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Summary

The German system of gun control is among the most stringent in Europe. It restricts the acquisition, possession, and carrying of firearms to those with a creditable need for a weapon. It bans fully automatic weapons and severely restricts the acquisition of other types of weapons. Compulsory liability insurance is required for anyone who is licensed to carry firearms.

In recent years, German gun-control law underwent several reforms that made it even more stringent. A new Weapons Act became effective in 2003 after a school shooting in the city of Erfurt in which a student killed sixteen persons. The new Act restricted the use of large caliber weapons by young people and strengthened requirements for the safe storage of firearms.

Another reform was enacted in 2009 in response to the massacre at Winnenden, in which an eighteen-year-old killed fifteen people in the course of a school shooting. This latest reform led to the creation of a federal gun register and to intense governmental monitoring of gun owners’ compliance with requirements for the safe storage of firearms. Pursuant to the reformed legislation, the authorities may at any time request access to the premises of any registered gun owner to monitor whether proper safe-storage procedures are being observed.

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Development of German Gun-Control Law

A constitutional right to bear arms is not part of the German legal tradition.[1] Instead, the development of German gun-control law mirrored the turbulent history of Germany. The concepts of the current licensing system date back to the Firearms and Ammunition Act of 1928,[2] which was enacted at a time when armed militias roamed the land and firearms from World War I were still in private hands. The Hitler regime demilitarized the enemies of National Socialism with the help of several restrictive and discriminatory decrees.[3] When this was accomplished, a more lenient Weapons Act was enacted in 1938.[4] It exempted party hacks from licensing requirements and aimed at improving the combat skills of the population.

After World War II, scattered laws of the occupying powers were in effect in different parts of West Germany together with fragments of the Weapons Act of 1938 until a constitutional change in legislative powers in 1972[5] paved the way for federal legislation on gun control. The first federal Weapons Act was enacted in 1972, and reformed and repromulgated in 1976.[6] Its primary goal was to restrict the availability of firearms in order to prevent crime.[7]

A new, even more stringent Weapons Act became effective in 2003. 8 ] Between 2003 and 2008 it was amended several times for the purpose of facilitating a more effective use of gun registers by law enforcement. The amendments also restricted the rights of heirs to own inherited guns and allowed the authorities of the states to enact special restrictions for especially endangered urban areas. 9 ] In 2009, the Weapons Act was amended 10 ] in response to a school shooting at Winnenden in which a seventeen-year-old gunned down fifteen persons in his former school (see Statistics: "School Shootings" below for statistics on school shootings). The 2009 reform made it more difficult for individuals to own multiple firearms, increased some qualifying-age requirements for juveniles at shooting ranges, and allowed the authorities to monitor the safe storage of weapons in private homes more effectively.

The 2009 reform also called for the creation of a National Weapons Register, which was scheduled to commence operations by January 1, 2013, one year earlier than required by the European Union (EU) Firearms Directive.[12] Compliance with the remainder of the Directive had already been accomplished with the enactment of the 2009 reform, which far exceeds European requirements.[13]

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Statistics

Incidence of Gun-Related Crime

For 2010, the Federal Criminal Police Office reported a total of 3,216 homicides. Of these, 147 were perpetrated by gunshot, and in another 13 cases the victim was threatened with a gun.[14] For 2009, the Office reports 3,269 homicides, 179 of which were committed by gunshot, with a gun being used as a threat in another 14 reported cases.[15] The German population is approximately 81.7 million.[16]

School Shootings

Germany has suffered several school shootings in the last decade, the most egregious of which occurred in 2002, 2006, and 2009. In 2002, a nineteen-year-old, who had been expelled from his high school in Erfurt, entered the school armed with a semiautomatic pistol, shot and killed sixteen persons, most of them teachers, and then shot himself.[17] In 2006, an eighteen-year-old entered his former school and shot and wounded five persons before killing himself. He was armed with a sawed-off percussion rifle and a sawed-off bolt-action rifle.[18] The incident led to increased statutory restrictions of the online distribution of violent computer games to juveniles.[19]

In 2009, in the massacre at Winnenden, a seventeen-year-old entered his old school armed with a semiautomatic pistol and started a shooting spree, which he continued while fleeing from the police, killing a total of fifteen persons and himself and wounding many more.[20] The shooter had obtained the gun from his father’s bedroom, where it had been kept unlocked. The father was convicted of negligent homicide for the failure to lock up the gun, yet on appeal the Federal Court of Justice reversed the decision because of procedural errors. A new trial against the father is pending. It appears that prior to the massacre, the alleged perpetrator had been undergoing psychiatric counseling. The father is thus suing the psychiatric clinic, holding the clinic liable for failing to inform him of the dangerous condition of his son, who allegedly had uttered death threats to the psychiatric personnel and about which the father had not been told.[21]

Gun Ownership

According to the first computations of the newly created National Weapons Register, close to 5.5 million firearms are privately owned in Germany and the total number of gun owners is approximately 1.4 million individuals.[22] The percentage of households in which guns are owned varies among the German states. Gun ownership is lower in the states located in former East Germany and in the city states of Berlin, Hamburg, and Bremen. In these, the percentage ranges from 3.2 to 5.7 of all households. In the formerly West German states, the percentage ranges from 6.2% to 12.3%.[23]

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Current Gun-Control Law

Overview

Germany has one of the most stringent gun control laws in the world.[24] The current Weapons Act deals with guns suitable for private ownership. It contains a highly differentiated regime for licensing the acquisition, possession, and carrying of permitted weapons that restricts, according to criteria of need, the number and types of guns that can be owned or purchased, and has specific age restrictions for different types of weapons. The Act bans automatic firearms, regulates the production of and trade in weapons, and has reporting requirements that allow the tracing of every legally owned firearm, including those acquired through inheritance. Moreover, the Act contains stringent and enforceable requirements for the safe storage of guns. The Act is implemented by the administrative authorities of the states, except for the newly created National Weapons Register, which is a federal agency.

Licensing

A license is required for any dealings with a firearm, and various types of licenses can be granted depending on the need of an applicant. The most common ones are the license to acquire and possess a weapon (weapons-possession license, Waffenbesitzkarte), and the license to carry a weapon (weapons-carrying license, Waffenschein).[25] Certain general requirements apply to the granting of all licenses, and specific additional requirements apply to different types of licenses. In particular, there are special rules for hunters[26] and marksmen.[27]

Licenses must generally be reviewed by the authorities after three years, even if they have been granted for an indefinite time. The authorities may also review licenses at shorter intervals, particularly if there appears to be a reason for scrutiny. Moreover, licenses can be tailor-made to the specific situation of the applicant by adding special restrictions,[28] such as limits as to time and place and special safe-storage requirements.[29]

The general requirements for obtaining any type of weapons license are

a minimum age of eighteen years;

the proven reliability of the applicant;

knowledge of weapons technology and

law, and expertise in the use of a firearm;

law, and expertise in the use of a firearm; five years of residency in Germany; and

a need for the weapon.[30]

Under the reliability criteria, certain criminal records disqualify an applicant, as does membership in a criminal or terrorist organization or the justified suspicion of the authorities that the applicant would abuse the license or not live up to its requirements.[31] Additional disqualifying circumstances are the lack of legal capacity; personal disabilities, such as addiction to alcohol or drugs; mental illness or feeblemindedness; and any other indications that the applicant might not live up to the licensing requirements. The authorities must verify the criteria through the search of criminal records, police databases, and any other information that they deem relevant.

A need for a weapon, and therefore a license, is recognized for hunters, marksmen, members of traditional shooting associations, endangered persons, collectors, experts, producers and dealers, and private security firms. For these groups, the public interest in safety and order will be balanced with the interest of the potential gun owner. If licenses are sought for other purposes, the public safety interests may well prohibit their being granted, given the fact that one purpose of German gun control law is to hold down the number of guns under private ownership.[32]

A weapons-possession license authorizes the acquisition of a specified number of weapons. The license will generally be valid for acquisition purposes for one year and will be granted indefinitely for the purpose of possessing the weapon. The number of weapons to be permitted depends on the needs of the applicant. For hunters, permits will grant an indefinite number of long arms but only two short arms,[33] whereas members of traditional shooting associations are restricted to three repeating long arms.[34]

Marksmen are generally allowed to own three semiautomatic long arms and two short arms. For each acquisition of a firearm, however, marksmen must apply separately for a license that permits acquisitions for up to one year.[35] If the marksmen have requirements for additional firearms for their practice or for competitive sport, these must be documented by the shooting club.[36]

The criteria for granting a weapons-carrying license are very restrictive. They usually require proof that the applicant is seriously endangered and that the danger could be alleviated through the carrying of a weapon. [37] Some exceptions are made for hunters and for the personnel of private security firms.[38] Holders of a weapons-carrying license must carry liability insurance with coverage of up to 1 million euros.[39]

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Age Requirements

The general age requirement for a weapons license is eighteen years.[40] A higher age limit of twenty-one years, however, exists for a weapons-possession license for marksmen. This higher age limit was introduced after the Winnenden school shooting,[41] but makes exceptions for properly certified shooting clubs that use weapons of a lower potency. An eighteen-year-old participant in such a club may obtain a license for a suitable firearm.[42] On the other hand, marksmen below the age of twenty-five who apply for their first weapons-possession license must undergo a psychiatric evaluation.[43]

In general, the Weapons Act prohibits the handling and use of weapons by persons below the age of eighteen.[44] Exceptions to this principle exist for young people who are using a firearm in a training program or employment relationship under proper supervision,[45] or at shooting ranges. Prior to the 2009 reform, fourteen-year-olds were permitted to shoot with high-caliber guns at shooting ranges. The reform raised this age limit to eighteen.[46] However, young people between the ages of fourteen and eighteen may still be trained in marksmanship with less potent firearms under properly accredited supervision.[47]

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Germany categorizes firearms as either weapons of war or weapons suitable for civilian use. War weapons are listed in the War Weapons Act and cannot be circulated among the population.[48] Weapons that are potentially suitable for civilian use are governed by the Weapons Act and its prohibitions and restrictions.

The Weapons Act bans fully automated firearms.[49] It also bans semiautomatic firearms that are not intended for hunting or sport shooting; pump-action shotguns with pistol grips or of a short overall length; firearms that are concealed in other objects; firearms that can be disassembled into unusually small parts; lasers, lights, projectors, and night-vision devices that can be mounted on the firearm to throw light on the target; and certain multiple-shot short arms in calibers under 6.3 millimeters, where the projectiles are not propelled solely by the priming charge.[50]

Pump-action shotguns with pistol grips were banned in 2008 in response to the Erfurt massacre of 2002.[51] The above-described multiple-shot short arms were banned at the same time because shots fired with these weapons are able to penetrate bulletproof vests.[52]

Firearms that are not banned are still subject to various restrictions on the basis of licensing provisions and intended use. Thus, for persons who require a firearm for self-defense, the authorities may, based on their judgment, issue a license for only a particular type of firearm.[53] For marksmen, many restrictions ensue from the limits placed on the number of firearms that can be owned.

Safe Storage of Firearms

Licensed gun owners are responsible for keeping their weapons under lock and key, and the law provides detailed specifications on the quality of the storage containers; these vary according to the potency of the weapons.[54] Owners must inform the authorities of the safe-storage measures taken as well as allow the authorities to enter their dwellings for the purpose of monitoring compliance with safe-storage regulations.[55]

It appears that such access must be granted without a search warrant, and, even though the German Constitution protects the privacy of the home, access cannot be refused if there is a threat of imminent danger.[56] Random inspections, however, must be expected at any time and without any probable cause or suspicion. This increased right of the authorities to conduct inspections was enacted in 2009 in response to the Winnenden school shooting, and much has been said about the interpretation of this right.

It appears that the authorities may only inspect for compliance with weapons-storage regulations but not conduct any other searches.[57] If the weapon is outside of its container and the owner claims to have been cleaning the weapon, the authorities will have to evaluate this claim.[58] It also appears that a homeowner has the right to refuse entry to the authorities if he or she has a good reason. A homeowner who frequently refuses entry, however, may be violating the statutory duty to cooperate with the authorities on the safe storage of weapons,[59] which may lead to revocation of the license. The far-reaching inspection rights of the authorities aim to ensure that gun owners will have an incentive to keep their guns locked up.[60]

Special safe-storage rules are also in effect for inherited firearms. An heir who is not licensed to possess firearms must prevent the use of the inherited firearm by installing a blocking device. If the heir is licensed, he or she must register the gun within one month of acquisition by inheritance. An unlicensed heir has one month to apply for a weapons-possession license,[61] which will be granted or denied in accordance with the generally prevailing licensing criteria.[62]

Registration

The provisions on the registration of firearms ensure that every legally owned gun is registered with the authority that granted the weapons license. The acquirer of a firearm must register it within two weeks of acquisition,[1] and the authorities must keep records that allow for the tracing of a firearm’s ownership from the time of its manufacture.[64] Moreover, the weapons authorities must communicate ownership records to the local Registers of Domicile,[65] who record the domicile of every inhabitant of Germany[66], while the Registers of Domicile are to inform the weapons authorities of every change in residency or the death of a gun owner.[67] This information is helpful for keeping track of inherited guns and enforcing recording and licensing requirements.

The efficiency of the registration system has been greatly enhanced with the newly created National Weapons Register, which commenced its operation in January 2013.[68] Now the approximately 550 weapons authorities provide data on firearms registration to the National Register. All weapons registers, be they local or national, provide their information to other German authorities to the extent reconcilable with German privacy legislation.[69]