not been answered in any authoritative way since the Cape during the colonial era. Only the Constitutional Court ever tried to give a definitive answer, but it was an answer to a question that nobody had asked. This means that their ‘answer’ was completely misplaced and fortunately has much less value than it otherwise would have.
The FCA affirms legitimate interests in owning a firearm, and section 13 has the most direct relevance to constitutional rights (self-defence in the context of section 11 and 12(1)(c) of the Constitution). At the moment, section 13 of the FCA and sections 11 and 12(1)(c) of the Constitution exist in something of parallel and separate worlds. They have not been directly linked or reconciled in any firm way, and the prevailing belief could easily be one of ‘silly firearm owners, but if it makes you feel better’. This would align better with the idea that firearm ownership is a privilege to be enjoyed, simply because it has no real value in actually protecting rights.
If we are to link them, it would be to say that we have a right to not be prevented from securing our legitimate interests of life and bodily integrity. This means that we need to better articulate how the two are linked, and the various Fidelity judgements are excellent ammunition in this regard. This does mean that something like the FCA is likely destined to stay with us for a while, but it also means that there is scope to hollow out and delete the most draconian pieces. Obvious examples would include motivations and ammunition restrictions, but also a host of other changes to simplify the FCA.
Many in the firearm community are unfortunately wedded to the short-sighted idea that ‘the FCA is good law but badly implemented’. The number one problem with the statement is that the FCA is premised on perfect control, which is impossible. Lawful firearm owners are still directly blamed for violent crime. This is the entire rationale of the FCA. It is therefore impossible to be ‘good law’.
It would be much better to admit that ‘it is badly designed law, founded upon false assumptions, but we are willing to endure it if we can make it more workable with a few changes’. There is a lot that can be changed in the FCA without rewriting it or correcting the assumptions behind its existence, but that starts when we stop deluding ourselves that the government somehow ‘has a point’.