In this article, Jonathan argues that we should always question the different parts of a law, even if it appears to have value. Using firearm safe storage rules as an example, he shows how history can obscure the initial reasons for a law and affect how it is understood in the present day.
Few people disagree about storing firearms and ammunition in a safe. After all, it is a good example of responsible firearm ownership. South African safe storage requirements are very rigid, but the majority of people unfortunately do not understand why or where it comes from. For most people, safe storage has been a requirement for as long as they can remember. The purpose of this article is not to pass judgement on whether safe storage is good or bad, but rather to illustrate how it developed. Their suitability is a different question that should be answered separately.
The requirement for actual safes originates in the 1988 amendments to the Arms and Ammunition Act 75 of 1969, but the concept of safe storage goes back further than that. The Dutch VOC company placed a premium on its employees to ‘keep watch and guard over their firearms’, lest they find their way into the hands of the local native peoples (mostly the Khoi-San and Xhosa).
By the time the four founding jurisdictions for modern South Africa were established, little had changed. Even though Natal Colony was insistent on marking and registering every single firearm that it could find, there was no penalty for losing a firearm or having it stolen. There were however significant fines for knowingly supplying firearms and ammunition to unauthorised persons, which included blacks and Asiatics.
The mid-1870s marked the end of whatever black-friendly regulation there was. The Cape defeated the Xhosa in the final Cape Frontier War of 1875, instituted the Peace Preservation Act in 1878 to make sure the Xhosa did not acquire firearms again (not that they used them very effectively), and then disarmed all other black groups in the Cape. It did not matter whether they were loyal to the government (such as the Mfengu) or not (the various Xhosa clains). The Cape would fail in trying to disarm the Sotho, who rebelled and waged a very expensive war.
Up until the 1910 Union, ‘safe storage’ took the form of keeping control over your firearms. It was up to you how that was achieved, and it stayed this way until the Arms and Ammunition Act 28 of 1937. The 1937 Act introduced a criminal penalty if a parent created a risk for a child, such as leaving a loaded firearm on a low table. Again, the law said that you were free to store the firearm how you wanted, but that you would be criminally liable if a child had access to it and caused an accident. This mean that you could legally leave the firearm in an easy to access place, as long as the ammunition was kept separate and inaccessible.
During the colonial era, blacks and firearms were associated with frontier instability and violence, which is why they were so thoroughly disarmed by the late 1870s. By 1937, blacks and firearms were associated with crime, which is why the 1937 Act was created: prevent black firearm ownership as much as possible. It says this in the first sentence of the parliament debate for the law.
With the centralisation of firearm regulation in 1937, the law increasingly operated to counter the ‘concern’ of armed blacks. A negligence standard began to slowly develop from 1937, and some of it was very reasonable. It became an explicit offense to threaten someone unlawfully with a firearm, such as pointing without a good reason.
For the most part, the dominant rationale for South African firearm regulation since the colonial era had been one of control, to the exclusion of blacks. Even with the creation of the negligence standard from 1937, this theme of control continued to evolve. Crimes committed by blacks involving firearms began to increasingly concern the government. While some cross-border firearm smuggling was suspected, loss and theft of ‘legal firearms’ was believed to be the main reason by 1965.
To counter this, the government tried to create a centralised firearm register by 1965. The purpose was so that if a firearm was recovered at a crime scene, it could be used as a clue to start an investigation into where the firearm originated. While the 1937 Act did require licences and details of owners, these registers were kept and maintained by the local magistrate. These local registers were not properly updated and often ended up very out of date. A single and central registry would fix this problem.
The creation of this centralised register created a new thread within the already existing control rationale for firearm regulation: if the register was to be made accurate and stay accurate, there had to be penalties and related laws to punish anyone who undermined its accuracy. It therefore became an offence to not report a lost or stolen firearm within 48 hours (later 24 hours), so that the register could be updated. This aspect of the control rationale would increasingly overlap with the negligence standard as time progressed.
The 1965 register ultimately failed because of just how out of date the magistrate registers were, and the only solution was to re-licence every firearm from scratch. This was the justification for the Arms and Ammunition Act 75 of 1969, for which the Central Firearm Registry was a defining pillar. The negligence standard would continue to evolve from here, but undermining the CFR would need to also constitute negligence if it was to have any purpose for being.
The 1960s were the start of a generally turbulent period as resistance to the apartheid state began to heat up. If lost and stolen firearm were ending up in the hands of enemies of the state (usually black people, but not limited to them as the list expanded), control only became more important. ‘Failure to report loss or theft’ was no longer the crime: just allowing the loss or theft to happen was now also a criminal offence. This is a clear example of how the negligence standard is now also serving the control rationale.
By 1983, it was suggested that safes become mandatory with the acquisition of a second firearm. Even though the government was increasingly desperate to prevent lawfully possessed firearms ending up in unlawful possession, it was also concerned about making the cost of compliance for poorer firearm owners too expensive. It was not yet desperate enough to make formal safe storage requirements beyond ‘taking all reasonable steps for the safe-keeping of a firearm’. Requiring something as expensive as a safe was not seen as reasonable.
This would change in 1988. The rates of loss and theft had increased from 1,602 in 1974 to over 10,111 by 1986. In the context of deteriorating domestic security and repeated states of emergency, the government was now desperate enough. Unlawful possession of firearms was by now directly associated with civil unrest and rising violence, rather than the more accurate element of intent. The government believed that it could solve the security crisis if it could just eliminate the rates of loss and theft.
The 1988 amendments therefore made safes a legal requirement for firearm ownership, and it became a criminal offence for a firearm that was not under direct control or supervision of the owner to be lost or stolen because it was not locked up in a safe. The government remained concerned about the financial cost it could have on poorer firearm owners, and tried to reflect that in the regulations through the use of wide wording. The requirements for suitable safe storage are similar to what the FCA requires, but they are not as detailed and rigid.
The early 1990s in general were a tumultuous period for the country, and government went to some extraordinary lengths in a desperate attempt to use firearm regulation as a way to combat rising violence. One of these included a ban on the possession of ‘machine gun ammunition’, which is meaningless because nearly any calibre has a machine gun somewhere in the world capable of firing it.
Even as the 1990s calmed down politically from 1994, violent crime was still very high. The new ANC government took a cautious approach, probably while it got used to its new role as a governing party. The 1995 amendments were not hostile to civilian firearm ownership, but the ANC was concerned about ‘illegal firearms’ (see here why we should stop using this choice of words). One of the big 1995 amendments was to make provision for a firearm amnesty in the hope that it would help reduce violence, which shows that the ANC inherited the National Party’s belief that firearms cause violence, rather than intent. The only difference is that the ANC was much broader in who it perceived as the perpetrators, namely criminals more generally.
Violent crime peaked in 1995 and began to reduce quite sharply, but the ANC government was already spooked. Egged on by actors such as GFSA who reinforced the idea that firearms cause violence, the 1969 Act had to go and more controls had to be added. The 1999 amendments signaled the end of the 1969 Act, and the reasons are extremely suspicious.
The Firearms Control Act 60 of 2000 would arrive on scene a few days later and was promised to be new and innovative, which would get control of all firearms and reduce violence. It would in fact turn out to be nothing new, and was built on the same template and structure as the 1969 and 1937 Acts. The only difference was the sheer extent of how much control it wanted to achieve, and safe storage was part of this.
The ANC government made it clear that it believed that firearms caused crime and their proliferation had to be reduced as much as possible, while increasing control on those that would proliferate. To discourage firearm ownership as much as possible, the FCA had been designed to be expensive and difficult to comply with. The government admitted this in parliament. Licensed owners were the main cause and contributor to unlawful ownership, and had to be targeted as way of addressing unlawful possession. Notably, the safe storage requirements of the 1994 regulations for the 1969 Act were rewritten with reference to more detailed and stricter requirements.
To answer the question of how much rules are reasonable for safe storage requires a separate discussion, as does understanding the limits of firearm regulation more broadly. For now, the intent was to only show how we got to where we are now with safe storage. As can be seen, it is an obsession with control and the belief that all firearms can be brought into the net of control. If they are controlled, then they cannot be used in crimes. If they cannot be used in crimes, then violence is less. While an admirable goal with questionable reasoning, and as has been said above, the central issue of intent remains unaddressed. This forms part of any debate about ‘how much law’ is reasonable for the purposes of safe storage.