Sen. Marco Rubio: U.S. stands alone with its Second Amendment rights
05/04/2014 12:00 AM
05/01/2014 3:05 PM
Rubio was one of a few 2016 Republican presidential hopefuls who spoke at the NRA’s annual convention in Indianapolis on April 25. He described the right to own a gun as part of the American Dream, highlighted the “futility” of existing gun laws and chastised the media for stigmatizing gun owners.
At one point, Rubio described the Constitution of the United States as unique.
“I’m always amused that those who come up to me and say no other country has a constitutional right like this,” he said. “As if to imply that there is something wrong with us. But we say no other country has a constitutional right like this not with scorn, but with pride.”
Wayne LaPierre, the NRA’s executive vice president and CEO, made a similar statement during his own speech to the annual meeting, saying, “Our Second Amendment freedom separates us from every other country on Earth.”
Is it correct that the United States is the only country that gives residents a constitutional right to bear arms?
The Second Amendment to the U.S. Constitution states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
We asked several legal experts if the United States is the only such country that has a constitutional right to bear arms.
Tom Ginsburg, University of Chicago international law professor and co-director of the Comparative Constitutions Project, has studied gun rights in national constitutions dating back to 1789.
Only a minority of constitutions have ever included gun rights, and the number has dwindled, Ginsburg concluded in a 2013 article he wrote with Zachary Elkins, a University of Texas government professor. But Ginsburg added in an interview with PolitiFact that “the precise language in each constitution is different, and no other country has the ‘well-regulated militia’ language.”
Of the constitutions that do have an explicit right to bear arms “ours is the only one that does not explicitly include a restrictive condition,” wrote Elkins in a New York Times op-ed.
The Constitutions Project zeroed in on two countries:
“We code only Mexico, Guatemala and the U.S. as having a right to bear arms,” Ginsburg told PolitiFact. While the constitutions of Haiti and Iran do mention guns, “the provision was too ambiguous for us to consider it a true right to bear arms.”
Here is how the Comparative Constitutions Project translates the right to own arms in Guatemala and Mexico:• Guatemala Article 38: “The right to own (‘tenencia’) weapons for personal use, not prohibited by the law, in the place of inhabitation, is recognized. There will not be an obligation to hand them over, except in cases ordered by a competent judge.”
• Mexico Article 10: “The inhabitants of the United Mexican States have the right to possess arms in their residences for their protection and legitimate defense, except such as are expressly forbidden by law or which have been reserved for the exclusive use of the Army, Navy, Air Force and National Guard. Federal law will determine the circumstances, conditions, requirements, and places in which the bearing of arms by inhabitants will be authorized.”
The authors of the article concluded that “the U.S. Constitution is alone in omitting any written conditions under which the government can regulate arms and munitions. In other countries, the right is typically limited to self-defense, either of the home or the state itself.”
Guatemala, they note, “gives its citizens the right to own weapons for personal use in the home and states that citizens can only be forced to relinquish guns by judicial order. Haiti gives citizens the right to use guns to defend the home but explicitly denies a general right to bear arms.”
They added that in the United States, the judicial branch has ruled that some restrictions on gun ownership are permissible — they just aren’t outlined in the Constitution itself.
“U.S. courts have allowed some exceptions to unconditional gun ownership in the form of local, state and federal statutes restricting ownership or possession of firearms,” the authors wrote. “In this way, the courts have served to render constitutional law somewhat less exceptional than the text itself would suggest.”
Other legal experts we consulted agreed that Mexican and Guatemalan constitutions come closest to the United States’, at least up to a point.
“If the question is an express right to arms in the nation’s Constitution, there’s also Mexico, Haiti and Guatemala,” said David Kopel, research director at the Independence Institute and adjunct professor of Advanced Constitutional Law at Denver University. “The Mexican and Haitian governments essentially ignore the right, and get away with doing so. For example, there is only one gun store allowed in the entire nation of Mexico.” (There is a long list of criteria to buy a gun at this sole legal outlet, according to the Washington Post.)
The NRA didn’t respond directly to our fact-check, but Kopel told PolitiFact that he frequently writes for the NRA’s magazine.
One law professor also suggested we look at Switzerland. PolitiFact explained in a fact-check in 2013 that the Swiss government requires nearly every able-bodied young male adult to serve in the citizen militia, where they are issued a military rifle. The guns are supposed to be for military use only, not for personal defense. Anyone who wants to keep the weapon after their years of service can do so if they can provide an acceptable reason; the gun is then refitted to limit its firepower.
Switzerland does not have a constitutional right to keep and bear arms, Kopel said.
We sent Rubio’s spokesman a 2010 article in Slate that stated Mexico, Haiti and Guatemala have the right to bear arms in their Constitutions, though it stated that Guatemala was the only one as broad as our Second Amendment.
Spokesman Alex Conant said the language in the Guatemalan Constitution isn’t as strong as the language in the U.S. Second Amendment, which includes “the right of the people to keep and bear arms shall not be infringed.”
Conant also suggested we take a look at the characterization of Guatemala’s gun laws on www.gunpolicy.org, a website hosted by the Sydney School of Public Health that supports global efforts to prevent gun injury. The website calls Guatemala’s gun laws “restrictive” while it labeled our gun laws “permissive.”
“All you seem to have established is that one country has some language similar to ours, but in practice does not treat the right in the same way,” Conant said.
Rubio said during a speech to the NRA that “no other country has a constitutional right” like the Second Amendment.
Mexico and Guatemala have the right to bear arms in their constitutions. However, the Second Amendment is unique because it is the only one that doesn’t include restrictive conditions within the constitutional language. We rate this claim Mostly True.
Join the Discussion
Miami Herald is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere on the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.