STF blinds Lula’s decree on weapons and prevents evaluation of complaints

The Federal Supreme Court (STF) decided, on Friday (10), that President Lula’s (PT) decree of January 1, which brought several restrictions related to access to weapons and ammunition in the country, should remain in force. The decision, which took place in a virtual trial, prevents judges across the country from assessing allegations of illegalities in the decree, suspends all ongoing processes that contested the new rules imposed by Lula and annuls the effectiveness of judicial decisions that had already been taken in regarding the decree.

In all, nine ministers followed in full the vote of the rapporteur, Gilmar Mendes, in the sense of shielding Lula’s decree. Kassio Nunes Marques accompanied the rapporteur with reservations, while André Mendonça was the only one to differ from Gilmar Mendes’ understanding.

There are several questions in court regarding the constitutionality of the decree that, among other measures, suspends the granting of new registration certificates for the category of Hunters, Shooters and Collectors (CACs); restricts the amount of weapons and ammunition that can be registered per person; and suspends the registration of new clubs and shooting schools. In addition, the norm prohibits the Army from authorizing new acquisitions of weapons and orders the interruption of acquisition processes that were in progress. As shown by People’s Gazettethe government’s determination has led to a variety of consequences, ranging from making sport shooting unfeasible in the country to economic damage, such as layoffs and the closure of companies in the sector.

On February 15, the day before Gilmar Mendes granted an injunction suspending processes that questioned Lula’s decree, a judge from Umuarama (PR) had authorized a CAC from Paraná, author of the action, to be exempted from having to re-register his firearms in the Federal Police (PF) system. The determination that weapons already properly registered in the Army system must be re-registered, this time in the PF – in some cases it being necessary to take the weapons to the police stations – came from an ordinance of the federal government edited on February 1st based on Lula’s decree published in January.

At the same time, in the higher courts of the Judiciary, several requests for suspension of the decree have already been filed. In all, in the Superior Court of Justice (STJ) and in the STF there are six injunctions, in addition to a direct action of unconstitutionality against the norm – all, from now on, will be suspended.

“Ideology has supplanted legal technique”, says specialist in public security

Part of the ministers of the Supreme Court have spoken out personally, especially since last year, against the easing of access to firearms, which was a hallmark of the government of former President Jair Bolsonaro (PL). The rapporteur himself, Gilmar Mendes, said on Twitter in November last year that the “growing culture of hate in the country” is “fostered by baseless gun policies”. In June 2020, the minister had already suggestedwithout presenting data, a relationship between the greater number of legal weapons in the hands of the population and the increase in violence and a supposed increase in the number of homicides.

On the contrary: since 2018, a period in which there has been a significant increase in access to legal weapons in Brazil, homicides have dropped significantly. The number of homicides verified in 2021 (47.5 thousand), for example, was the lowest in ten years. In 2017, the height of violence in the country, 64,000 violent deaths had been recorded. Although there are no studies that make a direct correlation between the pro-gun policy and the decrease in violent deaths, the numbers denote that the flexibility of access to weapons did not contribute to the increase in homicides.

Fabrício Rebelo, a researcher in public security and founder of the Center for Research in Law and Security (Cepedes), assesses that STF ministers have dealt with the issue of firearms from a primarily ideological perspective, “heavily contaminated by the fallacious narrative of disarmament entities, and not with a strictly technical and, above all, constitutional approach”.

“The decree has manifest illegalities and unconstitutionalities, even flagrant, clearly violating the State’s constitutional obligation to promote sport and subverting what the Disarmament Statute itself says, especially regarding the requirements for buying a weapon and the control bodies, with the absurd transfer of a legal competence from the Army to the Federal Police”, points out Rebelo.

“This, as expected, generated a series of judicial challenges, and what the Supreme Court has now done is to say that only it can decide on this issue, and that all challenges must be suspended. In practice, it is the validation of the illegalities and unconstitutionalities contained in the decree”, he emphasizes.

Another point questioned by the researcher is that the Court has not yet entered into the merits of the questions against the decree, and even so, Gilmar Mendes anticipated his understanding that the norm is regular. “Basically, it is yet another example of how, in this field, ideology has been supplanting legal technique”, he laments.

Gilmar Mendes evokes January 8 attacks and criticizes Bolsonaro’s decrees on weapons

The minister-rapporteur began his vote by mentioning the attacks on the buildings of the Three Powers and citing that the acts were “openly sponsored by arms groups”. In the analysis of the decree, the minister says that he does not consider any unconstitutionality and that the rule “is in line with the latest pronouncements of this Federal Supreme Court on the substantive matter”.

Next, the magistrate criticizes Bolsonaro’s policy of greater flexibility in access to weapons and ammunition. “In short, there was a clear unconstitutional action in the sense of facilitating access to weapons and ammunition in the country, especially benefiting the category of CACs”.

In the vote, Mendes also points out that the decree is temporary, since its effects would take effect until the working group that is currently in operation to create new regulations for the Disarmament Statute ends its activities. Finally, the minister reinforces the favorable manifestation of the content of Lula’s decree and argues that any disregard for this norm “would further aggravate the unconstitutional situation of effective lack of control over the circulation of firearms in Brazil.”

Nunes Marques accompanies the rapporteur, but contradicts Gilmar Mendes’ view on weapons

Despite supporting the rapporteur in the sense that the government’s decree would be constitutional, Minister Kassio Nunes Marques made a series of reservations to the view expressed by Gilmar Mendes in his vote regarding policies to make access to legal weapons more flexible.

Nunes Marques emphasized several times throughout the vote that it is rash to relate the increase in legal weapons in the hands of the population to the increase in violence, citing surveys by the Executive itself that show that, while decrees to make weapons more flexible were being implemented in the country, homicides began a downward trend.

“If it is not possible to state with certainty that the greater availability of weapons has reduced the occurrence of homicides, it is possible to say that this exponential increase in the total number of weapons per inhabitant has not generated an increase in violence or murders. Now, if the data referring to the acquisition of weapons grew by 349.2%, there was, on the other hand, a reduction of more than 30% in the number of homicides. This, in my opinion, removes the alleged imminent risk”, says the minister.

Nunes Marques also highlights the importance of the Judiciary respecting the referendum held in 2005, during Lula’s first term as President of the Republic, which consulted the population on a possible ban on the trade of arms and ammunition in Brazil. At the time, the majority of votes (64% of voters, that is, 59 million Brazilians) were against such a ban.

“This was one of the most expressive votes in all of Brazilian democracy (…). Therefore, I believe that if, in 2005, almost 65% of Brazilian citizens voted to maintain the possibility of acquiring firearms, this will must be observed”.

For André Mendonça, who disagreed with the other ministers, the decision affronts the competences of the STF

André Mendonça was the only minister to vote against the declaration of constitutionality of the Lula government’s decree on the grounds that there is jurisprudence in the Supreme Court for actions of this type to be preceded by the existence of a “relevant judicial dispute”. According to the Minister, the analysis should only take place if there was “interpretative divergence between the bodies of the Judiciary Power regarding the constitutionality of a certain federal normative act”.

As there are few lawsuits in progress, and no decision pointed to the unconstitutionality of the decree in question, the STF would not be able to analyze the request. “That is to say: in my opinion, admitting the ADC (…) would undeniably transform the referred action into an instrument of prior and advisory control of the constitutionality of the laws, in affront to the constitutionally attributed powers to the Federal Supreme Court” , declared Mendonca.