Canadians' Right to Bear Arms

EDITOR'S NOTE: Below this article by Dr. John Robson we are pleased to include part of the ensuing debate that occurred partly online with Professor R. Blake Brown and conclude with a comment from Canada's foremost firearms rights expert, Professor Gary Mauser.

 

 Armed Canadians — A Brief History

JOHN ROBSON reveals that Canadians have just as much a tradition of the right to bear arms as any other country

 

TO SUGGEST THAT Canadians have a long and glorious tradition of liberty is to invite ridicule. Surely you have mistaken us for someone else, you risk being told. Especially if you add that our long-standing habit of vigilant restraint on excessive government includes a proud right to bear arms, you invite vituperation or perhaps confinement to an institution for the treatment of the mentally unsound. Yet both these statements are sober fact.

It is necessary in this context to specify that Canada is not a nation that came suddenly into existence in 1982 or 1968, a magnificent enterprise by projectors who by wiping the historical slate clean could at last devise a post-modern, multicultural experiment to fascinate and dazzle a world keen to strike off its own shackles and emerge into a glorious future. Indeed it is necessary to specify that Canada did not come suddenly into existence in 1867 when our Founders carried out a creative project to preserve their heritage through the novel expedient of a federal parliamentary system. Our history goes back a lot further.

The preamble to the Constitution Act 1867, the British North America Act though that name has since been wiped from the slate, famously declares the inhabitants of what had been the provinces of Canada, Nova Scotia and New Brunswick to be receiving “a Constitution similar in Principle to that of the United Kingdom.” And that was a very old constitution built upon Magna Carta and the guarantee of individual liberties against the state.

That perambulatory claim is superficially odd, even deranged, since the Dominion of Canada had a written federal constitution and Britain had neither. But the men who wrote it, on both sides of the Atlantic, must have had something in mind and if we do not know what it was we are in a singularly poor position to pass  judgment on it. So consider what the British constitution was at that time.

 

UNWRITTEN, YES. BUT not unknown. It consisted of the common law, the traditional privileges of parliament, and a series of generally binding conventions that between them kept the state small, perhaps 10% of GDP in the heyday of Victorian parliamentary self-government. It secured the rights of citizens to free speech, to property, to security of the person and, perhaps surprisingly, to the right to bear arms. The British government, except revealingly under the would-be absolutist Stuarts, had never tried to deprive inhabitants of weapons. Quite the contrary, it had repeatedly legislated that they must possess and know how to use them, for instance under Henry VIII imposing stiff fines on any family that did not provide a son who attained the ripe age of seven with a bow and arrows and ensure that he know how to use them.

If you cast your mind back to 1895 and imagine Sherlock Holmes and Dr. John H. Watson embarking through the swirling fog on some peculiar adventure, you may recall that Watson very probably pocketed his trusty revolver as they exited Baker Street. And nobody was surprised, from Scotland Yard to Conan Doyle’s audience. Nobody thought Watson was likely to shoot himself, Holmes or Mrs. Hudson. If he used his revolver Inspector Lestrade did not swoop to jail him for lacking a suitable permit. Indeed that very year the real British Parliament indignantly rejected a bill to control pistols as “grandmotherly, unnecessary and futile.” And with all due respect to granny, who might well have been packing heat herself in Victorian England, it clearly was both unnecessary and futile. London, the greatest city in the world, had virtually no gun crime despite having virtually no gun control. And since the British government began restricting arms as it came to distrust its citizens, beginning with a Red Scare after the First World War, London has become less safe and far more prone to gun crimes. This was an experience duplicated around the world over many years with amazing consistency when gun ownership is restricted.

Those who forged the Canadian Constitution in the 1860s had precisely that British form of constitutional, strictly limited government in mind. The various powers granted to our federal and provincial governments were not bestowed in the expectation that they would make aggressive use of them. Rather, the division of powers was intended to keep most of what were then the main activities of government at the local level, where indeed they would have remained without Ottawa’s fairly recent, post-Second World War use of its fiscal power to intrude upon health, education and welfare. And if you actually read our founding debates, which have been properly in print only since 1999 in stark contrast to the American devotion to the Federalist Papers that Sir John A. carried with him to Quebec City and Charlottetown, you see that everyone hails liberty. Specifically British liberty.

Proponents of Confederation say join and keep your British liberty. Opponents say stay out and keep your British liberty. But no one disputes that, in D’Arcy McGee’s words, “There is not on the face of the earth a freer people than the inhabitants of these colonies.” Nor that it is not just a proud and noble thing to be, but a defining feature of the people who were being asked to join the new Dominion.

They also understood that this liberty was hard-won including by struggles against would-be tyrants within the British Isles. The dominant view at the time was the right to bear arms was the essential safeguard of freedom. The famous legal commentator William Blackstone, an indispensable authority for anyone presuming to call themselves educated in the law in those days, declared flatly that, “The right of his majesty’s Protestant subjects, to have arms for their own defence, and to use them for lawful purposes, is most clear and undeniable.” Moreover, having laid out the rights of Englishmen, he wrote “And, lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defence.”

 

THE NOW SADLY neglected Swiss observer Jean-Louis de Lolme, in his Constitution of England, expressed great regard for the British system of government and of liberty. But, he warned, “All those privileges of the People, considered in themselves,” were “but feeble defences against the real strength of those who govern.” What, he asked, “would then be the resource of the People, if ever the Prince, suddenly freeing himself from all restraint, and throwing himself as it were out of the Constitution,” tried to rule as an autocrat? And he answered: “resistance ... the question has been decided in favour of this doctrine by the Laws of England,” a response protected by a Bill of Rights that “expressly insured to individuals the right of publicly preferring complaints against the abuses of Government, and moreover, of being provided with arms for their own defence.” And the famous Whig historian Lord Macaulay said freedom depended ultimately on the “power of the sword” and that “the legal check was secondary and auxiliary to that which the nation held in its own hands ... the security without which every other is insufficient.”

It is, perhaps, necessary to remind a modern audience that these are not American commentators but British ones. And moreover that they are vindicating a right set out in Constitutional stone in the Bill of Rights written in 1689 in England and echoed in that written in 1789 on the other side of the Atlantic. If these arguments seem to vindicate the American Revolution it would neither have surprised nor embarrassed those who made them; it was by then widely understood in Britain that their own government’s policy in the 1760s and 1770s had been both unjust and foolish and that the rebels had legitimately invoked their ancient British liberties not merely as a reason for taking up arms but in doing so.

These were the authorities on whom reputable opinion in Canada relied in 1867 and on through the 19th century. And they were not pure theorists but practical men looking at experience, especially that of the English Civil War and the struggles against Stuart tyranny. Even John Locke, the great expositor of the theoretical basis of individual rights, was only able to publish his seminal Two Treatises on Civil Government when he returned from exile following the expulsion of James II in the Glorious Revolution.

 

IT IS WORTH observing too that Canada was granted self-government in the wake of armed uprisings in both Upper and Lower Canada in 1837-38. This aspect of our history is now frequently airbrushed out, celebrating William Lyon Mackenzie as a newspaper publisher and Papineau as a politician while not mentioning the bit with the weapons that actually shocked the British into sending Lord Durham and avoiding a second American-style revolution by throwing in the towel even as they were winning the battles. Or the fact that in his 1837 Constitutional manifesto Mackenzie expressly included “8. The people have the right to bear arms for the defence of themselves and the State.”

It will not do to scrub this out of our memory, or to remove the replica weapons that once hung in the Black Creek Pioneer village. The fact is that explorers, First Nations and ordinary inhabitants of the various British colonies routinely carried swords, spears, bows and arrows, and firearms and used them to get food and to protect themselves. You only have to look at the pictures of Jacques Cartier, the coureurs de bois, Alexander Mackenzie and others to see weapons everywhere, used responsibly and with considerable skill. It is our heritage even if we are ashamed of it. And there is no reason we should be.

One more iconic Canadian worth mentioning in this context is Louis Riel. Although his revolt was not successful as that of Mackenzie and Papineau, either as a military venture or in bringing the political changes he sought, and he was himself mentally unstable as well as being as hard to get along with as Mackenzie, he too availed himself of the right of armed resistance. And it is hard to understand in what sense a person considers themselves a proud Canadian if they do not hold at least some regard for one of Macdonald, Mackenzie, or Riel.

Yes, Macdonald. For Sir John A. was also a strong opponent of arms control, on practical and on Constitutional grounds. Laws against carrying handguns, he told Parliament in 1877, would have “the effect of disarming the person who ought to be armed, and arming the rowdies.” As for banning them outright, it wasn’t even considered. Moreover, the state actively encouraged proficiency with long guns in particular as a preparedness measure, first against possible American invasion and later against the looming threat of world wars. Yet now the idea that the average citizen ought to be able to possess and carry such a weapon is regarded as hysterical and deeply un-Canadian.

 

THE GRADUAL squeezing out of the right to bear arms begins shortly after the First World War, with our own Red Scare about Bolsheviks especially of recent immigrant origin. The state had periodically limited access to weapons in cases where there was genuine concern about imminent disorder, for instance among Rideau Canal construction gangs, though even there it was often overlaid with a disquieting propensity to target specific ethnic groups. And aboriginals had been targeted with restrictions including on ammunition. But after the Great War it becomes, gently at first but persistently, much broader. In the 1930s further fears of radical hobos led to a tightening, and security concerns during the Second World War led among other things to fingerprinting as many as one in five Canadians.

Such measures, especially given the tinge of bigotry, ought in principle to arouse the suspicion of leftist advocates of “people power.” Yet it is in the 1960s, nominally a period of radical upheaval from below, that the Canadian state began openly to implement gun control measures targeting not criminals or allegedly unreliable fringe elements but ordinary Canadians. And R. Blake Brown, in his thoroughly researched Arming and Disarming: A History of Gun Control in Canada,[1] a remarkably fair-minded book given his clear distaste for private gun ownership and his agonizing political correctness, correctly identifies a growing feeling of shock and discontent among law-abiding gun owners as they perceived that their government no longer trusted them.

 

"Canadians were, from long before Confederation, the freest people on earth  ... and their weapons protected both the common law and the parliamentary system"

 

LOOKING AT THE long sweep of Canadian history, it is clear that they were right to be surprised and dismayed. From Magna Carta on, inhabitants of the English-speaking world have distrusted their governments not the other way around. There was long resistance in Canada, as in Britain, to arming the police. And it was historically anomalous that by April 1994 Minister of Justice Allan Rock could openly declare that only agents of the state should possess the power of the sword. Yet by now it is taken for granted that it is the Canadian way, to the point that Rock’s frank statement to the press that “I came to Ottawa with the firm belief that the only people in the country who should have guns are police officers and soldiers” was met, in most quarters, as a truism rather than an affront to our heritage.

As late as the 1960s it was not surprising to see a teenager on the streetcar with a rifle, heading for the range. Today such a spectacle would bring out a rhetorical and an actual SWAT team. Yet Canada was not a scene of carnage from its founding until Bill C-68 as contemporary rhetoric around the issue would lead an uninformed observer to conclude it must have been. Indeed, Canadians to this day are among the most heavily armed people on earth, roughly 13th in per capita private ownership of firearms. Yet we have a very low murder rate, overall and using firearms, because we are not idiots or maniacs. And for those who like evidence-based decision-making, it’s worth noting that the French are slightly ahead of us in private firearms ownership but have barely a third of our firearms murder rate. If you think guns kill people, you must believe there is something badly wrong with French guns or French aim.

 

 

The truth is that the long habit of freedom has taught us responsibility. And that as those who fought for Canada in two world wars, in Korea and beyond, mostly understood, to fight for this nation is to fight for freedom. And it may be possible to look at all this history with disdain, to say it was a great, even grotesque mistake, and our success based on liberty is a peculiar and distasteful coincidence. But it is not possible, at least not for the intellectually honest, to deny that it is our history. 

Canadians were, from long before Confederation, the freest people on earth. The common law protected their individual rights, the parliamentary system protected their political liberty, and their weapons protected both the common law and the parliamentary system, against Bad King John in the 13th century, against Charles I and James II in the 17th, and against arrogant colonial administrators in the 19th.

Canadians went armed, and to a surprising degree still do, and did not and do not wreak mayhem on one another. And no, I have not mistaken them for somebody else.

John Robson is a documentary filmmaker and contributing editor at The Dorchester Review. His documentaries include “The Great War Remembered”; “Magna Carta: Our Shared Legacy of Liberty”; “True Strong and Free: Fixing Canada’s Constitution,” and “A Right to Arms.” His website is www.johnrobson.ca. This article originally appeared in The Dorchester Review, Vol. 6, No. 2, Autumn/Winter 2016.

 

  

 

The Right to Bear Arms (continued)

‘Active History’  vs. John Robson & Gary Mauser  

(with R. Blake Brown omitted at this own request)

 

EDITOR'S NOTE:  In our last issue, John Robson made the case that Canadians inherited, with English Common Law, the right to keep and bear arms (“Armed Canadians — A Brief History”) until Canadian courts began restricting those rights during the 20th century. His argument was challenged online by Professor R. Blake Brown, the author of the book, Arming and Disarming: A History of Gun Control in Canada (U. of T. Press, 2013), which was reviewed by Dr. Gary Mauser in The Dorchester Review, Vol. 4, No. 2, Autumn/Winter 2014.

Brown’s remarks appeared on Feb. 6 on a blog called “Active History,” activehistory.ca, “The ‘Right’ to Bear Arms in Canada.” Active History then contacted The Dorchester Review to solicit a response from John Robson. We arranged this and the exchange was published online on Active History on Mar. 6.

We hoped to republish extracts from Dr. Brown’s online comments here in our Spring/Summer 2017 issue (Vol. 7, No. 1) including the exchange between Robson and Brown on ‘Active History’ online. 

However, Dr. Brown wrote to us expressly to refuse permission to reproduce them – even though we had gamely accepted the invitation to debate on Active History. Dr. Brown, then an Associate Professor and since 2018 a full Professor at Saint Mary’s University, Halifax, wrote:

I have consulted with Active History concerning the license under which I published these articles and been advised by a specialist in intellectual property law. My articles in Active History are not in the public domain. ActiveHistory.ca publishes under a license that places conditions on how articles are shared and altered.  As a result, The Dorchester Review is not permitted to share my articles in the way you propose without my permission. I do not give The Dorchester Review permission to republish these excerpts ...
I understand the financial challenges of publishing a journal today, so I would prefer to address this situation informally so as not to create any hardship for The Dorchester Review.
(Email to the editor, May 16, 2017).

 

However that may be, and in spite of this peculiar threat from Professor Brown, we’re pleased that Dr. Robson did kindly extend permission to republish his side of the exchange. The result below is followed by a new comment that we commissioned separately from Dr. Mauser.

 

‘Active History’

Dr. Brown wrote:

[deleted]

 

John Robson

In his reply at ‘Active History,’ Dr. Robson wrote:

 [Dr. Brown] expends considerable energy demolishing the claim that Canadians today enjoy a constitutionally protected right to bear arms enforceable through the courts. But I never made any such assertion. In the documentary we show the opposite, in part citing the case involving Donna and Bruce Montague that he also mentions. And I make it plain throughout my Dorchester Review piece that such a claim is now met with derision and bafflement particularly within the Canadian government.

What I do say, and here Brown misrepresents my argument largely by omission, is that we did long enjoy this right as part of a robust protection of individual rights inherited from Britain that was the foundation of our success as a nation. If we have recently discarded that inheritance, on matters from free speech to property to self-defence, we ought at least to acknowledge that doing so represents a dramatic change of course even if we support that change.

... Brown goes on to say that “Blackstone enunciated a much more limited right — that subjects had a right to have arms ‘for their defence, suitable to their condition and degree, and such as are allowed by law.’” And I must protest this selective quotation. In the very next paragraph, at the very end of Chapter I of Book I of his Commentaries (Liberty Fund digital edition), Blackstone wrote:

to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defence. And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints: restraints in themselves so gentle and moderate, as will appear, upon further inquiry, that no man of sense or probity would wish to see them slackened.

 

... Surely Brown would not on this basis claim that Blackstone enunciated only a limited right to due process.

 

‘Active History’

 Dr. Brown continues:

[deleted]

  

Gary Mauser Replies           

BLAKE BROWN'S RECENT critique fails to hit its target. He denies that Canadians have an individual right to possess firearms for personal protection that we have inherited from our shared English legal traditions. Despite being a historian, Brown pins his argument on contemporary court decisions, while ignoring Canadian history. Brown observes that modern Canadian courts have repeatedly rejected arguments that Canadians enjoy firearm rights enshrined in the English Bill of Rights and the Magna Carta.

Brown ignores the historical record because he knows that throughout the 19th century and into the early 20th century Canadians widely accepted that, as British subjects, they naturally shared British liberties, including firearms rights. Sir John A Macdonald, the first prime minister, opposed various firearms bills, asserting that disarming Canadians would violate their rights as English subjects, as Brown relates in his book, Arming and Disarming. Other prominent 19th century Canadians agreed that Canadians shared English rights, including Liberal MP David Mills, who became a Supreme Court of Canada justice, and Edward Blake, leader of the Liberal Party from 1880 to 1887.

Even as 19th century parliamentarians believed that English Canadians had the right to own firearms for personal protection, they were not eager to extend firearms rights to non-English Canadians. They willingly crafted firearms restrictions targeting groups that they considered “suspicious,” such as Aboriginal peoples and at times French habitants, and later Irish or Italian workers, or in the years following the Russian Revolution, alleged Bolsheviks.

Beginning early in the 20th century, Canadian jurists started to play down the idea that Canadians inherited English rights by invoking the “living tree” approach to interpreting Canadian law, which takes its name from the famous case, Edwards vs. Canada in 1929. Under the “living tree” interpretation, courts take account of current conditions in deciding how to interpret the law, placing less importance on the original text. Canadian jurists, adopting this approach, have rejected firearms rights for civilians.

 

UNFORTUNATELY FOR BROWN, he has pinned his argument on moving ground. Under the “living tree” interpretation, contemporary court opinion cannot be the final word on how to interpret the law. What the tree gives it can also take away. Current courts may not accept that Canadians have an individual right to possess firearms for personal protection, but a future court may well disagree. Instead of playing down the British historical and legal connections as is currently fashionable, future Canadian courts may well rediscover and reinvigorate traditional British rights. Brown fails to understand the enduring power of grass roots movements.

Instead of justifying the expansion of federal powers by asserting that the ownership of firearms is uniquely dangerous, or “suspicious,” a future court may hold that Canadians, regardless of their national origins, enjoy the traditional rights and responsibilities of free English subjects, including the right to arm themselves for personal protection. Indeed, a future court, under the influence of a more conservative zeitgeist, or perhaps changing social conditions, may decide massive expansion of governmental power that has taken place over the past century has not been as beneficial as hoped but has merely resulted in a bloated bureaucracy, accompanied by serious problems with accountability. No methodologically respectable study has been able to find that restrictive Canadian gun laws have reduced criminal violence, e.g., Langmann’s excellent recent study.(1) The willingness to retreat from an all-protective state could well result in encouraging greater individual responsibilities, including the right to arms for personal protection.

It is entirely plausible that future Canadian courts will reject the unreasonable demonization of firearm owners, which appears to be held by central Canadian elites. No other law-abiding community in Canada is subjected to a governmental bureaucracy that assumes, without any evidence, that every member is potentially violent — not Catholics, not Jews, not Muslims, not recent immigrants, nor even violent criminals released from custody. Public safety is not improved by the maintenance of an expensive, invasive police bureaucracy to screen and monitor millions of law-abiding Canadians.

 

STATISTICS SHOW that firearms owners are typical middle-class Canadians: employed, tax-paying, law-abiding, contributing citizens. Demographically, civilian gun-owners are solid citizens who contribute substantially to their communities. Surveys show that handgun owners tend to be MD's, executives, and businessmen and women. Historically, armed civilians have played crucial leadership roles in their communities, including protecting the country from attack. The primary reason (73%) Canadians give for owning a firearm is hunting. Around one quarter of the adult population in Canada has hunted at some time in their lives. Surveys find that there are more lawful gun owners in urban areas than in rural areas, even though the percentage of households in rural areas that own firearms is higher. The best estimate is that there are between 3 and 3.5 million Canadian residents who personally own firearms.

Gun owners as a group are much less likely to be murderous than other Canadians. I found in a Special Request to Statistics Canada that licensed gun owners had a homicide rate of 0.60 per 100,000 licensed gun owners over the 16-year period 1997-2012. During the same period, the average national homicide rate (including gun owners) was 1.81 per 100,000 people.

 

CANADA’S FIREARM owners are a public safety resource, not a threat to public safety. It may be a surprise to learn just how many Canadians report using guns for self-defence. Based on representative samples of Canadian residents (taken between 1988 and 1995), firearms were reported to have been used for protection from human or animal threat between 60,000 and 80,000 times per year (approximately 19,000 times against a human threat). This study remains the best empirical estimate of the frequency with which firearms are used for personal protection in Canada.(2) 

Blake Brown has built his argument on a slippery foundation. What the “living tree” gives it can take away. Research undermines contemporary suspicions about lawful gun-owners as a class, and political culture keeps changing. Building a bureaucracy to monitor gun-ownership has not been shown to lower murder or violent crime rates. In fact, armed citizens save lives. Future Canadian courts may again embrace the Magna Carta and the English Bill of Rights.

 

Notes

1. Caillin Langmann, “Canadian Firearms Legislation and Effects on Homicide 1974 to 2008.” Journal of Interpersonal Violence, 2012.

2. Gary Mauser, “Armed Self Defense: the Canadian Case,” Journal of Criminal Justice 24:5 (1996), pp. 393-406.


Older Post Newer Post


Leave a comment

Please note, comments must be approved before they are published