How can regulation solve firearms problems?

Originally born as an instrument for the modernisation of armies, firearms have proliferated to become a contemporary global problem. Over 250,000 people were killed by firearms worldwide in 2019 and higher still, are those affected by firearms-related health problems, both physical and psychological. Strict regulation is required to combat indiscriminate sales to opposition groups, terrorists or criminals who undermine the rule of law, destabilise societies and perpetuate conflicts. With the aim of creating safer societies, lawmakers have established guidelines to regulate firearms. This howtoregulate article aims to cover the life cycle of firearms: manufacture, marking, possession, storage, destruction and deactivation.

A. International and supranational regulatory framework

I. United Nations (UN)

Doha Declaration

1. The Doha Declaration was passed in 2015, following the 13th UN Congress on Crime Prevention and Criminal Justice, integrating crime prevention and criminal justice into the UN agenda. Among the commitments made in Doha, Member States pledge:

8. (k) To develop and adopt, as appropriate, effective measures to prevent and combat the illicit manufacturing of and trafficking in firearms, their parts, components and ammunition, as well as explosives, including through awareness-raising campaigns designed to eliminate the illicit use of firearms and the illicit manufacture of explosives, to encourage States parties to the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organized Crime, to strengthen implementation of the Protocol by, inter alia, considering the use of available tools, including marking and record-keeping technologies, to facilitate the tracing of firearms and, where possible, their parts and components and ammunition, in order to enhance criminal investigations of illicit trafficking in firearms, to support the implementation of the Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, and to note the contributions of existing instruments on this issue and on related matters at the regional and international levels;

The Firearms Protocol

2. The purpose of the Firearms Protocol (adopted by the General Assembly in 2001) was to address the problem of illicit manufacturing of, and trafficking in, firearms, their parts and components and ammunition, as well as their detrimental effects on socio-economic development, security, well-being and the right of peoples to live in peace (Preamble). As part of the obligation to prevent illicit activities in firearms trafficking, this Protocol requires States Parties to establish a licensing and authorisation system as referred to in Article 10:

Article 10

General requirements for export, import and transit licensing or authorization systems

2. Before issuing export licences or authorizations for shipments of firearms, their parts and components and ammunition, each State Party shall verify:

(a) That the importing States have issued import licences or authorizations; and

(b) That, without prejudice to bilateral or multilateral agreements or arrangements favouring landlocked States, the transit States have, at a minimum, given notice in writing, prior to shipment, that they have no objection to the transit.

3. The export and import licence or authorization and accompanying documentation together shall contain information that, at a minimum, shall include the place and the date of issuance, the date of expiration, the country of export, the country of import, the final recipient, a description and the quantity of the firearms, their parts and components and ammunition and, whenever there is transit, the countries of transit. The information contained in the import licence must be provided in advance to the transit States.

4. The importing State Party shall, upon request, inform the exporting State Party of the receipt of the dispatched shipment of firearms, their parts and components or ammunition.

5. Each State Party shall, within available means, take such measures as may be necessary to ensure that licensing or authorization procedures are secure and that the authenticity of licensing or authorization documents can be verified or validated.

6. States Parties may adopt simplified procedures for the temporary import and export and the transit of firearms, their parts and components and ammunition for verifiable lawful purposes such as hunting, sport shooting, evaluation, exhibitions or repairs.

The Arms Trade Treaty (ATT)

3. In force since 2014, this Treaty governs the illicit arms trade and trafficking. Its scope of implementation is broader than that of the Firearms Protocol, as its objectives include to establish the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms (Article1). It also places special emphasis on international humanitarian law, arms reduction, as well as human rights issues. Thus, States Parties undertake to conduct risk assessments in order to determine the potential that the conventional arms or items:

(a) would contribute to or undermine peace and security;

(b) could be used to:

(i) commit or facilitate a serious violation of international humanitarian law;

(ii) commit or facilitate a serious violation of international human rights law;

(iii) commit or facilitate an act constituting an offence under international

conventions or protocols relating to terrorism to which the exporting State is a Party; or

(iv) commit or facilitate an act constituting an offence under international conventions or protocols relating to transnational organized crime to which the exporting State is a Party. (Article 7.1)

4. Following this assessment, the exporting State Party will determine whether to grant a licence, or deny the application if it determines that there is an overriding risk and therefore the export will not be authorised by that State Party (Article 7.3). Article 12 requires State Parties to keep records for at least ten years.

Model Law against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and components and ammunition

5. This Model Law was developed in 2010, by the UN Office on Drugs and Crime (UNODC), with the aim of facilitating Member States’ efforts to establish a legislative regime consistent with the provisions of the Firearms Protocol. The Protocol leaves the regulation of import and export licensing, as well as measures applicable to international transit, to the discretion of States (Article 10). The Model Law devotes Chapter XVII to simplified procedures for temporary import, export and transit activities. Articles 61-70 contain provisions on the establishment of a licensing authority, licensing criteria, grounds for suspension and withdrawal of licences.

Article 70. Giving false or misleading information on temporary export, import or transit permit forms

1. Where for the purpose of obtaining a permit under articles 62 to 64 of this Law, a person who [specify the level of intent, as appropriate]:

(a) Makes a statement that is false or misleading, or omits a material fact; or

(b) Furnishes a document or information containing a false statement or misrepresenting or omitting a material fact;

commits an offence.

2. A person guilty of an offence under paragraph 1 of this article shall be liable to [imprisonment for …] and/or [a fine of/up to …] [a fine of the … category].

Regional organisations

European Union (EU):

6. The Directive (EU) 2021/555 on control of the acquisition and possession of weapons introduces controls on converted weapons. The increase in the use of converted weapons in the region highlighted a lack of legislative harmonisation and loopholes in European legislation governing the deactivation of firearms. For instance, Member States shall take measures to ensure that devices with a cartridge holder which are designed to fire only blanks, irritants, other active substances or pyrotechnic signalling rounds are not capable of being converted to expel a shot, bullet or projectile by the action of a combustible propellant. In addition, devices that meet the characteristics described above, i.e., devices that can be converted to expel a bullet by the action of a propellant fuel, shall be classified as firearms (Article 14).

The regulations provide for the transfer of firearms from one Member State to another in Article 16:

2.   Where a firearm is to be transferred to another Member State, the person concerned shall, before it is taken there, supply the following particulars to the Member State in which such firearm is situated:

the names and addresses of the person selling or disposing of the firearm and of the person purchasing or acquiring it or, where appropriate, of the owner;

the address to which the firearm is to be consigned or transported;

the number of firearms to be consigned or transported;

the particulars enabling the firearm to be identified and also an indication that the firearm has undergone a check in accordance with the 1969 Convention;

the means of transfer;

the date of departure and the estimated date of arrival.

The information referred to in points (e) and (f) need not be supplied where the transfer takes place between dealers.

The Member State shall examine the conditions under which the transfer of the firearm is to be carried out, in particular with regard to security.

Where the Member State authorises such transfer, it shall issue a licence incorporating all the particulars referred to in the first subparagraph. Such licence shall accompany the firearm until it reaches its destination; it shall be produced whenever so required by the authorities of the Member States.

Organization of American States (OAS):

7. The main tool in the American region in the area of illicit firearms trafficking and proliferation is the Inter-American Convention Against The Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and other related materials (CIFTA). It is an instrument with a coordinated and transnational perspective where States Parties undertake to identify a national body or a single point of contact to act as liaison among States Parties, as well as between them and the Consultative Committee, for purposes of cooperation and information exchange (Article XIV).

Western Balkans Small Arms and Light Weapons (SALW) Control Roadmap:

8. The purpose of the Roadmap is to guide a sustainable solution to the illegal possession, misuse and trafficking of firearms in the Western Balkans. Among the goals set out in the Roadmap, the first one is “By 2023, ensure that arms control legislation is in place, fully harmonized with the EU regulatory framework and other related international obligations and standardized across the region”.

9. In order to establish a legislative and regulatory framework on firearms in line with international (Firearms Protocol) and regional (European Union) commitments, a number of general objectives are set out, such as ensuring that a full legal and regulatory framework is in place for firearms, ammunition, and explosives (FAE) producers.

10. Starting from a low level of awareness on the possibility of diversion of parts and components due to loopholes in the control of production process; minimal regulation, security requirements, and oversight over the explosives producers and legal entities utilizing the explosives producers and legal entities utilizing the explosives producers and legal entities utilizing the explosives; no regulation on precursors; each country has an action plan.

11. For example, Montenegro’s Strategy for combating illegal possession, misuse and trafficking of small arms and light weapons (SLAW) and their ammunition from 2019 to 2025 aims to ensure that a full legal and regulatory framework is in place with regards to production, upgrade, repair, marking and deactivation of FAE has identified the necessity to regulate and exercise constant control over the production process, and safety and oversight over the producers.

International non-governmental organisations

Model Law to Assist Pacific States to Implement the Arms Trade Treaty

12. In order to facilitate the implementation of the Arms Trade Treaty (ATT) in Pacific countries, the New Zealand Government, together with the Small Arms Survey, developed a set of model legislative provisions to identify and translate the ATT commitments into the legislation of countries in the region. The Model Law aims to support national legislatures in ratifying the ATT and harmonising their national legislation, as well as responding to the security aspirations and objectives of the region.

13. The annexe to this Model Law contains model regulations that are intended to implement the primary legislation:

Part 3 – Record-keeping

13 Records of exports and imports

The following information shall be recorded with respect to the export, import, transit and transhipment of conventional arms [, ammunition, or parts and components] under sections 25 and 26 of the Act:

(b) where the conventional arms [, ammunition, or parts and components] are imported into [insert country]:

i. date of issuance of the import licence;

ii. date of expiration of the import licence;

iii. the exporting country;

iv. the import markings that have been applied to the small arms and light weapons (where applicable);

(c) where conventional arms [, ammunition, or parts and components] are transited or transhipped through [insert country]:

i. any relevant information or documentation provided under section 12 of

the Act;

ii. [date of issuance of the transhipment permit granted under section 14 of the Act;]

iii. [date of expiration of the transhipment permit granted under section 14 of the Act;]

(d) full details of the route to be taken to the importing country, including any transit and transhipment countries and ports of entry and exit (where known);

(e) name and contact details of the final recipient/end-user;

(f) a description of the quantity, value, model and types of the conventional arms

[, ammunition, or parts and components];

(g) the name and contact details of any other party involved in the transaction,

including brokers and transport agents;

(h) a copy of any end-user certificate or other relevant documentation; and

(i) details of the safety and security arrangements, including safe storage and

transportation, preventing the conventional arms [, ammunition, or parts and components] from coming into the possession of unauthorised individuals or entities.

B. National regulatory frameworks

National regulatory frameworks are influenced by historical circumstances and threat perception. In addition, chance events, such as mass shootings, may prompt legislators to apply more restrictive measures to the control and possession of firearms.

I. Leading firearms producers and exporters:

1. Generally, national jurisdictions regulate strictly the manufacture of firearms. However, two examples of national regulations will be reviewed, which permit the production and export of firearms under certain conditions.

2. The United States is the dominant player in global arms sales.1 The first legal instrument regulating the arms industry in the US is the federal law National Firearms Act (NFA). Originally enacted in 1934, it controls firearm manufacture through taxation. It also imposes a special (occupational) tax on persons and entities engaged in the importation, manufacture and trade of firearms.

§ 5801 Imposition of tax.

(a) General rule. On first engaging in business and thereafter on or before July 1 of each year, every importer, manufacturer, and dealer in firearms shall pay a special (occupational) tax for each place of business at the following rates:

Importers and manufacturers: $1,000 a year or fraction thereof.

Dealers: $500 a year or fraction thereof.

§ 5822 Making.

No person shall make a firearm unless

he has (a) filed with the Secretary a written application, in duplicate, to make and register the firearm on the form prescribed by the Secretary; (b) paid any tax payable on the making and such payment is evidenced by the proper stamp affixed to the original application form; (c) identified the firearm to be made in the application form in such manner as the Secretary may by regulations prescribe; (d) identified himself in the application form in such manner as the Secretary may by regulations prescribe, except that, if such person is an individual, the identification must include his fingerprints and his photograph; and (e) obtained the approval of the Secretary to make and register the firearm and the application form shows such approval. Applications shall be denied if the making or possession of the firearm would place the person making the firearm in violation of law.

3. The Firearms Owners Protection Act (FOPA), which amended the Gun Control Act, establishes the system of control and inspection that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) can conduct on firearms producers and sellers:

Section 923 (7)

(g)(1)(A) Each licensed importer, licensed manufacturer, and licensed dealer shall maintain such records of importation, production, shipment, receipt, sale, or other disposition of firearms at his place of business for such period, and in such form, as the Secretary may by regulations prescribe. Such importers, manufacturers, and dealers shall not be required to submit to the Secretary reports and information with respect to such records and the contents thereof, except as expressly required by this section. The Secretary, when he has reasonable cause to believe a violation of this chapter has occurred and that evidence thereof may be found on such premises, may, upon demonstrating such cause before a Federal Magistrate and securing from such magistrate a warrant authorizing entry, enter during business hours the premises (including places of storage) of any licensed firearms importer, licensed manufacturer, licensed dealer, licensed collector, or any licensed importer or manufacturer of ammunition, for the purpose of inspecting or examining—

(B) The Secretary may inspect or examine the inventory and records of a licensed importer, licensed manufacturer, or licensed dealer without such reasonable cause or warrant—

(i) in the course of a reasonable inquiry during the course of a criminal investigation of a person or persons other than the licensee;

(ii) for ensuring compliance with the record-keeping requirements of this chapter not more than once during any twelve-month period; or

(iii) when such inspection or examination may be required for determining the disposition of one or more particular firearms in the course of a bona fide criminal investigation.

4. The regulation of the export of firearms falls under the Arms Export Control Act (AECA). In general, this law requires an export licence issued in accordance with the AECA and its regulations. The Department of State’s Directorate of Defence Trade Controls (DDTC) is responsible for licensing and export control of the AECA, as well as licences for the defence articles listed in the United States Munitions List (USML) in the International Traffic in Arms Regulations (ITAR) (22 CFR 121.1).

5. The Control of Firearms, Guns, Ammunition and Related Articles The President determines no longer warrant control under the united states munitions list (USML) determined that firearms do not have an inherently military function, therefore, the Department of Commerce (and the Export Administration Regulations, EAR) may control these firearms, ammunition, and other items previously controlled under the USML. This responds to the global market demand for items in connection with civil and recreational activities such as hunting, marksmanship, competitive shooting, and other non-military activities. In this way, the US Department of Commerce’s Bureau of Industry and Security is responsible for export controls for items on the Commerce Control List (CCL).

6. Spain is the sixth largest arms exporter2 and Article 149(1)(26) of the Spanish Constitution grants the Spanish State exclusive competence over the regime governing the production, trade, possession and use of arms and explosives. Likewise, Articles 28 and 29 of the Organic Law for The Protection of Public Security assign to the Spanish government the regulation of the requirements and conditions for the manufacture, circulation, storage, trade, acquisition, possession and use of arms, as well as the adoption of the necessary control measures to ensure compliance with these requirements and conditions.

Article 29. Control measures.

1. The Government shall regulate the necessary control measures on the matters listed in the previous article:

a) By subjecting the opening and operation of factories, workshops, depots, warehouses, marketing establishments and places of use and the activities related to them to requirements of cataloguing or classification, authorisation, information, inspection, surveillance and control, special qualification requirements for the personnel in charge of handling them, as well as the determination of the system of liability of those who have the duty to prevent the commission of certain infringements.

b) Establishing the obligatory possession of licences, permits or authorisations for the acquisition, possession and use of firearms, the issuance of which shall be restrictive in the case of personal defence weapons, in relation to which the granting of licences, permits or authorisations shall be limited to cases of strict necessity. For the granting of licences, permits and authorisations, account shall be taken of the applicant’s conduct and record. In any case, the applicant shall give his express consent to the body of the General State Administration processing his application for his criminal record to be checked.

c) By prohibiting the manufacture, possession and marketing of weapons, cartridges, pyrotechnic articles and particularly dangerous explosives, as well as their storage.

2. The manufacture, trade and distribution of arms, pyrotechnic articles, cartridges and explosives is a sector with specific regulations on the right of establishment, under the terms provided for in the legislation on foreign investment in Spain, and the Ministries of Defence, the Interior and Industry, Energy and Tourism are responsible for exercising the powers of supervision and control.

7. Furthermore, in order to harmonise national legislation with European directives on the control of the acquisition and possession of weapons, the Weapons Regulation has been amended, including improvements to combat the misuse of weapons for criminal purposes and re-emphasising the common European approach to the deactivation of firearms to prevent their reactivation and subsequent use for terrorist purposes. For the deactivation of firearms, prior approval must be obtained from the Intervención de Armas y Explosivos (a unit of the Spanish Civil Guard), and once approved an official test bench, or, an authorised gunsmith carries out the deactivation. Once the deactivation has been carried out, the bench, or other body designated by the Directorate General of the Civil Guard as the verifying entity, will verify that the deactivation of the firearm has been carried out in accordance with ITC 2 (Complementary Technical Instruction), to ensure that all the components of the firearm are unusable (Article 108).

8. To bring national legislation on foreign trade in arms into line with the Arms Trade Treaty (ATT), Law 53/2007 on The Control of Foreign Trade in Defence and Dual-Use Material was passed. Article 10 of this Law establishes the penalties: infringements of this Law that constitute a crime, misdemeanour or administrative offence shall be governed, as appropriate, by the provisions of both the Criminal Code and the special legislation on the suppression of smuggling. Thus, with regard to the punitive and sanctioning system, Article 566 of the Spanish Criminal Code states:

1. Those who manufacture, trade or establish weapons or ammunition depots not authorised by law or by the competent authority shall be punished:

2. In the case of regulated firearms or ammunition for the same, imprisonment of two to four years for the promoters and organisers, and imprisonment of six months to two years for those who have cooperated in their formation.

II. Licences for sellers and owners

9. For firearms outlets there is generally a licensing process. In the case of Tanzania, Section 16 of the Firearms and Ammunition Control Act regulates licensing for the possession of firearms for commercial purposes:

(1) The Registrar may issue a licence to possess a firearm for business purposes which include-

    • a private company or any other institution;
    • a person who is licenced as a hunter under the relevant laws; or
    • any person who is licenced to use firearms for such other business purpose which the Minister may approve.

(2) A person or company in respect of which a licence is issued shall use such licence for the purposes specified in the licence.

(3) Subject to subsection (2), the holder of a licence issued under this section may only provide the firearms for use by another person possessing a certificate of competency, other than to a person possessing a temporary permit.

(4) Subject to this section private company or any other institution which holds a licence to possess a firearm for business use may only provide the firearm to a private security officer in its service who holds a certificate of competency.

10. Japan has the most restrictive gun control laws in the democratic world. Under the Firearm and Sword Possession Control Law, firearms are prohibited except in a few cases, such as by police officers (Article 3). In order to obtain a firearm licence a person must go through a rigorous process, including theory classes, practical classes, examinations and psychological tests. Finally, the police are free to refuse a licence to “a person for whom it is recognised that there is sufficient reasonable basis to fear s/he might harm the life or property of others, or the public safety”. Persons with a criminal record, drug addicts, the mentally ill are disqualified from obtaining a licence to possess firearms (Article 5).

11. Age is also another requirement that varies between national legislation. According to the Firearms Lawof Israel, the minimum age for obtaining a gun licence is 18 if you are a citizen or permanent resident of Israel and have completed compulsory military service. The minimum age requirement is 21 if you have completed two years of national service. In contrast, an Israeli citizen who has not completed military or national service must wait until the age of 27 to be eligible for a firearms licence. Finally, if a permanent resident of Israel (non-citizen) has not completed military or national service, he or she must wait until 45 to begin the licensing process.

12. South Africa (Firearms Control Act) has one of the most comprehensive firearms control regulations. Section 41 sets out the licensing conditions for firearms manufacturers. Among the requirements is a prohibition on the transfer of licences (Section41a); the storage of manufactured firearms in a safe or strong room (Section 41d); model labelling of manufactured firearms, including the “made in South Africa” stamp, the manufacturer’s trade name on the barrel, frame or case of the firearm (41i); and the prohibition on employing a person declared unfit to possess a firearm in a position with access to firearms (41u).

13. Section 49 of the Firearms Control Act provides for the establishment of a centralised database of firearms manufacturers.

(2) The central manufacturers’ database must contain –

(a) the information and supporting documents submitted by an applicant on the prescribed form under regulation 13 regarding a competency certificate, manufacturer’s licence, authorisation, permit, renewal or copy thereof, as well as, the relevant information in respect of the suspension or termination thereof;

(b) the information on a competency certificate, licence, authorisation, permit and a renewal or copy thereof, that were issued or refused as a result of the application; and

(c) the details and information submitted by a manufacturer in respect of the manufacture, use or transfer of a firearm and ammunition affected under the Act.

14. Chapter 6 regulates the import, export and carriage in-transit of firearms and ammunition. It does so by detailing the type of import or export permit, such as the permanent import and export permit (62.1); the temporary import and export permit for a dealer, manufacturer or gunsmith (62.2); the multiple import-export permit (62.6); etc. Section 67 establishes guidelines for the storage of firearms and ammunition, specifying the requirements applicable to firearms during storage in a safe or strong room: (4) (The firearm must be) “(a) unloaded; (b) not readily accessible to unauthorised use; and (c) securely attached with a secure locking device to a non-portable structure in such a manner that it cannot readily be removed”.

15. Employees of an “Official Institution” required to possess a firearm during the course of official duties must (Section 79):

(2)(b)(i) […] undergo at least one practical training session at least every 12 months or within a shorter period as may be reasonably necessary in the circumstances, in the proper and safe handling and use of the relevant firearm and ammunition; and

(ii) undergo psychological debriefing within 48 hours after experiencing any violent incident, discharging their firearm or witnessing a shooting.

16. Chapter 10 is devoted to the safe custody of firearms and ammunition, such as the requirements to be met by the safe (Section 86.12):

be manufactured from steel of at least 2 mm thick;

be capable of enclosing or covering the firearm concerned wholly;

have an effective integral locking mechanism;

have a hinge mechanism for the cover or lid thereof which shall ensure that when the locking pin thereof is removed, the cover or lid shall not be capable of being opened or removed;

have a facility with the aid or use of which the lock-away safe, apparatus, device or instrument may be securely affixed to another structure such as a wall or a floor, or the body of a vehicle; and

in the case of a lock-away safe used as contemplated in sub-regulation (5) if such safe can only be locked or opened with two or more keys that have to be used jointly.

17. In order to end the life cycle of firearms, South Africa regulates in Section 103 the disposal of firearms in insolvent or deceased estates. In addition, Sections 104 and 105 are devoted to the destruction of firearms and the deactivation of firearms, respectively.

18. With regard to penalties for infringements, Section 110 stresses that any person convicted of a contravention of or a failure to comply with any provision contained in these regulations may on conviction be sentenced to a fine or to imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment. The South African parliament is currently considering a Bill that aims to modify the permitted grounds for obtaining a firearms licence, eliminating possession for self-defence.

19. For comparative and illustrative purposes, a diagram comparing the regulatory process a person must complete to purchase a firearm in the United States and Japan is outlined below.3

United States

Japan

Pass an instant background check that considers criminal convictions, domestic violence and immigration status.

Take a firearm class and pass a written exam, which is held up to three times a year.

2. Buy a gun

Get a doctor’s note saying you are mentally fit and do not have a history of drug abuse.

Apply for a permit to take firing training, which may take up to a month.

Describe in a police interview why you need a gun.

Pass a review of your criminal history, gun possession record, employment, involvement with organized crime groups, personal debt and relationships with friends, family and neighbours.

Apply for a gunpowder permit.

Take a one-day training class and pass a firing test.

Obtain a certificate from a gun dealer describing the gun you want.

If you want a gun for hunting, apply for a hunting licence.

Buy a gun safe and an ammunition locker that meets safety regulations.

Allow the police to inspect your storage.

Pass an additional background review.

Buy a gun.

Source: Carlsen, A. y Chinoy, S. (2019). How to Buy a Gun in 15 Countries.

C. Regulations for specific policy goals

1. The UN Office for Disarmament Affairs (UNODA) published in 2013 the Impact of Poorly Regulated Arms Transfers on the Work of the UN. It is a document that seeks to develop a coherent UN approach to support international commitments to improve the regulation of international firearms transfers. Thus, this document aims to solve one of the problems generated by firearms, the trade in firearms and, in particular, the absence of a global framework to regulate the international trade in firearms.

2. Among the problems caused by this lack of regulation are the following: exacerbating conflict, hindering peacekeeping and peacebuilding; fuelling crime, organised crime and terrorism; firearms as a tool of violence (homicides); and impact of firearms on organised crime and gang criminality. These and other points will be addressed in this section.

I. Demand reduction

3. Reducing or discouraging demand is key to decreasing the proliferation of firearms. Measures to this end include the imposition of fees, or increasing the price of firearms, increasing the number of requirements to be met by licensees, waiting time, and reducing the density of firearms outlets. In addition, a good firearms purchasing policy must go hand in hand with full consumer understanding. That is, education on basic knowledge about the risks involved with firearms is vital for their correct use.

4. Another fact that seems relevant when counting the number of firearms per inhabitant is the availability of access to firearms in their constitutions. Currently, only three countries have a constitutional right to keep and bear arms. The United States, Guatemala and Mexico all have constitutional provisions that give their citizens the right to keep and bear firearms. According to Small Arms Survey Data, the United States is the country with the most firearms per capita (2017 data). In total, it has a rate of 120.5 firearms per 100 residents. And in terms of numbers of civilians legally possessing firearms and illegal firearms, Mexico ranks seventh, with a total of 16,800,000. In this way, the constitutionally recognised right to bear firearms seems to have implications for counting the number of firearms in circulation. In addition to having a strong impact on culture and society, the legal implications of the Magna Carta create an incentive for firearms ownership. On the other hand, as in the case of the United States, legislators who seek to modify the regulation of firearms may encounter problems because of the constitutional right to firearms.

5. In some jurisdictions interest groups have a disproportionate influence on governments which makes it difficult to regulate more restrictive firearms control laws. Despite the existence of political will in the government and legislatures, and even the population, some jurisdictions have found regulating firearms particularly challenging4. One particularly useful international framework for countering unfair lobbying and other tactics to influence public policy, is the Framework Convention On Tobacco Control (FCTC). As stated in the article Tobacco Control Regulations: Combating the World’s Leading Preventable Cause of Death, among the regulatory guidelines of the FCTC is the recognition of the “need to be alert to any efforts by the tobacco industry to undermine or subvert tobacco control efforts/regulations and the need to be informed of activities of the tobacco industry that have a negative impact on tobacco control efforts”5. One of the best practices implemented by national regulations to protect control policies and regulations from vested interests against control, applicable to the case of firearms, is Gabon’s tobacco control Loi 006-2013(Mesures en faveur de la lute anti-tabac).

Article 33

The State’s relations with the tobacco industry must be guided by the following principles:

tobacco products are lethal;

any report by the State and / or its representatives to the tobacco industry and to those who promote its interests must be transparent and justified; and

the tobacco industry, and with those who promote its interests, must act responsibly and transparently.

6. For more recommendations that could help officials defend the common interest against disproportionate lobbying, see the article Countering Unfair Lobbying.

II. Supply reduction

7. In the firearms market, the supply side is important, as accessibility to the market is decisive. One of the problems that the legislator may encounter when regulating firearms control is the permeability of its borders. This is why good border control is so important to reduce the probability of illicit entry or exit of firearms. The cooperation between different law enforcement agencies, such as the police and the military, is a factor that favours the proper functioning of border control. This cooperation should be transnational because border porosity is a shared problem. See our article Regulating Cross Border Services for more information on how regulation of cross-border services could be better implemented.

8. Another major problem in regulating the firearms market is the black market loophole. One of the current challenges is to curb criminal activity in the cyber world. Illegal marketplaces such as the Darknet function as uncontrolled suppliers of firearms. For more information on regulatory activity in this field, please see our two articles, Regulating online safety and tackling online harms and Cybersecurity: Regulating The Virtual World.

9. The novelty of 3D printers also poses a challenge for lawmakers seeking to regulate firearms, especially the manufacture of firearms by these machines. For the regulatory challenge of 3D printing of firearms you may refer to our article Decentralised 3D-Printing: A regulatory Challenge, which recommends the establishment of obligations. The obligations of 3D printer owners include only printing regulated products if the printing instructions have undergone the corresponding conformity assessment procedure, and undergoing specific training since they are printing high-risk products (in this case, firearms). Obligations on 3D printer manufacturers extend to placing a warning that 3D printing of certain products may be sanctioned or subject to legal conditions, such as obtaining a specific distribution license. For a more in-depth look at the regulatory challenge of regulating 3D printing, see The Handbook: How to Regulate?, page 227 paragraph 11.15.2.3.

III. Harm reduction

10. Lethality and damage caused by firearms can be alleviated through good firearms training. The prerequisite of practical control over the use of firearms for their subsequent acquisition can be key to avoiding accidents or negligence. Another aspect to consider is the type of weapons to which civilians have access. Firearm lethality has led many legislators to implement bans on certain types of weapons. For example, Russia has prohibited civilian possession of any long-barrelled automatic firearm with a magazine capacity of more than 10 rounds in Article 6 of the Federal Law on Weapons.

D. Conclusion

After reviewing the different firearms regulatory frameworks, it is clear that the international guidelines are too generic, leaving it to national legislations to detail their rules depending on their own context. Nevertheless, the notable differences in the process for obtaining firearms between countries seem to have a direct impact on the number of firearms-related deaths.

Japan, with its lengthy process, adequate training and detailed scrutiny of firearms holders, has one of the lowest rates of firearms-related deaths. With the advancement of technology, firearms regulations need to be frequently reviewed to keep up with the ever-changing lethality and sophistication of firearms. Thus, countries such as South Africa, the United States and Colombia have projects to improve their current regulations and create safer societies.

This article was written by Mayra Quijano, on behalf of the Regulatory Institute, Brussels and Lisbon.

3   According to data from the Small Arms Survey, violent deaths caused by firearms in 2018 in the United States amounted to 12,332; while Japan, by the same parameters, only obtained a figure of 10. This difference can be explained by the disincentive of the lengthy bureaucratic process of firearms acquisition, training and thorough screening of candidates for a firearms licence.

4   This is the case of the arms lobby in the United States. The National Rifle Association (NRA) is often questioned and accused of pressuring institutions to avoid restrictive regulation. To learn more about the NRA’s influence on firearms legislation, we recommend the article Planting in fertile soil: the National Rifle Association and state firearms legislation.

5   WHO Guidelines for implementation of Article 5.3 of the WHO Framework Convention on Tobacco Control “on the protection of public health policies with respect to tobacco control from commercial and other vested interests of the tobacco industry”, p.1, https://fctc.who.int/publications/m/item/guidelines-for-implementation-of-article-5.3.

Leave a Reply

Your email address will not be published.

seven + 1 =