smal arms control legislation in brazil from vargas to lula by carolina iootty

8/6/2019 Smal Arms Control Legislation in Brazil From Vargas to Lula by Carolina Iootty

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Small Arms Control Legislation in Brazil:From Vargas to Lula

Carolina Iootty Dias

IntroductionThis chapter describes the evolution of Brazilian arms control legislation since its inceptionover 70 years ago, and seeks to show that this legislation has historically favored nationalsecurity over public security and promoted the growth and strengthening of Brazils arms industry (as a means to safeguarding national security) rather than regulating that industry in functionof the individual security of Brazilians. During the years of military rule, naturally, these prioritieswere only strengthened.

To study firearms control legislation in Brazil is also to study Brazil s democratization,via a process in which civil society has gained ground, particularly in the wake of theexplosion of criminal violence in the 1980s, in an area which the military ethos hasalways considered secret and restricted.

In Brazil, firearms have always been directly or indirectly controlled by the Army. Thefirst document to lay down rules on the fabrication and circulation of firearms andammunition in Brazil was Presidential Decree n.24.602 of July 6, 1934, which was laterregulated 1 by Decrees n.s 1.246 of December 11, 1936, n.47.587 of January 4, 1960and n.94 of October 30,1961.

Decree 24.602Decree 24.602, signed by Getlio Vargas, was a quite simple document that prohibited theproduction of military weapons by private companies, permitted the production of firearmsand ammunition for hunting, and made no mention whatsoever of civilian-use firearms.

Authorizations for private companies to produce or sell military weapons and ammunitioncould be conceded on an exceptional basis, provided that these companies gave thegovernment priority in purchasing their products, allowed officials of the Army (then called the

War Ministry) to inspect their premises, and agreed to submit to whatever restrictions the federalgovernment judged prudent to place on their domestic or foreign sales of weapons andammunition.

As such, most private arms companies were manufacturers either of hunting firearms andammunition, or of explosives, in which case they had to submit to virtually the same restrictionsas potential producers of military weapons, including the sale of products at home and abroad,and the importation of raw materials. Interestingly, the decree states that restrictions could bejustified by the expectation of possible occurrences that would threaten public order andsecurity or when higher reasons of the economic order arose. What occurrences or higherreasons these may have been, the decree did not say.

1In Brazil, many laws and decrees are promulgated in a general terms, with specifics such as time periods, fines and duties, and legal pen

regulation process, usually in the form of a regulatory decree.26


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In order to get a production or sales license from the War Ministry, companies needed asidefrom the customary red tape to declare all manner of minutiae, such as the covered area oftheir factories, the number of workshop buildings, the volume of annual production, the 8-hour production capacity, number of employees, the brand names of the machinery in theworkshops, the formulas of any secret products, and even the distances between the factory and all of its smaller buildings and warehouses. Once received by ministry officials, thesedeclarations would be kept in secret.

Most interestingly, Article 5 of this decree stated that factories should abide by productionformulas approved by the War Ministry. The decree also importantly established that WarMinistry inspectors would spend no more than one year assigned to a single factory, afterwhich time they were to be substituted.

Article 9 of the decree mandated the immediate registration with the War Ministry of all armsfirms in existence or yet to be established, including non-manufacturing firms involved in theimportation, manipulation, or sale of hunting firearms and ammunition. The War Ministry periodically promulgated inspection guidelines for both inspectors and firms. These guidelinesare the equivalent of todays Defense Ministry ordinances.Decree 24.602 was revoked on January 28, 1965, by Decree 55.649, which was called theInspection and Control 2 Service Regulation for Importation, Storage, and Shipment ofControlled Products by the War Ministry R105 (Regulamento para o Servio de Fiscalizaoda Importao, Depsito e Trfego de Produtos Controlados pelo Ministrio da Guerra,SFIDT R105). As it also covered manufacture and sales, the regulations name was laterchanged to the Inspection and Control Regulation for Controlled Products (this change wasmade in Decree n.88.113 of February 1983). It is commonly known as R105.

The publication dates of R105 (first version, 1934; second version, 1965) clearly coincidewith authoritacion periods in Brazilian history. This is no coincidence. Inspection and controlof so-called controlled products firearms, ammunition, explosives and chemical agents had always been carried out unilaterally by the Army, with no parallel control on the part ofcivil institutions. As such, it makes perfect sense that the legal documents establishing thiscontrol were promulgated during dictatorial periods.

Decree 55.649Decree 55.649 of January 1965, describes itself as a simple updating of the original Vargas-era regulation, making constant mention of and reference to the earlier decree. In fact, Decree55.649 was much more than this. The earlier decree was quite simple, with few details. The1965 decree was a virtual encyclopedia of controlled product inspection and regulation. Inthis decree, and not the Vargas decree of 1934, lies the true embryo of what are today the

rules for arms and ammunition control by the Army.2The activities of control, inspection, and monitoring are all covered by the Portuguese wordfiscalizao , which is herein translated using whatever combination of

these words is most appropriate to a given context. (Translators note)


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Here at the outset of the military authoritarian regime, the government sought to toughenregulation of production, commerce, and circulation of firearms and ammunition. Themilitary dictatorship concentrated control over circulation of firearms and ammunition withinthe sphere of the military (to an even greater extent than it already was), but also allowedthis control to remain undivided amongst the levels of the military hierarchy or that of thepolitical police (which, as we will see, had its own logistical function in arms control).

Article 5 of the decree is perhaps the most curious: it determined that inspection and

monitoring of controlled products be carried out so as to give the greatest incentive to theprogram of national economic development, without damaging the objectives of NationalSecurity . If read together with Article 6, this reveals one of true objectives of the authors ofDecree 55.649, that of openly stimulating the Brazilian arms industry. Article 6 reads: Sothat there be produced in this country firearms, ammunition, gun powder, explosives, andtheir component parts and accessories, all for civilian use, of the highest standard andquality, with the expectation that these products may eventually be exported, the War Ministry [...] will arrange for the production of Technical Norms and Standards that will serve asguidelines for quality control practices.

And what was meant by inspection and monitoring of controlled products? Article 10 explainsthat this term includes control of the functioning of factories that produce controlled products formilitary and civilian ends; control of commerce and transportation of these products for civilianuse; and finally, the registering of companies involved in importation, exportation, and expeditingof customs procedures of controlled products.

The main principles behind this control regime were:

a) The supreme interests of national military defense;b) The internal security of the country;c) Public security and placidity;d) The development of a national industry for these products, aiming to improve the technology,

productivity, and competency of these companies, for reasons of national security, viacompetition that leads to increasing improvements in national production and the supplying ofthe national market, as well as simultaneously relieving pressure from foreign debt.e) The probability of exporting controlled products of high quality; andf ) Technological and economic assistance to the controlled products industry, with an eye towardthe possibility of use of this technology in case of a national or international emergency.

The control regime was structured in this way: the War Ministry was responsible for authorizingproduction and for inspection in general. Within the ministry, the highest organ within the controlregime was the Department of Production and Works (Departamento de Produo e Obras,DPO), which published so-called General Action Ordinances (Normas Gerais de Ao, NGA),rules linked to administrative decisions on controlled products. The DPO supervised the organthat in fact carried out administrative tasks, the SFIDT mentioned above. Parallel to the DPOwas the Directorate of Military Equipment (Diretoria de Material Blico DMB), which wasresponsible for coordinating and orientating control activities.


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Subordinate to the DMB was the Directorate of Controlled Products Inspection (Diretoria deFiscalizao de Produtos Controlados, DFPC), responsible for direct inspection. The DFPC,in turn, controlled the Controlled Product Inspection Services (Servios de Fiscalizao deProdutos Controlados, SFPCs) which had spread throughout the military organs of the country.

In addition, controlled products were monitored indirectly by the following organs:

a) Sectors of the civil or military police, when specifically charged with the control of firearms,

ammunition and explosives;b) Organs of the civil or military police or the federal highway police, charged with theinspection and control of merchandise;c) Tax inspectors;d) Federal, state, territorial, or municipal authorities with assignments related to controlledproducts firms;e) Head technicians and administrators from those firms registered with the War Ministry;f) Chief administrators of clubs or associations registered with the War Ministry;g) Brazilian diplomatic and consular officials, responsible for verifying, authenticating andconceding visas in import or export documents for controlled products.

Naturally, it was the War Ministry that decided what products were controlled or not. Likewise,the War Ministry decided what types, models, and calibers of firearms and ammunitions wereconsidered permitted or prohibited. The Ministry also decided what types and calibers offirearms and ammunition could be imported and set quotas. This point should not beoverlooked: it was the mechanism by which that national arms industry was protected fromforeign competition. In addition, the Ministry made decisions about exportation of controlledproducts and the destination of firearms seized by police and military authorities.

The war Ministry also decided the maximum quantities of permitted-use firearms andammunition that civilians and military personnel could acquire for personal and immediateuse, independent of registration In other words, persons not registered with the ministry butwho felt they needed a firearm and ammunition for immediate use could receive authorization.Continuing with this brief analysis of the historical character of this document, we should notethat it called for repressive measures against firms that carried out any excessive or suspectactivity with controlled products. The pertinent organ here would be the SFIDT (Article 27, f).

According to the decree, the principal duties of the Civil Police were to monitor commerceand traffic of controlled products within each state, territory, and in the Federal District (Braslia);collaborate with the Army in the expediting of customs formalities for arms imported by registered firms; and authorize the transport within the country of firearms registered to civilians.In addition, the Civil Police authorized transfers or donations of firearms and ammunitionbetween persons, and registered arms collectors. Licenses to own and carry firearms wouldalso conceded by the Civil Police, who nonetheless were given no pre-established criteria tofollow. The decree speaks only of authorizing licenses for responsible citizens ( civis idneos ).


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The decree also stated that in the registering of firms with the War Ministry, the certificates ofgood standing would be the responsibility of the Civil Police, through its social and politicalpolice organs. Finally, authorization of civilian-use ammunition by registered firearm ownerswas also a responsibility of the Civil Police.

For a company to obtain a license, it had to complete a series of requirements. Besidesobtaining a certificate of good standing from the political or social police and agree to any restrictions which the War Ministry might deem prudent to place on production, sales (domesticor foreign) and the importation of raw materials (maintained in the 1965 decree from theoriginal Vargas era legislation), the firm had to, before producing a single product, providethe production formula to the War Ministry and, in the case of firearms and ammunition,furnish detailed designs of its products containing ballistic characteristics of each type andcaliber. In addition, owners would have to fill out a questionnaire, which requested the followingpieces of information, among others: total number of workers, workers per line of production,8-hour production capacity for each product, information on the possibility of increasingproduction, and a five-year plan for increasing production.

Once it had received all this information, the War Ministry would consider whether the installation of

a factory would be in the interest of the country, if the quality of the product to be produced wasdeemed in keeping with the good name of Brazilian industry, if the owners were truly in goodstanding in moral, technical, financial, and politico-social terms, and, in the case of firearms andammunition factories, if they would be able to dedicate certain percentages (to be proposed by theDPO) of their output to the production of war material.

The extent of power that the decree gave to the War Ministry can be seen in Article 46, which mandatedthat the interests of national security be taken into account when considering requests for gun licenses,and that under these conditions the Ministry would not be required to declare its reasons for any future rejection or dismissal.

When a foreign firm sought to install a factory in Brazil, the interests of national security took oneven more importance. Article 48 ordered the War Ministry to study carefully the advantages anddisadvantages that a foreign-owned factory could bring for the economic development of the country and the improvement of its national industrial output. The ministry would elaborate a study discussingthe following points:

a) Impact of the firms production on industries already present in Brazilb) Whether there existed a timeframe for nationalizing production and if there were none, whenone could be established.

Article f exempted gun shops operating in the countryside from registration granted that they weresignificantly far from population centers, at the discretion of the inspection and monitoring organsof the War Ministry and that they sold only Brazilian-made hunting shotguns (single- or double-barrel), .22 caliber bullets, and hunting cartridges (empty or partially loaded with lead shot).


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Permission to import controlled products, in turn, would be automatically denied or restrictedif similar products were produced domestically within Brazil. With this rule, laid down in

Article 112 of the decree, began the protectionist policy toward the Brazilian arms industry that continues to this day. Below, the text of the article:

Art. 112 The War Ministry, cognizant of the control function it carries out,will provide all protection to Brazilian industry necessary to increase

its production and improve its technical standards.

As such, all controlled products being manufactured or that come to be produced in theCountry, provided that they meet a level of production judged sufficient by the War Ministry,will be placed in Control Category n1 or 1-A, and their importation will be denied or restricted,either via annual quotas or minimum required market share for the national industry, or any other criteria of restriction.

Sole Paragraph 3 : Quotas and percentages will be fixed via War Ministry Announcement, whichwill take into consideration the needs of the domestic market, national production, and themaintenance of a minimum stockpile.

Article 117 further establishes that importation of firearms, ammunition and accessories forindustrial uses (such as whale hunting, the cement industry, and others) can be allowed providedthat no similar national product exists and the necessity of these products can be verified.

Importation of dismantled firearms and assemblies, parts, accessories, and replacement piecesthereof was also not permitted, although foreign-owned factories could import parts that couldnot be immediately manufactured in Brazil within the timeframe for nationalization ofproduction. This strict regulation of firms did not apply to individuals. People wishing to import or personally bring back from abroad permitted-use firearms and ammunition for personal use could doso, provided that they were good citizens and that their personal arsenal did not surpassthree firearms of differing calibers and 300 cartridges. Thus, it seems that if a good citizentook five trips abroad per year, bringing back the legal limit each time, at the end of the yearhe would have 15 firearms and 1500 cartridges.

Naturally (given the times), the liberty of War Ministry officials was total. Applications forexport would be decided quickly, and would require a separate shipping warrant only whenjudged necessary. Import licenses were valid for one year.

3Pargrafo nico , a heading used in Brazilian laws to indicate a paragraph with no sub-headings.


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The decree said little on the subject of exports. The main principle was that exportersshould obey the legal and statutory norms in force in the importing countries. It is truethat Article 133, paragraph 3, gives the War Ministry the option of hearing the NationalSecurity Council in the case of exportation of products considered to be war materiel.Nevertheless, the fact is that the decree gave birth to a culture that persists today in thearms control scenario in Brazil: protectionism for the domestic arms industry throughexcessive import restrictions on the one hand, and little no concern with what is sold toother countries on the other.

Firms wishing to export had to present, as proof of sale and authorization for import by the purchasing countries, one of the following documents:

a) A copy of the foreign import license or equivalent, according to the legislation of thatcountry, whether in the form of an operating license or permission to sell during a limitedperiod;b) A document issued by the relevant agency of the importing country stating thespecifications of the items to be imported;c) A letter of bank credit, issued in the importing country, relating to the sale for which

authorization had been requested.In the case of countries with free importation of controlled products, a simple declarationfrom a Brazilian diplomatic body in the importing country or from that country s diplomaticrepresentative in Brazil would suffice.

Finally, it is worth examining the text of Article 134:

Art. 134 It is the duty of the War Ministry to stimulate the exportation of products under its control.

Sole Paragraph: The exportation of controlled products, however, should be carried out in

such a way as not to jeopardize supply of the domestic market .

As such, the War Ministry may reach agreements with national organs related to the exportsector, to verify whether exportation of certain items is opportune and advantageous tothe country, from the economic point of view.

Now let us consider which firearms, ammunition and accessories were consideredpermitted-use and which were prohibited. Article 161 defined prohibited-use items as:

a) Firearms, ammunition, accessories and equipment equivalent or similar to (in technical,tactical and strategic terms) war materiel used by Brazilian or foreign armed forces;b) Firearms, ammunition, accessories and equipment that, though not part of the warmaterial used by Brazilian or foreign armed forces, nor similar to such materiel, possesscharacteristics that make them apt only for military or police use;


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c) Carbines (rifled shotguns), rifles and all similar rifled-bore firearms, with calibers greater than.44 (11.17 mm);d) Revolvers with calibers greater than .38 (9.65 mm);e) Semiautomatic pistols with calibers greater than 7.65 mm or with barrel length greater than 15cm;f) Parabellum-type semiautomatic pistols;g) Automatic pistols of any caliber;h) Single-shot pistols with calliber greater than .380 (9.65 mm);i) Compressed air guns; excluded from this class are spring-fired guns (that fire arrows, small leadpellets, or small plastic bullets) up to 6mm;j) Gas weapons of any type, provided that they can be used to deploy agressive chemical agents;excluded from this category are starting pistols or other weapons that fire cartridges containingonly gunpowder;l) Cartridges for use in prohibited-use firearms;m) Cartridges charged with aggressive chemical agents, whatever their physiological or tacticaleffects, provided that they be harmful to humans or animals, including cartridges capable ofprovoking anesthesia;n) Fireworks or other devices capable of provoking fires or explosions;o) Hidden or disguised firearms, understood as those with the appearance of inoffensive objects,but that hide a weapon, such as cane-pistols, pen-revolvers and so on;p) Devices or accessories that modify the conditions of use of firearms, such as silencers, so as tomuffle the sound of fired shots;q) Sights and accessories for prohibited-use firearms.

Article 162 defined permitted-use firearms, ammunition, accessories and equipment as:

a) Shotguns and all similar smoothbore firearms, of any model, type, caliber, or firing mechanism;b) Long-barrel rifled-bore firearms for pre-established civilian uses, such as carbines, rifles andsimilar weapons up of caliber equal to or less than .44; excluded from the permitted-use category are all firearms even those with caliber lesser than .44 (11.77mm) whose caliber is already established as a standard military armament, such as 7mm or 7.62mm (.30);c) Revolvers of caliber equal to or less than .38 (9.65 mm);d) Semiautomatic pistols of caliber equal to or less than 7.65 mm, with barrels less than 15 cmlong, and excluding all Parabellum-type pistols;e) Single-shot pistols of caliber equal to or less than .380 (9.65 mm);f) Spring powered shotguns or pistols (that fire arrows, small lead pellets, or small plastic bullets) ofcaliber equal to or less than 6mm;g) Starting pistols or other weapons that fire cartridges containing only gunpowder;

h) Empty, partially loaded or loaded shotgun cartridges, known as hunting cartridges, of any caliber and with lead shot of any diameter;i) Bullet cartridges for permitted-use rifled-bore firearms, except those which, though of permittedcaliber, expand or splinter upon firing (such as dumdum bullets), possess explosive or incendiary action upon impact, or otherwise possess characteristics that make them apt only for police ormilitary use;


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j) Lead shot for hunting, including birdshot;l) Sights and other permitted accessories for permitted-use firearms.

Article 187 prohibits production for civilian use of carbines (rifled shotguns) and all similarfirearms of caliber greater than.38.

Now let us discuss a privilege that military officials and sub-officials have always enjoyed:the simplified and unregulated purchase of firearms and ammunition. Military personneldid not need to register their firearms with the police, and Article 222 stated that thepurchase of permitted-use firearms and ammunition for personal use, from registeredcivilian factories, depended only on the authorization of their commanding officer ordirector. Paid reservists as well as retirees could purchase permitted-use firearms andammunition through the military payment offices to which they were linked, either via theRegional Military Commands or the Units closest to the places of residence of such military personnel .Of course, there were some limits. Each soldier could acquire one handgun, one huntingfirearm, and one target-shooting firearm every two years, as well as the following quantitiesof ammunition: 300 live handgun rounds, 500 live carbine rounds, 500 shotgun shells, 5kilos of gunpowder and lead shot for hunting.

Officers and non-commissioned officers (NCOs) of the Auxiliary Forces could also buy permitted-use firearms quite easily. They needed only the authorization of the director ofthe DPO (in the case of the now-defunct state of Guanabara) or the commander of theMilitary Region in which they worked.

So far, we have been discussing sales of firearms and ammunition produced by privatecompanies. In the case of the Army s own factories, authorization for the purchase ofpermitted-use firearms and ammunition required the presentation of one s military IDand the authorization of one s commanding officer. In the case of reservists and retirees,authorization was given by the head of the military organ where the person served, or by the commanders of the military unit closest to his or her residence.

Civilians wishing to buy firearms and ammunition, on the other hand, needed a declarationof good citizenship from the police before they could purchase and register firearms.Decree 55.640 dealt neither exhaustively nor directly with the question of regulating civilianarms sales, nor was it concerned with systematizing controls on firearms or their owners.On the contrary, this decree was more interested in guaranteeing the expansion anddevelopment of the national arms industry than regulating the domestic market with aneye toward guaranteeing the security of Brazilians. Registration of civilian firearms wasaddressed weakly and ambiguously in the single, short Article 228: In the case ofindividuals (civilians), sales via the Commercial Sections [of military factories] will bemade upon the presentation of authorization from the local police and registration in therelevant police office.


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Ministerial Ordinance N 1261 of October 17, 1980It was only in 1980 that the first Brazilian regulation dealing specifically with civilianacquisition and registration of firearms was promulgated. Although this ordinance didestablish objective, obligatory requirements for the registering of firearms, it did notcreate a centralized registry nor a system for information sharing between the localpolice (who register the weapons) and the federal authorities. In effect, it created aregistry mechanism that was compartmentalized and fragmented by design. Then again,it was merely an ordinance handed down by the War Ministry and not a law or decree.

The ordinance established that each citizen could own at most six permitted-use firearms(two handguns, two rifled-bore hunting firearms, and two smoothbore hunting firearms).

A maximum of three firearms could be bought in a single year, until the maximumpermitted number of guns was reached.

The sale of firearms (by civilians and military or police officials) could only be carriedout upon satisfying the following formalities:

1) The vending firm had to fill out a registration form at the time of purchase, uponpresentation by the purchaser of his or her personal identification.2) These registration forms, properly filled out, had to be delivered by the storeowner tothe Civil Police on a weekly basis.3)Having received the forms, the competent organ of the Public Security Secretariat ofthat state would issue a Firearm Registration and Certificate of Ownership.4)When the vendor received the Certificate, he could then pass it and the firearm to thepurchaser.

Firearms sales were only authorized for legally employed civilians over 21 years of

age, who satisfied the requirements mentioned above and presented a valid ID or proofof employment. In addition, the Civil Police had to confirm a clean police record (noarrests or cases of poor political social conduct ) before emitting the FirearmRegistration:

The ordinance also established the following monthly limits on civilian purchases ofammunition, accessories, and gunpowder:

1) Up to 50 cartridges for handguns owned by the purchaser;2) Up to 50 cartridges for rifled-bore hunting firearms;

3) Up to 200 shotgun cartridges;4) Up to 1000 primers for shotgun cartridges;5) Unlimited amounts of lead shot and up to 1 kilo of gunpowder for hunting.


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To purchase ammunition, the following items had to be presented to storeowners at the timeof purchase:

1) Civilians: ID or proof of employment and Firearm(s) Registration(s);2) Military personnel: ID and authorization from commanding officer or Firearm(s)Registration(s);3) Civilian Police: ID or Police ID, Firearm(s) Registration(s) or a License from the relevantpolice organ.

Naturally, the law established special procedures for sales of firearms to military personneland police, as well as professional shooters and hunters, who could purchase up to 14 firearms.

Law n.9.437 (SINARM Law)Law n.9.437 of February 20, 1997, well into the period of re-democratization, was a greatadvance for arms control in Brazil. In the first place, this was the first actual law to treat thesubject of civilian firearms, and secondly because it centralized control mechanisms and theregistry they created at the Ministry of Justice, rather than disseminated among local policethroughout the country. Previously, ownership of and licenses to carry firearms for civilianswere reserved for those few considered good citizens by police authorities. The military-eraDecree 55.649 had continued in force even after the end of military rule, with FirearmsRegistrations and licenses to carry still conceded by state police. Law n.9.437 was important,then, in standardizing the authorization process for registration and licenses to carry for civiliansand the implementation of minimum requirements for all citizens in the country. Control overimport, export, trade and manufacture of firearms and ammunition, as well as the definitionof permitted-use and prohibited-use items, was still defined by R105, the Controlled ProductsRegulation, which continued to be based on the 1965 decree through revisions in 1999 and2000.

Law n.9.437 created the National Firearms System (Sistema Nacional de Armas, SINARM), a

sector of the Federal Police charged with centralizing all information on civilian firearms. Applications for authorization to purchase a firearm would be made with state police, who

would consult SINARM and then make a decision.

Once authorization was granted, the applicant could then purchase a permitted-use firearmof the model and caliber specified. On the registration of the firearm, the following informationwould be included:a) Full name and parents name 4;d) ID numbers and issue dates;e) Names of manufacturer and seller of the firearm;f) Number and date of the receipt;

4In Brazil, most official documents includefiliao , i.e. the full names of ones parents.


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b) Work and home addresses;c) Profession;g) Type, make, model, and serial number of the weapon;h) Caliber and capacity (number of rounds);i) Firing mode;j) Number and length of barrels;k) Type of bore (smooth or rifled);

l) Number and direction of grooves (if rifled).

The registration would be valid anywhere in Brazil, but did not authorize the owner toleave home with his weapon. For that, he or she would need a license to carry, which, withthe passing of Law 9.437, would be granted only by the Federal Police.

That these two measures became duties of the Ministry of Justice, a civil institution, via theFederal Police, makes perfect sense if we consider that it was exactly in the 1990s thatBrazil s mid-sized and large cities experienced an explosion of armed violence. It was nolonger reasonable to allow citizens to arm themselves with no effective civilian control.

Law 9.437 was a first attempt, albeit timid, at responding to escalating crime.

At the same time, Law 9.437 was promulgating during the presidency of FernandoHenrique Cardoso, which severely restricted the powers of the Armed Forces in order tosolidify democracy in Brazil. Military personnel and police continued to enjoy the privilegesof purchasing firearms through their organizations and not having to submit to requirementsand red tape. Judges and magistrates enjoyed the same privileges. What is shocking isthat even with the advances brought by Law 9.437, collectors, hunters and professionalshooters continued to be treated as a separate class, that is, a group of civilians who, dueto their hobbies, deserved almost the same treatment as military personnel and police.

Arms registration for this group continued to be carried out by Army Command.

Control over licenses to carry permitted-use weapons for civilians became more strictunder Law 9.437, but still was inadequate for a country the size of Brazil. The FederalPolice became responsible for emitting licenses to carry for those already possessing aregistered firearm in their name, and who had requested permission to leave theirresidences with their firearms.

The Federal Police could grant licenses to carry valid for limited periods of time andterritory, provided that the applicant meet the following requirements:

a) Proof of good standing by presenting certification of a clean police record furnished by a federal, state, military, or electoral law enforcement agency; the applicant must alsoshow that he is not currently being investigated for violent crimes;


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b) Documentation of productive social behavior (e.g. proof of employment);c) Proof of an effective need for a firearm in function of ones professional activity, whosenature exposes the practitioner to risk, whether in the transportation of goods, valuables, anddocuments or for any other reasons;d) Proof of technical capacity to handle firearms, testified to by a shooting instructor certifiedby the Civil or Federal Police;e) Proof of psychological aptitude for handling firearms, testified to in an official report by apsychologist certified by the Civil or Federal Police;

f) Proof of payment of the stipulated fee for a license to carry.

As mentioned above, the principal arms and ammunition control functinos remained with the Army, but Law 9.437 did take a timid step in ordering SINARM to keep a record of the following

items:

a) Firearms produced, imported, and sold in the country;b) Sales between individuals, loss, theft, and other factors that could alter the data of registeredfirearms;c) Modifications that alter the characteristics or functioning of firearms; as;d) Already existing police records;

e) Seized firearms, including those involved in police investigations and trials.

Decree n.3.665The Controlled Products Inspection Regulation, R150, was revised in 1999 (Decree n.2.998)and again on November 20, 2000 (Decreto n.3665). Since there are few differences betweenthese two texts, we will analyze the 2000 decree, as it is still in effect today.

Unlike the original R105, the 2000 version defines permitted-use and restricted-use weaponsat the outset of its legal text. Permitted-use weapons are defined thus:

I. Repeating or semi-automatic handguns whose ammunition commonly has a force of up to

300 foot-pounds or 407 Joules upon leaving the barrel, and corresponding ammunition,such as: calibers .22 LR, .25 Auto, .32 Auto, .32 S&W, .38 SPL and.380 Auto;II. Repeating or semi-automatic rifled-bore long arms, whose ammunition commonly has aforce of up to 1,000 pounds or 1,355 Joules upon leaving the barrel, and correspondingammunition, such as: calibers .22 LR, .32-30, .38-40 and .44-40;III. Repeating or semi-automatic smoothbore firearms, caliber 12 or lower 5 with barrel lengthequal or greater to 24 inches or 610mm, as well as smoothbore arms of smaller caliber, withany barrel length, and corresponding permitted-use ammunition;IV. Weapons activated by compressed air or by spring-action, with caliber equal to or smallerthan 6mm and corresponding permitted-use ammunition;

5Shotgun caliber (or gauge) is an arcane measurement, indicating the number of lead spheres with a diameter equal to that of the barrel t

pound of lead. As such, the higher the caliber number thesmaller the width of the barrel. Here, a lower caliber means alarger barrel.


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V. Firearms that are to be used for sporting competitions, which utilize cartridges containingonly gunpowder;

VI. Industrial-use firearms or those that utilize anesthetic projectiles for veterinary use.

Restricted-use firearms are defined thus:

I. Firearms, ammunition, accessories and equipment equivalent or possessing similarcharacteristics, in technical, tactical and strategic terms, to war materiel used by the Brazilian

Armed Forces;II. Firearms, ammunition, accessories and equipment that, though not equivalent or similar towar material used by the Brazilian Armed Forces, possess characteristics that make them aptonly for military or police use;III. Handguns, whose ammunition normally has a force of greater than 300 foot-pounds or407 Joules upon leaving the barrel, and corresponding ammunition, such as: calibers .357Magnum, 9 Luger, .38 Super Auto, .40 S&W, .44 SPL, .44 Magnum, .45 Colt and .45 Auto;IV. Rifled-bore long arms, whose ammunition normally has a force of greater than 1,000 foot-pounds or 1,355 Joules upon leaving the barrel, such as: calibers .22-250, .223 Remington,.243 Winchester, .270 Winchester, 7 Mauser, .30-60, .308 Winchester, 7,62x39, .357 Magnum,.375 Winchester and .44 Magnum;

V. Automatic firearms of any caliber; VI. Smoothbore firearms of caliber 12 or lower with barrel lengths of less than 24 inches or610mm;

VII. Smoothbore firearms of caliber greater than 12 and corresponding ammunition; VIII. Firearms activated by compressed air or spring-action, of a caliber higher than 6mm,

which fire projectiles of any sort;IX. Hidden or disguised firearms, understood as those with the appearance of inoffensiveobjects, but that hide a weapon, such as cane-pistols, pen-revolvers and so on;

X. Compressed air-activated simulacra of Fz 7.62mm, M964, FAL.

The requirements for selling and manufacturing firearms and ammunition are relatively simple.

To receive authorization to sell, the applying firm need only present a declaration of goodstanding, a copy of its license to operate at a fixed address (usually furnished by municipalgovernments) and proof that it is registered with the National Registry of Legal Entities (CadastroNacional de Pessoas Jurdicas, CNPJ). Once authorization has been granted, the firm receivesa Certificate of Registration (CR), emitted by the commander of the appropriate Military Region,which lists the following items:

a) Nomenclature of the products to be sold;b) Authorized activities listed in a clear, precise and concise manner;c) Other information that the relevant military authority judges necessary.In the case of arms manufacturers, the procedure is a slightly more involved, but still similar tothat fixed by the 1965 decree. A legal entity seeking to produce arms must, aside from thetypical bureaucratic requirements (certify ones registration with the tax authorities, etc.), agreeto the following:a) To obey R105, as well as submit to inspection and monitoring by the Army;


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b) To not sell or transfer ownership of its dangerous area 6 , unless with the previousauthorization of the Army;c) To not manufacture any new product without the authorization of the Army;d) To not modify a product whose formula or design have already been authorized;e) To not carry out any alteration in the construction of the dangerous area without theauthorization of the Army; and,f) To communicate to the DFPC, via the local Military Region Command, any alteration in theconstruction of the dangerous area.

Law n.10.826 The Disarmament StatuteDuring the 1990s, Brazilian congress saw any number of arms control bills, but the mostsignificant was that defended by Senator Renan Calheiros (Projeto de Lei PL 292), initially presented in 1997, which evolved into the new arms control law, approved at the end of 2003and known as the Disarmament Statute.

The Statute (Law n.10.826) was definitively approved on December 9, 2003, after months ofan intense and uncommon public debate on the importance of creating a more rigorous andcentralized arms control system. The strongest argument against the bill, defended by nearly every association or group of hunters, target shooters, collectors, and gun lovers, was that

stricter controls on legally purchased arms would not reduce the tragically high indices ofarmed violence that shook the country.

Nevertheless, in numerous public opinion polls, the Brazilian populace indicated that it was infavor of more rigorous control over firearm ownership and right to carry, as well as over sales.In Rio de Janeiro state, one of the most violent states in Brazil, a poll by the popular TV newsprogram RJTV found that 82% of the population ws in favor of disarmament. An InstitutoSensus poll found that 76% of the Brazilian population was in favor of stricter controls on rightto carry.

After six months of debate and votes in both houses of congress, the Statute was approved on

December 9 and signed into law by President Lula on December 22, going partially intoforce the next day. We say partially because of the Statutes 37 articles, only nine could beapplied immediately, while the others had to await regulation via decree. These nine articlesdealt with crimes and penalties.

The Statute has been criticized by some Brazilian scholars of criminal law, who argue that ithas made punishment for gun law infractions too severe. Indeed, the Statute not only mandatedharsher penalties for infractions, it also defined a whole spectrum of gun-related crimes. Inthe previous legislation, Law 9.437, lumped all gun-related infractions into a single category.

Article 10 of that law was the only one to deal with crimes, defined these infractions thus:

6 rea perigosa , i.e. the physical space where production of controlled products takes place.


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Art. 10 : To possess, hold, carry, manufacture, acquire, sell, rent, put up for sale orfurnish, receive, store, transport, give, even if free of charge, lend,

remit, use, guard or hide apermitted-use firearm, without authorizationand in contravention of laws or ordinances.

Penalty one to two years imprisonment and fine. 1 The same penalties apply to those who:

I Fail to take the necessary precautions to prevent an individual under theage of eighteen (18) years old, or a mentally incapacitated individual, from

gaining possession of a firearm that is in ones possession or belongs to himor her, except for the practice of sport when the minor is accompanied by

a parent or legal guardian or an instructor;II Utilize a toy gun or other simulacrum of a firearm to intimidate

another person, in order to commit crimes;III Fire a gun or set off ammunition in or near an inhabited place, in a publicstreet or in its direction, when the act does not constitute a more serious crime.

2 The penalty for these crimes, if the firearm involved is prohibited- orrestricted-use, is two to four years confinement and a fine, with no reduction

in potential penalties for the crimes of smuggling or misappropriation. 3 The same penalties of the paragraph above apply to those who:

I Erase or alter the make, serial number, or any other identification on the firearm or artifact;II Modify the characteristics of a firearm in such a way as to make

it equivalent to a prohibited- or restricted-use firearm;III Possess, hold, manufacture, or use an explosive and/or

incendiary device without authorization;IV Have been previously convicted of a violent crime, a

property crime, or a drug-related offense. 4 The penalty is increased by half if the crime is committed by a public servant.

The innovation of the Statute was to separate out the list of crimes described in the caput to

Article 10 above, creating a series of new criminal categories from the existing offenses:Illegal possession of a permitted-use firearm

Art. 12 . To possess or hold a permitted-use firearm, ammunition oraccessory, in contravention of legal or regulatory norms, inside ones

residence or its attached areas, or at ones place of work, provided that heor she is the owner or legal representative of the establishment or company:

Penalty imprisonment, from one (1) to three (3) years, plus a fine.Careless Handling or Storage of a Firearm

Art. 13. Failure to take the necessary precautions to preventan individual under the age of eighteen (18) years old, or

a mentally incapacitated individual, from getting hold


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of a firearm in ones possession or belonging to him or her:Penalty imprisonment, from one (1) to two (2) years, plus a fine.Sole Paragraph . The owners or persons responsible for security c

ompanies or companies engaged in the transportation of valuables whofail to make a police record and inform the Federal Police about the loss,theft, robbery or other forms of losing track of a firearm, ammunition oraccessory under his care, within the first twenty-four (24) hours following

the occurrence, shall be subject to the same penalty.

Illegally carrying of firearms of permitted usage

Art. 14. Carrying, holding, acquiring, furnishing, receiving, storing,transporting, furnishing even if free of charge, lending, remitting,

employing, keeping in custody or concealing firearms, accessories or ammunition of permitted usage without

authorization and in violation of legal or regulatory norms:Penalty confinement from two (2) to four (4) years, plus a fine.

Sole paragraph. The crime described in this article is not subject to bail,unless the firearm is registered in the name of the perpetrator.

Illegally possessing or carrying firearms of restricted use

Art. 16. Possessing, holding, acquiring, furnishing, receiving, storing,transporting, furnishing even if free of charge , lending, remitting,

employing, keeping in custody or concealing firearms, accessories or ammunitionof restricted or prohibited use, without authorization

and in violation of the legal or regulatory norms:Penalty confinement form three (3) to six (6) years, and fine.

Sole paragraph. The same penalties will be imposed on anyone who:I removes or alters the marking, numbering

or any identification mark of a firearm or artefact;II modifies the characteristics of a firearm in such a way as to make it

equivalent to a firearm of prohibited or restricted usage, or for the purposeof hampering or, by any means, inducing error

on the part of police authorities, experts, or judges;III possesses, holds, manufactures or uses explosive or incendiary artefacts

without authorization or in violation of the legal or regulatory norms;IV carries, possesses, acquires, transports or furnishes a firearm whose

numbering, make or any other identifying markingsare scratched, removed or adulterated;

V sells, delivers or furnishes, even if free of charge, firearms,accessories, ammunitions or explosives to children or adolescents; and

VI produces, reloads or recycles, without legal authorization,or adulterates, by any means, ammunition or explosives.


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Illegal Trading of Firearms

Art. 17. Acquiring, renting, receiving, transporting, carrying, concealing,storing, disassembling, assembling, reassembling, adulterating, displaying

for sale or, by any other means, utilizing for their own benefit or for thebenefit of others, when exercising either a commercial or industrial activity,

firearms, accessories and ammunition without authorization, orin violation of the legal or regulatory norms:

Penalty confinement, from four (4) to eight (8) years, plus fine.Sole paragraph . For the purposes of this article, any form of servicesrendered, manufacture, or irregular or clandestine buying or selling,

including that performed at home, is consideredequivalent to commercial or industrial activity.

The Statute also defined two new crimes: inappropriate shootingof firearms and international trafficking of firearms.

Shooting of firearms

Art. 15. Shooting firearms or setting off ammunition in inhabitedplaces or adjacent areas, in public streets or in their direction, provided

that the purpose of such conduct is not to perpetrate another crime:Penalty confinement, from two (2) to four (4) years, plus a fine.

Sole paragraph . The crime provided for in this article is not subject to bail.This article was quite controversial, in part because of its name.

It makes it a crime to fire a gun even, and precisely, when the act is notdone in order to perpetrate a crime. Many scholars of

criminal law have criticized this article for being too strict.

International Trafficking of Firearms

Art. 18. Importing, exporting, facilitating the entrance or exit,on any account, of firearms, accessories or ammunition without the

authorization of the competent authority:Penalty confinement, from four (4) to eight (8) years, plus fine.

The crime of international trafficking of firearms is probably the most important innovation inthis part of the Disarmament Statute. First because in the Mercosur countries and associatecountries (Bolvia, Chile e Peru) there has never been any legal mention of arms trafficking asa specific crime. Smuggling arms would be considered a criminal activity in the same category as trafficking in drugs or wild animals, for example. The legal focus was always on the formationof a criminal organization by two or more people; the fact that such an organization traffickedfirearms was always of secondary importance. As such, the creation of this penal category marks a significant evolution in the law.


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The other interesting aspect of this crime was the debate over it during the voting process incongress. The Senate was particularly interested in including two types of crime in the Statute,that of international trafficking and that of illegal brokering. Such a result would have beenideal, not only because Brazil has agreed to the UN protocol for the prevention of illicit armstrafficking, but because it would eliminate any chance of illegal brokering activity. Pro-disarmament think tanks like Viva Rio and Instituto Sou da Paz argued insistently for the inclusionof the crime of illegal brokering, but in the end, the senators felt that the crime of illegal armstrafficking, as fixed by the Statute, already includes brokering activities.

The remaining articles of the Statute would take another six months to come into force, whenthe Ministries of Justice and Defense issued the Statutes regulatory decree, n.5.124, of whichwe will speak later. The Statute brought great advances not only in terms of controls overindividuals who wish to own a firearm, but also (and principally) over the monitoring of largevolumes of firearms in circulation throughout the country.

SINARM, the National Firearms System, created Law n.9.437, had its duties expanded by theStatute. SINARM is, in essence, a database maintained by the Federal Police. Previously, itincluded data on firearms produced, imported, and sold within Brazil; firearm registrations(in the case of civilians); modifications that could alter the functioning of a firearms or itscharacteristics; firearms seized by the police or the Judiciary; and police records already inexistence. With the advent of the Statute SINARM was given the following additionalresponsibilities:

a) Register all authorizations to carry firearms and renovations of same issued by the FederalPolice;b) Register all occurrences resulting from the closure of companies that render private security and armored car services that could alter the validity of registry data;c) Register all firearms dealers operating in Brazil, as well as grant authorization for theperformance of this activity;

d) Register all authorized manufacturers, wholesalers, retailers, exporters and importers offirearms, accessories and ammunitions;e) Register the identification on the barrel of the firearm, the characteristics of the bunter marksand striations of a bullet fired from it, in accordance with the markings and testing obligatorily carried out by the manufacturer;f) Inform the Public Security Secretariats of the states and of the Federal District of all registrationsand authorizations to carry firearms in the corresponding territories, and keep the file updatedfor consultation.

It is not necessary to emphasize the profound advance that the Statute represents for Brazilianarms control legislation. The key point here is that the Statute attempts to centralize controls

over all aspects of civilian activities related to firearms and ammunition within the Ministry ofJustice. While it is true that Article 3 maintains the registry of restricted-use firearms under theresponsibility of Army Command, as we will see below, this control may also be carried out


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the Federal Police (which is part of the Ministry of Justice) through the exchange of data betweenSINARM and the militarys firearms database, SIGMA (Military Arms Control ManagementSystem). Similarly, although Article 2 declares that SINARMs functions will not include firearmsbelonging to the Armed Forces and Auxiliaries as well as those firearms in their registries,what could have been an unpardonable lacuna in the legislation is covered by the samemeasure permitting SINARM access to the Army s database. Thus, as long as the ArmedForces and Auxiliaries, along with all other government forces (i.e. police) have their dataregistered with Army Command, we can conclude that the information sharing between SINARMand SIGMA will allow for ample research and investigation by the Federal Police on all thearms circulating in the country.

These measure, nonetheless, were not widely understood as innovative by the lay public. Tothe average Brazilian, the main change brought by the Statute was the difficulty in registering(i.e. obtaining permission to purchase) a firearm and the elimination of licenses to carry. TheStatute in effect obliged those who would purchase a firearm to meet the same requirementsthat previously applied to applicants for licenses to carry:

a) Declaration of the effective need for a firearm;

b) Proof of good standing, by presenting certification of a clean police record furnished by afederal, state, military, or electoral law enforcement agency, and a clearance certificate statingthat the interested party is not participating in any police investigation or criminal proceeding;c) Proof of legal employment;;d) Proof of fixed residence;e) Proof of technical capacity to handle a firearm;f) Proof of psychological aptitude to handle and use a firearm.

All these items must be renewed every three years, a requirement that did not exist in theprevious law.

Licenses to carry firearms became almost entirely prohibited in Brazil. Article 6 of the Statutelists the groups who are permitted to carry with the exception of target shooters (whosurprisingly won the right to carry firearms), they are all related to security. Nevertheless,

Article 10 of the statute provides an exception to the rule: those who can prove that they are atgrave risk to their physical wellbeing or practice a risky profession, and who meet all therequirements for registering a firearm, can apply for a license to carry. This quite controversialarticle is little known to lay people.

The groups who are authorized to carry firearms are:

a) The Armed Forces;b) The Federal Police, the Federal Highway Police and the Federal Railway Police;c) The Civil Police;d) The Military Police and the Military Fire Brigade;


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e) Municipal Guards in state capital and municipalities with more than 500,000 inhabitants;f) Municipal Guards in cities with 50,000 - 500,000 inhabitants, when in service;g) Operational agents of the Brazilian Intelligence Agency (Agncia Brasileira de Inteligncia,

ABI) and the agents of the Department of Security of the President s Institutional Security Office;h) Members of the Senate and Chamber of Deputies guard;i) Members of active duty staff and guards of prisons, prisoner escorts, and port guards;j) Private security companies and companies that transport valuables;k) Members of legally organized sport shooting clubs or associations.

Other important innovations brought by the Statue were:

a) All ammunition produced domestically must leave their factories boxes marked with barcodes, in order to enable the identification of the manufacturer and purchaser;b) All public security organs must purchase ammunition that has been marked with the lotnumber and the identity of the purchasing organ on the butt end of each round;c) All firearms manufactured after December 23, 2004 must contain an intrinsic safety andidentification device engraved on the body of the firearm;d) All seized firearms must be destroyed within 48 hours after being liberated from all judicialproceedings by the responsible judge;e) No firearms may be sold to individuals under the age of 25;f) The installment of a government funded voluntary buyback campaign and an amnesty forunregistered or altered firearms.

This last item merits brief comment. The previous law called for an amnesty campaign forthose in possession of unregistered arms; for lack of publicity, however, the campaign wasnot very successful. The Statute has been much more successful in this respect, probably because it has combined the amnesty with a small reimbursement for those handing overtheir weapons.

The most important political and historical innovation of the Statute, however, is the realizationof a referendum in which voters will decide whether the sale of firearms and ammunitionshould or should not be definitively prohibited. The referendum, to be held in October2005, will be the first in Brazil. Not only because of that fact, but also because it will decidesuch a controversial and vital an issue for Brazil today, the 2005 referendum will certainly mobilize voters. Its inclusion in the Statute is itself a great advance toward a more soliddemocratic tradition in Brazil.

Decree n.5.124This is the degree that regulates the Statute, and it deserves a brief commentary. First, it isworth noting that the composition of this decree involved a battle equally if not more arduousthan that of the Statute itself. The arms industry and its defenders, collectors, target shooters,and hunters went up against NGOs in an ideological battle over the minutiae of the Statute sregulation, which would ultimately determine its power and applicability.


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The most important innovation in the decree was the call to interconnect the SINARMand SIGMA databases within 6 months. This information sharing was already mandated in Law n.9.437 (via its regulamentary decree, n.2.222/97), but for lack ofpolitical will, the relevant ministries (Justice and Defense) never operationalized theplan.

The most controversial aspect of the decree, beyond a doubt, is Article 57:

Art. 57. The importation of firearms, accessories, and ammunition by

post or similar means is prohibited.

This article represents the continuation of the principle of absolute protection of theBrazilian arms industry.

Mercosur and Associate Countries As a result of the Statute, Brazil now has the most advanced arms control legislation in

the region. Argentina, which once was considered the country with the most advancedlaw, now needs to copy Brazil s norms on marking of ammunition and perhaps evencall for a similar referendum. Argentine law is extremely rigorous with those wishingto purchase firearms; they must meet a series of requirements and deal with seemingly endless bureaucratic red tape. The same holds for merchants, who must leap countlessbureaucratic hurdles. Nonetheless, control over illegal circulation of firearms andammunition is still quite lenient and Argentina would do well to mimic the new controlregime installed in Brazil.

Bolivia is, without a doubt, the country with the weakest arms control legislation. First,

there is no law whatsoever, only a ministerial resolution that has been adapted andamended over the last 20 years. Worse, this resolution is overly strict on imports, andtoo lenient on civilian ownership and right to carry. Peru, recently admitted to Mercosur(December 2003), also has quite lenient legislation, but at least it places limits onmerchants. Still, it is remiss in reducing to a single institution the right to own a gunand the right to carry it. That is, anyone authorized to purchase a firearm in Peru isautomatically allowed to carry it.

Paraguay, which was for years the prime example of a country with poor arms control,promulgated in June 2002 a law that attempts to improve on the situation. Law 1.910imposed more requirements on those wishing to purchase firearms and eliminatedthe ability of tourists to buy firearms (shockingly, this was an explicit article of theprevious law). Still, the new law has not yet been regulated, and as such the advancehas yet to be consolidated.


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Finally, as proof that the sub-continent produces not only backwardness, but also real advancesin the sense of a more strict and effective control over the firearms that circulate in the region,Chile and Uruguay recently experienced changes or attempts at changes to their laws. Chile,which though its legislation was almost too strict in the case of merchants, had no effectivecontrol over civilians, recently required civilians to take a psychological test every five yearsbefore receiving and renew a firearm registration. Uruguay, whose legislation is reasonably strict, but which suffers from control mechanisms spread between the army and the police, isnow considering a bill openly inspired by the Brazilian Disarmament Statute. Should this bill,sponsored by Deputy Daisy Tourne, be voted into law, the sub-region would be taking animportant and historic step forward toward the harmonization of laws for a more effectivecontrol over illicit arms and ammunition traffic.


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Carolina Iootty Dias

Lawyer

smal arms control legislation in brazil from vargas to lula by carolina iootty

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