SAIRR Today: Going off at half cock - a better model for the management of guns in our society - 3rd July 2009

Original Article Link: http://www.sairr.org.za/sairr-today/news_item.2009-07-02.8744862604

Last week the Pretoria High Court issued a ruling effectively suspending several provisions of the Firearms Control Act of 2000. This piece of legislation had long been dogged by controversy. Firearms owners and their representative bodies will now go to court to argue the constitutional and administrative failings of the Act. The mess that the government's handling of the Act is fast becoming does not revolve around the question of whether people should have guns. It is rather a question that raises important constitutional, governance, and crime prevention matters - not least of which is the law of unintended consequences. The Institute this week suggests a more workable framework for the management of firearms in our society.

The 1994 transition corresponded with the establishment of a number of anti-gun lobby groups the most notable of which was Gun Free South Africa. This group saw its mandate as campaigning for a safer South Africa through restricting firearms ownership and enacting stricter firearms laws. With the backing of the ANC in government and think-tanks such as the Institute for Security Studies in Pretoria these lobby groups won significant concessions from the post-1994 government on laws governing firearm ownership.

These culminated in the passing of the Firearms Control Act of 2000, which replaced South Africa's 30-year-old firearm licensing laws. The Act is a very convoluted piece of legislation but its chief provisions, in where they differ from previous legislation, are as follows:

- People wanting to own firearms would have to prove a need for them.

- All current firearm owners would have to re-apply for their current licensed firearms motivating a need for them.

- People can own at most four firearms. Owning more than four would require someone to be granted the status of dedicated hunter or sportsman. Even with this status the need for each additional firearm would have to be proven.

- People owning surplus firearms would have to surrender or dispose of them before 30 June 2009 or face prosecution for being unlawfully in possession of those firearms.

- If the police deemed that a person did not need their firearms they would have to surrender or dispose of them.

There were also a number of provisions requiring a person to be declared fit to possess a firearm. These included passing a criminal record check and having a gun-safe. While much was made of this in the media it is not materially different from that required by the previous act.

An immediate problem in implementing the Act was that the police refused to release a set of objective guidelines against which the need to possess a firearm could be evaluated. The police went on record saying that if they released such guidelines everyone would use them! Hence the practice of evaluating applications became a subjective administrative action and generated much controversy and unhappiness among licensed firearm owners.

A second problem faced by the police was that they seemed to have underestimated the massive administrative burden they were undertaking. While they provided assurances, as late as a few months ago, that most licence applications were finalised within a 3-month period, this appears rarely to have been the case. Delays of several years have become common.

The table below shows that at the end of 2008 only approximately 330 000 of the close on 900 000 renewal applications submitted to the police since 2005 had been processed.

	2005	2006	2007	2008	Total	Percentage
Applications received	126404	215931	259393	263583	865311	-
Fully processed	6954	53828	136506	136400	333688	39% of those received since 2005
Licences granted	4089	48159	125248	133560	311056	93% of those fully processed
Applications rejected	2865	5669	11258	3250	23042	7% of those fully processed
Applications on appeal	0	26	162	510	698	-

A third problem is that with the licence renewal period due to expire in June 2009 only 900 000 of between two and four million licences had been submitted for renewal. The police have stated that they will arrest all those who did not renew their licences for unlawful possession of firearms and ammunition after June 2009. But the massive scale of civilian non-compliance with the Act will mean that they can at best make scapegoats of a few individuals. It is unlikely that judges will look kindly on the police and prosecutors for bringing such a nightmare of selective and "state-created" prosecutions into their courtrooms.

A fourth problem is the question of liberty versus security. To what extent should the State be able to dictate that people who cannot prove a need to possess "something" should be forced to dispose of it. Even if it could be established that the civilian ownership of guns "caused" crime, would it be correct to suspend civil liberties to obtain greater security? The danger, as the adage goes, is that you may end up with neither.

The greatest problem facing the Act is that it does not appear to work as the crime prevention mechanism it was originally billed as. No side of the South African gun debate disputes that firearms in the wrong hands are a serious threat. There are a great many such firearms as our violent crime rates attest. Why then is it the case that the primary intervention designed to curb such threats has after five years produced only inconclusive results?

The police have never kept data that allows for the accurate tracking of what kinds (semi-automatic handgun, revolver, bolt-action rifle, double-barrel shotgun, etc) and status (licensed, stolen, ex-police/military, liberation movement) of firearms are used in crimes in South Africa. Nor has any data ever been maintained on the use of firearms in self defence.

Therefore only macro-crime trends can be assessed.

South Africa's murder rate came down from 66 per 100 000 in 1994 to 40 per 100 000 people when the Act was implemented in 2004/05. Since then the rate has fallen further to 38/100 000. The armed robbery rate increased from 218/100 000 in 1994 to 272/100 000 in 2004/05. It has subsequently fallen to 247/100 000.

These macro trends are inconclusive and inadequate to make any claims about the role of the Act in reducing levels of crime - particularly when considering that despite the overall drop in armed robbery, house robberies increased by 50% since the Act was introduced. Armed robberies at businesses increased by 200%. Hijackings, which are almost exclusively executed with guns, also increased.

Not knowing what guns were used in what crimes, the police decided to treat all guns in the same way. Hence all licences for any type of weapon would have to be motivated and renewed. While this was certainly in line with the disarmament and gun-free sentiments of Gun Free South Africa and the Institute for Security Studies, it was a wasteful approach.

It would have been far wiser to group guns into two categories:

- Category A being those guns likely to be favored by rank and file hijackers and bank robbers.

- Category B being those unlikely to be employed in the commission of such crimes.

Category A guns would include all semi-automatic handguns, revolvers, carbines, semi-automatic rifles, and any assault weapons in private hands. Category B guns would include single and double rifles and shotguns, and bolt-action rifles of the type employed by sports shooters and hunters.

The police should then have commissioned an audit of all category A guns.

Based on those findings they could propose a method of regulation and control of such weapons. This regulation would probably include restrictions on the sale of such weapons through a licensing process. Importantly this process would determine whether a person owing such a weapon is a "fit and proper person" and not whether they "need" such weapon. This can in turn be established through such firearm owners having to comply with an objective set of criteria published by the police.

But the most effective regulation of category A weapons would have been achieved through introducing better "concealed-carry" laws for South Africa. Despite the absence of any proper research it is reasonable to suggest that the carrying of a loaded and concealed weapon in a public place or vehicle is a key step in the commission of many violent crimes in South Africa. But the current Act requires that firearms carried in public places be kept concealed!

Revised concealed-carry laws would also make the police's job easier. The possession of a loaded and concealed weapon in a public place would be a sufficiently serious crime to warrant a prison sentence.

Concerns about the "need" or origin of the weapon could be secondary concerns. It would at the same time make the jobs of criminals much more difficult as the transport and possession of firearms to be used in crimes would carry considerable risk.

It is quite likely that if properly implemented by the police such laws should, within five years, see a decline in firearm related crime. If it does not it will be because the police have not been effective in conducting appropriate searches, checkpoints, and other policing functions.

A clear set of guidelines for issuing concealed-carry permits could be published for those who wish to carry loaded guns in public. People will be able to have guns in their homes for self-defence as they see fit and subject to normal criminal and other laws. It is true that an alert and armed homeowner has significant tactical advantages over a criminal trying to break into his home. That is not the case for someone carrying a gun in a public place, where the criminal has the element of surprise and therefore advantage.

As for category B weapons, it remains improbable that they will ever become the tools of choice for South Africa's hijackers and its bank robbers. It is unlikely that anyone trying to rob a South African bank with a classic double rifle or Olympic target pistol would get very far. Regulating such weapons therefore becomes a question of civilian disarmament and not crime prevention. These weapons could be licensed as before or even deregulated, as is the case with muzzle-loading rifles and pistols. Alternatively the police could license the "people" owning the guns and not the guns themselves in order to reduce their administrative burden. The sale of guns could then be regulated through licensed gun dealers only selling or buying from licensed gun owners.

Considering the legal headache and potential liability that court challenges to the current Act will cause the new minister of police, he would be well-advised to give some of these proposed amendments some serious consideration. If he implements some of them then the police would win back considerable time and resources. They may even find some time to track what kinds of guns are used in what kinds of crimes. Once that project is complete, they might even prioritize looking for the kinds of criminals who never bothered to license their weapons in the first place.

As this article was being edited The Star published a front page story of a Johannesburg homeowner who shot his domestic worker's teenage grandson between the eyes with a hunting rifle. He had mistaken the boy for an intruder. It is unclear how regulations can serve to prevent this kind of thing as it would require regulating against stupidity or fear. It is sure that the story will again ignite the for and anti-gun debate in South Africa. It is an example, though, of why the police need to commission research to track all firearm-related incidents from the perspective of the type and source of the gun used and the nature of the incident. Where people are guilty of negligence they should be swiftly prosecuted and sentenced as a warning to others. More than any regulation such action will make South Africa a safer place.

Frans Cronje