Firearms Law in the Shadow of War
This post is a follow-on to Rafi Reznik’s fascinating recent analysis of developments in Israeli firearms law following the October 7 Hamas attack. As Rafi details in his post (and in a separate essay here), Israel has relaxed its criteria for issuing gun licenses to civilians and stepped up efforts to organize and arm rural citizen militias largely exempt from the country’s strict gun laws because they operate under the auspices of the government. In Israel, the current conflict has brought into sharp focus the trade-off between the benefits of allowing greater civilian firearm access during an existential national security threat and the costs of firearm proliferation in society, which are likely to persist beyond any short-term emergency. Here, I aim to explore some of those same issues in the context of another major current international conflict: the war between Russia and Ukraine, especially in the period beginning with Russia’s full-scale invasion of Ukraine in February 2022 up to the present.
Popular media outlets and legal scholars have suggested that the Hamas attack demonstrates the pernicious effect of strict gun regulation and have gone so far as to say that it “should be the end of the gun control debate in the United States.” Similar arguments were made following Russia’s invasion of Ukraine. After Russia mobilized for a general invasion, Ukrainian president Volodymyr Zelenskyy relaxed gun laws and tweeted that “[w]e will give weapons to anyone who wants to defend the country.” Commentators argued that “the chances of an effective resistance would be higher if there were more guns in circulation and more Ukrainians who were accustomed to using them.”
While information about Ukraine’s gun laws pre-2022 is difficult to pin down (especially in the English language), it appears that the country generally permitted law-abiding civilians to obtain and keep certain non-automatic rifles and shotguns—but not handguns—subject to first applying for and receiving a permit, storing the weapon(s) according to law, and complying with stringent public carry restrictions. The Ukraine Ministry of Internal Affairs stated in 2021 that there were approximately 1.3 million lawful civilian-owned firearms in the country (which has a current population of around 43 million). Civilian firearms, which were nearly nonexistent in the Soviet Union, were governed by a single federal Ukrainian regulation—Ministry of Internal Affairs Instruction No. 622—from the country’s early post-Soviet years through 2022. That instruction (which was promulgated by the ministry, not enacted by the legislature) established a permit system for most non-handgun firearms that appears superficially similar to the “may-issue” licensing laws that existed in some U.S. states until recently. Local police were tasked with running the application process and they had discretion to grant or deny permit applications based on objective (i.e., the applicant is below the minimum age or has a criminal history) or subjective criteria (i.e., the applicant fails to provide a compelling reason for wanting to own a firearm—acceptable reasons included hunting and sport shooting). Handguns, by contrast, were more strictly controlled. Handgun permits were occasionally “awarded” to retired military personnel or those engaged in target-shooting competitions but seemingly off-limits to the general civilian population.
During a push to reform the country’s gun laws prior to the 2022 invasion, this system was criticized as complex and impenetrable. Some argued that it facilitated corruption by allowing those with connections to the government or elites to evade the official requirements, and that the system encouraged the formation of a large black market for firearms (with potentially 5 million or more illegal firearms present in Ukraine as of 2021). Reformers proposed a comprehensive national gun law to replace the Ministry of Internal Affairs “instruction” and an amnesty program for those possessing illegal firearms. Self-defense was a primary concern, with gun-rights advocates citing weak law enforcement and the need for individuals to protect themselves against crime. It appears this push for new legislation floundered until immediately prior to the February 2022 Russian invasion, when the Ukrainian parliament passed a law (subsequently signed by President Zelenskyy) that is generally described as providing a broad civilian right to carry firearms in public during the wartime state of emergency. According to other reports, the law also formalized the country’s approach to civilian gun ownership beyond Instruction No. 622 and expanded the permitting criteria to include self-defense. It appears that at least some of the law’s reforms are limited by their terms to the period of martial law imposed following the Russian invasion, and that the new law did not wholly do away with the country’s permitting system (it is unclear whether the new law governs only long guns, or handguns as well). The initial approval of the law, combined with civilian anxiety about an impending Russian invasion, fueled a surge in gun sales in the country. President Zelenskyy’s government also spearheaded a push to distribute firearms, including automatic rifles, to Ukrainian civilians to resist the Russian invaders.
Some have tied developments in Ukraine to the U.S. Second Amendment and the wisdom of maintaining an armed citizenry. The NRA argued in a February 2022 blog post that “[w]hat is happening in Ukraine proves the wisdom of our founding fathers in drafting the Second Amendment.” And the communications director of the Firearms Policy Coalition was quoted as saying that the “invasion of Ukraine unequivocally reinforces the importance of the right to bear arms beyond defense against single attackers and reminds Americans that the Second Amendment is as relevant today as ever.” Some, however, drew a distinction between the nature of the Ukrainian resistance and the reason that most Americans purchase firearms—for personal self-defense, rather than resistance to tyranny or a foreign invader. One representative of a leading gun-violence prevention group said it was “‘deeply irresponsible’ for gun rights advocates to tie their ‘more guns everywhere’ advocacy to the Ukraine crisis.”
When it comes to the ongoing war in Ukraine, each side of the gun debate will see what it wants to see. For gun rights advocates, the fact that Ukraine and Russia are now bogged down in a seemingly endless stalemate will simply be evidence that Ukraine unnecessarily handcuffed itself from the get-go with excessively strict civilian firearms regulation. President Zelenskyy’s efforts were too little too late, and the country could not recover from placing itself in a situation where citizens were not armed and trained at the time of the invasion. If only Ukraine had embraced robust civilian gun rights years prior to the invasion, the thinking goes, it might by now have driven Russia out of the country. On the other side, some may see the grinding conflict as evidence that even broad relaxation of civilian gun restrictions has little real-world impact. Despite Ukraine’s intense efforts to arm civilians immediately following the Russian invasion, one might say, the country is still stuck in an intractable war against an enemy with little regard for casualty counts. Under this view, it would not have made a difference if Ukraine started the war with more guns in civilian hands. Moreover, one might be legitimately concerned about the proliferation of firearms in a post-war Ukraine—especially military-grade weapons that could prove especially dangerous in civilian hands.
Is it possible to agree with Ukraine’s push to arm civilians while also rejecting comparisons to the United States and the Second Amendment? To me, at least, invoking the Second Amendment and related counterfactuals in the Ukrainian and Israeli contexts is profoundly odd, given the different factors at play. We generally don’t presume that foreign laws and practices have much, if any, role to play in American constitutional law or interpretation. As Justice Scalia once said,
“[i]f there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way Europeans are. . . . What reason is there to believe that other dispositions of a foreign country are so obviously suitable to the morals and manners of our people . . .?
The same should be true in reverse. Using a foreign country’s experience to suggest that the gun debate in the U.S. is settled presumes that European experience can and should be relevant (perhaps even highly relevant) to debates about the U.S. Constitution. However, most of those who have invoked the Second Amendment in these discussions likely would not apply that view consistently. For example, if a European nation achieved tremendous success in reducing greenhouse gas emissions, would these commentators similarly say that the debate over federal environmental regulation in the U.S. was over? There are also many factors that might lead other countries to reject gun policies adopted in the U.S., including the presence of hostile actors close to a nation’s borders (and the concern that firearms might illegally proliferate to those very groups that threaten the country), organized crime and corruption, or private violence (as noted in Rafi’s earlier post). Thus, efforts to tie the Israeli and Ukrainian situations to the Second Amendment and the U.S. gun debate are perhaps just another illustration of gun exceptionalism—the idea that one should ignore country-specific prudential considerations when it comes to gun rights while generally recognizing that such considerations are relevant in other areas.
The Ukrainian experience suggests how other countries might respond to existential threats in a more reasoned manner. Far from adopting some kind of Second Amendment analogue and broadly encouraging civilian firearm access writ large, a country might adopt an approach focused on militia-like training and civic responsibility—relaxing the process for obtaining civilian firearms when those guns are used in organized training supervised by former soldiers. Encouraging civilians to accumulate large private arsenals may not do much to help resist foreign invasion if those citizens, for whatever reason, aren’t motivated or interested in helping the existing government fight off the invaders. And, as occurred in the former Yugoslavia during the 1990s, such policies can encourage civilian stockpiling of both legal and illegal firearms, often with deadly consequences. So civilian firearm accumulation is only one-half of the equation; the other half involves organizing, training, and inculcating civic duty and responsibility. Both Ukraine and Israel could potentially have done more in that regard pre-invasion. But this is a far cry from “prov[ing] the wisdom of our founding fathers in drafting the Second Amendment”—at least as the amendment is understood today. If anything, it proves the wisdom of the prefatory clause, that “a well-regulated militia [is] necessary to the security of a free state.”