Gun Rights in Canada: An Exchange

      3 Comments on Gun Rights in Canada: An Exchange

(Sometimes differences on historical issues cannot be contained in the comments section. This exchange follows up on an earlier post by R. Blake Brown on gun rights in Canada. A response to that post by John Robson, and Brown’s reply, follow. We would like to thank our two authors for their willingness to participate in this sort of exchange.)

John Robson, left, and R. Blake Brown

John Robson’s response:

It is flattering that R. Blake Brown responded on Activehistory to my recent article “The Right to Bear Arms” published in the Autumn/Winter 2016 Dorchester Review, to which I am a contributing editor. His Arming and Disarming is a scrupulously researched book I found helpful in the documentary from which my article was drawn. But I must protest that he misrepresents my argument in several important ways.

He 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 the Dorchester Review piece that such a claim is now met with derision and bafflement particularly within the Canadian government. (Which, it seems necessary to stress in the face of frequent media references to “the government” losing a court case, is expressly declared in the Constitution Act 1867 to consist of three branches, the executive, legislative and judiciary.)

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.

Here I must take issue with his hasty dismissal of “a handful of statements made by nineteenth-century politicians” such as Sir John A. Macdonald in support of the right to bear arms protected in the British 1688/89 Bill of Rights. He says “Robson fails to note that references to such a right were relatively rare in the nineteenth century” but himself fails to note that they were rarely necessary because it was so broadly taken for granted that the subject rarely arose.

Like the court that heard Bruce Montague’s appeal, he makes strikingly short work of my assertion that the preamble to the British North America Act declaring our constitution “similar in Principle to that of the United Kingdom” means it incorporated protections from the Bill of Rights and indeed Magna Carta, and more generally granted us limited government and robust individual rights on the British model. Yet the drafters, on both sides of the Atlantic, must have thought this phrase meant something important. If it is not what I assert, whatever can it have been, given that our 1867 Constitution was both federal and entirely written in one place, very much unlike the British one?

Instead Brown leaps immediately to a 2009 Saskatchewan Court of Appeal ruling against the right to possess firearms. That a right is no longer respected, legally or otherwise, in 2009 is hardly evidence that it was not respected in the late 19th century when people like Macdonald rejected gun control on the grounds that the Bill of Rights was indeed incorporated into our Constitutional order, any more than courts’ increasing sympathy to restrictions on free speech today means it was not protected in 1890 or, indeed, that it ought not to be better protected than it currently is.

In this context Brown did catch me in an embarrassing mistake, a quotation I attributed to William Blackstone that was in fact from the Recorder of London, chief legal advisor to the mayor and council, in 1780. I obtained it from a secondary source but of course should have checked Blackstone directly before quoting. (As to his reproaching me for not quoting the Bill of Rights directly, I did in the documentary.) But 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.”

It is difficult to misread this passage as denying a broad right to bear arms that Englishmen in the Thirteen Colonies certainly believed they enjoyed at precisely this period. Especially given that Blackstone applies his “gentle and moderate” qualification equally to the “free course of justice in the courts of law”. Surely Brown would not on this basis claim that Blackstone enunciated only a limited right to due process.

Canada’s Founders learned their law from men like Blackstone. And if his assertion about “having and using arms for self-preservation and defence” is no longer true today, it is not proof that it was not true in the 19th century and earlier, nor that we are wiser that our forebears in extending the power of the state at the expense of individual rights.

Brown reproaches me for making “no mention of the fact that the meaning and extent of the English right found in the Bill of Rights has been debated fiercely in the past twenty-five years”. As a trained historian I am of course aware that scholars have fiercely debated everything imaginable from whether Stalin was a Marxist to whether guns were common in the antebellum United States to whether texts have any meaning. But as the great G.K. Chesterton once said, “The object of opening the mind, as of opening the mouth, is to shut it again on something solid.” And in this case that Bill of Rights guarantee meant exactly what it was understood to mean by practical politicians, learned commentators and the general public at the time and for more than 200 years afterward.

Brown concludes by accusing me of a “one-sided account” encouraging “the polarization of the gun control issue” and of “mostly peddling things that sound true.” But with apologies for the mistaken attribution of that one Blackstone quotation, what I am encouraging is understanding our historical origins clearly, whether or not one is sympathetic to them in whole or in part. And it does not merely sound true that the English liberties we inherited included a broad right to bear arms from before Magna Carta, which Blackstone rightly notes was “obtained, sword in hand, from King John”, down through roughly the mid-20th century.

It is true.

***

R. Blake Brown replies:

In his Dorchester Review article Robson challenges what he describes as mainstream thinking about the history of firearms in Canada. He argues that the English constitution, and thus by extension the Canadian constitution, traditionally included a right to bear arms. He notes that politicians have disarmed groups deemed suspicious even though, Robson contends, there is a no correlation between regulating firearms and lowering rates of gun crime (in fact he suggests the opposite is true). Robson also asserts that firearms have been important in successful efforts to resist government tyranny. Finally, he claims that advocates of postwar efforts to regulate ‘average’ gun owners (such as hunters and target shooters) failed to appreciate Canada’s long history of widespread private firearm ownership.

I have no quibbles with some of these claims. In my book, Arming and Disarming: A History of Gun Control in Canada, I demonstrate that, yes, politicians have periodically attempted to limit firearm ownership or use by ‘suspicious’ groups. Robson’s reminder that Canada had, and has, a relatively high rate of private firearm ownership compared to many other nations is also not surprising. However, as I indicated in my earlier Active History post, I have concerns about some of Robson’s other assertions, particularly his comments about a right to bear arms in Canada.

In his response, Robson rejects that he suggested in the Dorchester Review that Canadians now have a right to possess arms. As I noted in my original piece, his website asserts otherwise: “your right to bear arms is as Canadian as maple syrup.” I think that many readers of Robson’s article would also draw the conclusion that Canadians had, and still have, such a right since he begins by positing that Canadians’ “long and glorious tradition of liberty” includes “a proud right to bear arms.”[i] In his response Robson claims that in Canada “we did long enjoy this right as part of a robust protection of individual rights inherited from Britain,” but that “we have recently discarded that inheritance.” This kind of explicit qualifier, however, is absent from his Dorchester Review article.

Such a qualifier is also absent from his documentary “A Right to Arms”, from which he says he drew his article in the Dorchester Review.[ii] Robson suggests that the right to possess firearms is under threat, not that no such right currently exists. For example, he argues the right to bear arms was constitutionally entrenched in England, but “as it erodes we become less Canadian.” He also includes a sympathetic interview with gun-rights activist Bruce Montague, in which Mr. Montague claims that “We have a right to own our firearms – a God-given right and a constitutionally-protected right to own and use our firearms for self-defence.” Robson does not contradict Mr. Montague’s assertion.

In addition, in the concluding segment of his documentary (entitled “A Canadian Right”) Robson asserts that if Canadians want their nation “to remain worthy of true patriot love” then they must preserve their heritage, including an “emphasis upon individual rights – the right of free speech and free assembly, the right to own property, the right to choose and control our governments, and the right to possess and use weapons to defend ourselves, our homes, our communities, and our nation.” It seems clear to me that Robson intends to create the perception that the right to bear arms is under attack, not that “we have recently discarded that inheritance.”

However, let’s assume that Robson simply wants to claim that such a right existed in Canada until it was “recently discarded.”[iii] I must then ask: where is the evidence to support this? He does not disagree with my claim that only a handful of nineteenth-century politicians ever voiced this view, but says such comments were “rarely necessary because it was so broadly taken for granted that the subject rarely arose.” Absence of evidence is thus conveniently turned into evidence for widespread acceptance of a right to bear arms.

This is dubious. British North Americans (and early Canadians) frequently spoke about their civil liberties. Let me illustrate this with one example. In my first book, A Trying Question: The Jury in Nineteenth-Century Canada, I examined debates about the jury system in nineteenth-century Upper Canada / Ontario and Nova Scotia.[iv] Many legislators, lawyers, and judges referred to the jury as the ‘palladium of liberty’ and spoke of the role of juries in defending subjects against oppressive rule. In comparison, I only found a small handful of allusions to the right to possess weapons, and these references stopped by the 1880s.

Perhaps there is more evidence of the widespread acceptance of a right to bear arms in Canada that I have not seen. I have never come across a nineteenth-century legal case in which it is mentioned. My efforts to find more references to this right in newspapers and in historical databases proved fruitless.

One might support the idea that many Canadians believed in such a right by showing that legislators consistently refused to pass laws affecting gun possession. However, many politicians agreed to legislation affecting firearm possession when they felt circumstances warranted. For example, the introduction of inexpensive revolvers in the last decades of the nineteenth-century sparked concerns about interpersonal violence and accidents. Parliament thus passed measures that placed limits on firearm possession. In 1877 Ottawa regulated the carrying of pistols. In 1892 and 1913, Ottawa strengthened the rules regarding pistols, and in 1934 the federal government created a handgun registry.

The introduction of such measures also demonstrates the limited nature the English Bill of Rights provision. Robson’s response does not engage with the obvious limits embedded in the language of Article 7[v]; instead, he quotes a supportive passage from Blackstone’s Commentaries. But, does Robson think that the right was restricted to Canadian Protestant men? Or to just men of means? More importantly, how does Robson respond to the clause that the right to possess arms was “as allowed by Law”?

And remember that the English Bill of Rights was not equivalent to the American Bill of Rights or the Charter of Rights and Freedoms. It was an ordinary statute that could be overridden by other acts of Parliament. As Canada’s leading constitutional scholar, Peter Hogg, explains, “the central feature of the Constitution of the United Kingdom, and of its Parliament, was in 1867, and still is, parliamentary sovereignty: any of the civil liberties, including freedom of political speech, can be abolished by the Parliament at Westminister at any time.”[vi] The history of gun control in the United Kingdom nicely illustrates this. The British Parliament passed a series of strict gun controls in the twentieth century. This begs the question: if even the British do not take the English Bill of Rights provision seriously, why should Canadians?

I am also perplexed that Robson continues to pursue the idea that an English right to possess arms was incorporated into Canadian law through the preamble of the BNA Act. Courts have rejected that argument. Robson writes on this subject without references so it is difficult to determine the source of this position. He may have taken it from an unpublished paper written by political scientist (and politician) Ted Morton with the financial assistance of several gun groups. Morton uses several sketchy legal arguments, including the English Bill of Rights / BNA Act preamble claim, to question the constitutionality of Canada’s gun laws.[vii] However, Morton, like Robson, seems to offer this interpretation simply because it sounds plausible.

A.J. Somerset, author of the fascinating book Arms: The Culture and Credo of the Gun, recently tweeted that “Arguments that Canada has a right to bear arms periodically come back to life, like persistent zombies.”[viii] I suspect several factors explain the persistence of such claims. Many gun owners, annoyed with the firearm laws passed after the 1989 Montreal Massacre, have longed for the ability to claim a right to their weapons like American gun owners. Invoking the English constitutional lineage also has the advantage of stoking romantic notions of a version of Canada defined by stability, order, and liberty – of Canada at a time when judges and politicians valued property rights and the right to defend one’s home.

The call for recognition of gun rights thus reflects a desire to reorient Canadian political and legal culture. This may be what motivates Robson. In his documentary, he claims that “Canadians are capable and self reliant people who can be trusted, far more than governments can be trusted, to make judgments about what needs to be done and how it needs to be done.” Perhaps, but this is a political opinion, not a historical fact.

***

John Robson, commentator-at-large with News Talk Radio 580 CFRA, columnist with the National Post, documentary filmmaker and Invited Professor at the University of Ottawa, holds a B.A. and M.A. in history from the University of Toronto and a Ph.D in American history from the University of Texas at Austin. You can find links to his documentaries and other work at www.johnrobson.ca.

R. Blake Brown is Associate Professor of History at Saint Mary’s University and an Adjunct Professor at the Schulich School of Law, Dalhousie University. He is the author of Arming and Disarming: A History of Gun Control in Canada (Toronto: University of Toronto Press and the Osgoode Society for Canadian Legal History, 2012). In a forthcoming article in the Canadian Journal of Law & Society, “Firearm ‘Rights’ in Canada: Law and History in the Debates over Gun Control,” Dr. Brown explores the efforts to invoke history to assert a right to possess firearms in Canada. Follow him on Twitter @RBlakeBrown.

 


Notes

[i]John Robson, “Armed Canadians: A Brief History,” Dorchester Review, 6:2 (2016), 57.

[ii]Robson wrote his Ph.D. dissertation on American foreign policy during the Nixon administration, and there are times when his lack of academic background in Canadian history is evident in the documentary.  For example, Robson says that the rebellions in Upper and Lower Canada in 1837 and 1838 resulted in the granting of “representative government.”  I assume he means responsible government, since the Canadas had long had representative government.

[iii]If Robson believes the right to possess firearms does not now exist in Canada, I strongly encourage him to state this in his keynote address at the upcoming “Right to Firearms” seminar hosted by the Canadian Unlicensed Firearms Owners Association. For details of the event see http://www.cufoa.ca/.

[iv]R. Blake Brown, A Trying Question: The Jury in Nineteenth-Century Canada (Toronto: University of Toronto Press and the Osgoode Society, 2009).

[v]The Bill of Rights provided “that the Subjects which are Protestants may have Armes for their defence Suitable to their Condition and as allowed by Law.” Bill of Rights, 1689, 1 Will & Mary, sess. 2, c. 2.

[vi]Peter W. Hogg, Constitutional Law of Canada, 2010 Student Edition (Toronto: Carswell, 2010), 34-12.

[vii]F.L. (Ted) Morton, “How the Firearms Act (Bill C-68) Violates the Charter of Rights and Freedoms,” unpublished paper.  The paper can be found on the websites of several organizations representing gun owners, including the website of the Canadian Shooting Sports Association: http://cssa-cila.org/garryb/publications/violatescharterofrightsandfreedom.htm.

[viii]A.J. Somerset, Arms: The Culture and Credo of the Gun (Windsor, ON: Biblioasis, 2015); A.J. Somerset, Twitter post, February 6, 2017, 6:21 a.m., https://twitter.com/ajsomerset/status/828609629932355585.

3 thoughts on “Gun Rights in Canada: An Exchange

  1. Sean Kheraj

    I’m pleased to see Brown give a fulsome and well-documented response to Robson’s critiques. It bothers me that this kind of dialogue creates a false sense of equivalency to this “debate.” One writer offers tepid, weak arguments based on faulty logic and limited knowledge of historical context. The other easily exposes those weaknesses using ample evidence, broad knowledge of relevant context, and sound reasoning.

  2. Pingback: Canadian History Roundup – Week of March 5, 2017 | Unwritten Histories

Please note: ActiveHistory.ca encourages comment and constructive discussion of our articles. We reserve the right to delete comments submitted under aliases, or that contain spam, harassment, or attacks on an individual.