Abstract
The United States and India stand at opposite ends of the constitutional spectrum on civilian arms. The Second Amendment guarantees an individual right to keep and bear arms, which the Supreme Court of the United States has developed from District of Columbia v. Heller (2008) into the text-history-tradition test of New York State Rifle & Pistol Association v. Bruen (2022), refined in United States v. Rahimi (2024) and applied in United States v. Hemani and Wolford v. Lopez (2026). The Constitution of India contains no comparable guarantee. Possession is governed by the Arms Act, 1959, the Arms Rules, 2016 and the Arms (Amendment) Act, 2019, and High Courts have consistently treated an arms licence as a statutory privilege rather than a fundamental right under Article 21. This paper compares the two systems doctrinally and empirically. It examines the constitutional foundations, the licensing procedures for acquisition and carry, the grounds of refusal and revocation, and the standard of judicial review in each jurisdiction, drawing on statutes, leading and recent case law, official data and scholarship. It argues that the decisive difference lies in the allocation of the burden of justification: in the United States the State must justify a restriction by historical analogy, whereas in India the applicant must satisfy the licensing authority of a “good reason”. It further finds that Indian courts, while denying a fundamental right, have built meaningful procedural safeguards through natural justice and Article 14 review. The paper concludes with proposals for India: statutory timelines, structured reasons, a national licence database and sharper enforcement against illicit country-made firearms, which account for most seizures.
Keywords: Second Amendment; Arms Act, 1959; Article 21; Bruen; firearms licensing; comparative constitutional law.
IntroductionFew questions divide constitutional democracies as sharply as whether a private person may keep a gun as of right. The Second Amendment to the Constitution of the United States declares that the right of the people to keep and bear arms “shall not be infringed”.[1] Section 3 of India’s Arms Act, 1959 begins from the opposite premise: no person shall acquire, possess or carry a firearm unless he holds a licence.[2] The two jurisdictions also hold the world’s two largest civilian stocks of firearms. The Small Arms Survey estimated that, at the end of 2017, civilians in the United States held about 393.3 million firearms (120.5 per 100 residents), and civilians in India about 71.1 million (5.3 per 100 residents), most of them unlicensed.[3]
The contrast is therefore not between an armed and an unarmed society. It is between two legal ideas of the gun. In the United States the firearm is the object of an enumerated individual right. In India it is the object of a discretionary licence, which the Allahabad High Court, sitting as a Full Bench of five judges, characterised as “nothing more than a privilege”.[4] The constitutional label determines who bears the burden of justification, how intensely courts review the State, and how far a legislature may go.
[1] The Constitution of the United States, amend. II (1791).
[2] The Arms Act, 1959 (Act 54 of 1959), s. 3.
[3] Aaron Karp, Estimating Global Civilian-Held Firearms Numbers (Small Arms Survey Briefing Paper, Geneva, June 2018).
[4]Kailash Nath v. State of U.P., AIR 1985 All 291 (FB).