Gilmar associates arms groups with 8/1 and defends restrictions on CACs

Minister Gilmar Mendes directly linked the actions of arms groups to the attacks on January 8, 2023, in a published vote, in the trial of Declaratory Action of Constitutionality (ADC) 85. As rapporteur of the ADC, he defended the legality of the decrees issued by the federal government that reestablish control over firearms in Brazil and impose stricter limits on the so-called CACs — hunters, shooters and collectors.

Gilmar Mendes voted to recognize the constitutionality of Decrees 11,366/2023 and 11,615/2023, which regulate the Disarmament Statute (Law 10,826/2003). For him, the normative acts are legitimate and compatible with the constitutional principles of protection of life and public safety.

“The sequence of events that took place in the period between the end of the general elections and the infamous attack on January 8, 2023 was openly sponsored by arms groups,” the minister stated in his vote.

In his vote, Gilmar harshly criticized the previous government's weapons policy, pointing out that, between 2019 and 2022, there was an “effective weakening of the weapons control policy in Brazil”. During this period, a series of decrees significantly expanded access to weapons and ammunition through CACs, without due monitoring by the State.

According to data cited by the minister, the number of weapons registered by CACs tripled in just over three years, jumping to more than one million. Inspection, however, fell short: only 2.3% of CAC collections were inspected in 2020, according to a survey by the Igarapé Institute.

For the minister, part of this expansion was used as “procedural fraud” to circumvent constitutional oversight and control of weapons by the courts.

Lula government requests precautionary measure for gun control

The action, filed by President Luiz Inácio Lula da Silva (PT) through the Attorney General's Office (AGU), asks the STF for a precautionary measure to guarantee the constitutionality of the decrees - 11,366, of a transitory nature, and 11,615, of definitive regulation - which were presented to overturn the initiatives of the Bolsonaro government and restrict access to firearms.

The Attorney General's Office (PGR), in its opinion, stated that the decree is "formally constitutional, as it is based on the authority of the President of the Republic to issue decrees and regulations for the faithful execution of the law (CF, art. 84, IV)", and that it does not violate the acquired right or the perfect legal act as it is a transitional norm.

In defending the decrees, Minister Gilmar Mendes highlighted several measures provided for in the new regulations, such as:

• Centralization of weapons registration in the National Weapons System (Sinarm), of the Federal Police;
• Reduction of weapons and ammunition limits by CACs;
• Reinforcement of inspections and requirement of proof of “effective need” for purchasing weapons;
• Limitation of the operation of shooting clubs and requirement of periodic psychological evaluation;
• Random selection of psychologists and instructors for aptitude tests.

For Gilmar Mendes, these measures “densify first-order constitutional norms and values, such as the rights to life and public safety”.

TCU endorses gun regulation

The vote also cited an audit by the Federal Court of Auditors (TCU), which positively assessed the new decrees and recognized that the measures “addressed several weaknesses” in the previous rules.

With his vote, Gilmar Mendes consolidated the understanding that the Executive has the power to regulate weapons policy, as long as it respects constitutional parameters.

The trial of the action will take place in a virtual plenary session and will continue until June 24. So far, only Minister Alexandre de Moraes has agreed with the rapporteur's vote.