Firearms Law in the Shadow of War

  • Date:
  • December 08, 2023

This guest post does not necessarily represent the views of the Duke Center for Firearms Law.

The eyes of the world are on the catastrophe that has been unfolding in Israel/Palestine with the Hamas attack on October 7th and the war it has engendered in the Gaza strip and across the region. But the impact of these events reaches much deeper than the battlefield, accelerating myriad social and legal processes within Israel. One conspicuous site of such developments is Israeli firearms law, which is undergoing a rapid transformation. In this post, I outline these developments. There are grave concerns that the ongoing reforms in firearms law will exacerbate violence and augment friction and hostility between Jewish and Palestinian citizens of Israel. I have elaborated on these concerns in a separate essay; my purpose here is to explain more methodically what is going on in terms of the law.[1]

Israel is a country with mandatory army conscription for a majority of the population and many citizens remain on reserve duty afterward; Israel’s police force has undergone in recent decades various processes of privatization and de-centralization; and every Israeli school, shopping mall, and government office is guarded by armed security personnel. Accordingly, there is a convoluted spectrum, rather than a binary, between public and private firearms in Israel. Equally convoluted are the institutional frameworks responsible for regulating the ownership and usage of these weapons. The main statute governing civilian firearms is entitled “the firearms law”, enacted in 1949 and updated thereafter. The statute establishes several distinct licensing regimes: to manufacture, import, export or sell firearms; to operate a shooting range; or to possess a firearm. Within the latter category, licenses can be given either to individuals or to institutions, including qualifying local governments, companies providing private security services, and factories.

My focus here is on two legal reforms that account for the dramatic changes in Israeli firearms law at the moment. They pertain, first, to a rise in the numbers of individual gun licenses, and second, to a broadening of the range of activities that these guns are used for.

First, the regime governing the issuance of gun licenses for individual. Israeli citizens do not have a right to own firearms. The firearms statute states that “no person shall possess a firearm, except under license” (§5), and further clarifies the authorities have discretion whether to issue a license, to condition, qualify, refuse, or revoke it (§12). Accordingly, courts have repeatedly stressed that obtaining a weapon is not a matter of right but rather subject to a discretionary decision of government authorities under the standards of administrative law.

As recently as 2019, the supreme court remarked that “the existing policy, which has been found adequate in this court’s case law, is to reduce the number of firearms in civilian hands.” Empirical data cast doubt on the accuracy of the court’s statement in practice, and many firearms were simply redesignated as institutionally rather than individually licensed, but reduction was still the government’s desired goal at least until the mid-twenty-tens. According to a governmental report, in 1998 there were around 280,000 individually licensed firearms in Israel, or 4.7% of the population at that time, and in 2018 the number dropped to 147,000 or 1.6% of the population (which has grown in the meantime). This policy has since shifted 180 degrees. The change began with prior measures to increase individual gun ownership, first in 2015 and more significantly in 2018 (which came on the heels of a campaign from right-wing circles for recognizing a right to firearms in Israel, invoking the American example), intensified under the current far-right government and particularly the minister for national security Itamar Ben-Gvir, and culminated thanks to the war with Hamas.

Following October 7th, many Israelis do not feel safe in their own homes nor do they trust their government to protect them. Demand for firearms licenses has skyrocketed, and the government is more than happy to accommodate this demand by relaxing the licensing standards. Ben-Gvir himself is encouraging people to apply for licenses, e.g. by setting up an “Israel is arming itself” Q&A webpage and by leveraging his sway over public discourse for this cause, while his ministry is working on swift approvals. The overall number of licenses up to October 7th was 170,000. In the first 50 days after October 7th, as many applications for private firearm licenses have been submitted as in the preceding twenty years combined—around 250,000—and in November the average rate of approvals was around 1,700 a day. The current policy aims to triple the number of licensed gun-holders in Israel.

The licensing process is administered by the ministry of national security (formerly and more accurately, the ministry for internal security, as it is responsible for the police rather than the military. Indeed, the rebranding of policing as a matter of national security is part of Ben-Gvir’s ultranationalist agenda). To be eligible for a license, individuals must satisfy two cumulative sets of conditions: they must meet threshold requirements laid down in an administrative regulation, and they must satisfy at least one of an additional list of criteria whose details are more dynamic and not fully open to the public. The recent changes to the system are intended to grant more licenses by relaxing both kinds of requirements and the application procedure in general.

In terms of procedure, personal interviews of applicants—which are not legally required but were formerly conducted as a matter of administrative policy—have been forgone since the war broke out, and the government now conducts either telephone interviews or makes a decision without any interview at all. In the threshold category, the most consequential criterion that has been relaxed relates to a matrix of age, gender, and qualifying military experience (a criterion that excludes Israeli Palestinians, as they are exempt from military service): individuals can apply at 21 provided they have served two years of national service of any kind, or just one year for women; at 27 even without any kind of service, provided they are Israeli citizens; or at 45 if they are permanent residents. Whether a valid application is granted is discretionary and depends on policy considerations based on the additional set of criteria that is not fully transparent. Formerly, only individuals who served as combat officers could satisfy the requirement relating to military service. Since 2018, it is sufficient to have fulfilled regular service in significant combat positions and to have undergone the military training these positions require. As of 2023, any type of combat service will now satisfy the requirement. Alternatively, however, an applicant might check the box relating to area of residency, work, or studies. The list of qualifying localities is not advertised, but Ben-Gvir has indicated that his ministry has significantly relaxed prior geographical restrictions.

The geographic aspect connotes the second reform. Traditionally, the approved areas of residency for license holders were those near the country’s borders. Civilian armament was previously not understood as a matter of personal self-defense, protection against tyranny, or hunting (which is rare in Israel and requires a separate license from the ministry of environmental protection)—but rather as defense against terrorists or hostile forces in case they infiltrate Israel from the surrounding Arab nations or from the occupied Palestinian territories (the West Bank and the Gaza strip). Such remote rural localities (as much as “remote” is a relevant concept in a country the size of New Jersey) also have armed units of civilians operating under the auspices of the border police. These units do not require individual licenses. They are to be activated only in times of emergencies, such as the October 7th attack. Since then, however, over 800 new such units have been erected in various urban localities across Israel. This is not a grassroots but an organized campaign: the ministry of national security is assembling mass events of gun provision and on-the-spot registration. As one commentator put it: “They are giving out weapons like candy.”

The legal framework governing these emergency units presumes that they are almost always dormant. It is ill-equipped to regulate armed patrols in urban areas. The new units that have been set up in urban areas are overseen by the regular police. They are part of a legal framework but they lack a comprehensive regulatory scheme that would specify and limit the powers now allocated to these units. For instance, such groups have detained citizens despite lacking any clear authority to do so; the required training for participation is minimal and can be satisfied in just a few hours; and they have caused alarm when operating near a school in Tel Aviv. There is not yet any clearly articulated equivalent of a “sensitive places” doctrine in Israel, under which gun carrying would be restricted in the vicinity of locations such as schools and government buildings.

To continue with the Second Amendment analogy, the other caveats of Heller’s exceptions paragraph do apply in an even stronger form than in the U.S.: the police control which kinds of firearms are allowed, and license applicants must show that they are physically and mentally healthy. While individuals with protective orders issued against them, e.g. due to domestic violence, should be barred from obtaining firearms—unless a court explicitly rules otherwise—there is concern that the communication between different state agencies has not been able to keep up with the pace of armament. The level of absurdity of the situation is such that the U.S., with its unequaled admiration for firearms in the hands of ordinary citizens, recently withheld a shipment of guns to Israel for fear that if given to these makeshift units the weapons would find their way to West Bank settlers.

There is every reason for concern that many of these newly disseminated guns will end up with domestic abusers, organized crime, or settler militias. But they are dangerous even if used for their intended purpose. The American experience teaches that guns fuel a sense of danger and trigger a desire to find threats to defend against. In the U.S., Stand Your Ground rules often exacerbate the harms of ubiquitous gun carrying. While Israeli criminal law does have a retreat rule, it may still fail to sufficiently curb and censure unnecessary violence. In lieu of SYG, this may occur due to a different doctrine: putative self-defense. In recent years, courts have interpreted the self-defense provision of the penal code to only require a subjective standard for scrutinizing self-defensive acts. Thus, a person may be exonerated if they honestly believed a violent response was necessary to curb a threat, even if in reality it was not and even if a reasonable person would not hold such a belief. This doctrine accounts for multiple instances whereby a Jewish security operative has killed a Palestinian—or even a person mistakenly suspected to be Palestinian—for fear that they are a terrorist, although in reality they were not, and were exonerated due to a subjective belief in the need for self-defense. In fact, this line of reasoning was cited in a decision to close a criminal investigation of Ben-Gvir himself, after he brandished a gun at Palestinian security guards who asked him to move his illegally parked car at a conference center in December 2021.

Clearly, the current war will have a lasting impact on all Israelis and Palestinians, even after the dust settles. From a legal standpoint, the armament frenzy Israel is undergoing at the moment will probably be the most significant area of enduring impact. To meet this challenge, firearms law doctrines will have to make dramatic adaptations.

[1] Note: all following hyperlinks lead to sources in Hebrew.