Gun Control and the Constitution of Canada

Vincent J. Curtis

17 Mar 22

After William the Conqueror occupied England, he required his barons to obtain a license from him before they could crenellate their castles.  Crenellation makes a castle more defensible against a siege, and William wanted to make it difficult for any of his barons to rebel against him.

And rebel they could, since they had arms and followers.  Unlike his son William Rufus, William ruled in a manner that made him at least respected by his barons.

On June 15, 1215, at a place called Runnymede, which is near Windsor Castle, the leading barons of the realm met with King John of England, where John, under pressure of rebellion, signed what came to be called Magna Carta.  This was the deal: either John signed, or the barons would rise in rebellion.  Being barons, they had arms and followers, and would be able easily to overwhelm the unpopular John if it came to rebellion.

On June 7, 1628, the Parliament at Westminster passed the Petition of Right, which demanded of King Charles I that he conform to Bills and agreements he previously made and to forego the assertion of arbitrary powers.  Parliament passed the Habeas Corpus Act to protect themselves from arbitrary arrest and detention by Charles.  Charles didn’t listen to the Grand Remonstrance, and in 1642 an impatient nation rose in civil war and deposed the King, Charles famously losing his head.  In those days, the owning of a sword was nothing remarkable, as it gave the owner a means of defending himself, self-defence being a recognized principle of English law.

A restored Stuart dynasty failed to learn its lesson, and in 1688, with the nation again rising in the Glorious Revolution, James II abdicated, and William of Orange and his wife Mary Stuart assumed jointly the throne of England.  The Bill of Rights was passed into law in 1689, and among its provisions was the condemnation of: “causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law.”  And “By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law.”

Consequently, it was declared and agreed to by the King that: “That the raising or keeping of a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;” and “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.”

Together, these two provisions enable oppressed subjects to rebel against Kingly misrule.  There were, of course, many constraints against such an extreme measure as rebellion, but the principle is clear: that misrule by the King could have consequences.  The King’s defenses against rebellion were, first, the awful gravity of rising against the King, who had a near divine right to rule, and, second, good rule by the King, making rebellion unnecessary.

Such was the law of the land in the thirteen colonies when, because of a quaking rebellion, British soldiers attempted unsuccessfully to confiscate the firearms of the colonists.  That the colonists retained their arms enabled the American Revolution to succeed.  The right to keep and bear arms provided in the 1689 Bill and the attempt by the British to confiscate privately owned firearms as a means of quelling rebellion are what led to the Second Amendment to the Constitution of the United States.  “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

In the American view, a militia was what won the American Revolution against King George III.  While it may have occurred to some that a government so excellently devised as American one, and led by so great and good a character as General Washington, an armed citizenry was no longer necessary or desirable.  However, there were enough anti-federalists around that the Bill of Rights, including the Second Amendment, had to be ratified if the constitution drafted in Philadelphia was going to be enacted.  Even in America, the power of the citizen to rebel against misrule was going to be retained, however remotely.

The Dominion of Canada inherited British law as it stood in 1867, which included Magna Carta, the Petition of Right, Habeas Corpus and the Bill of Rights of 1689.  The Riel Rebellions of 1870 and 1885 were both suppressed by superior military force, but the rebellions were possible because the Metis people of Rupert’s Land had arms.  There was the FLQ crisis in 1970, but various gun control bills didn’t begin passing the Canadian parliament, until 1977.

The Firearms Act of 1995 gave the government the nascent power to confiscate firearms, contrary to the provisions of the Bill of Rights of 1689, though it wasn’t exercised on a large scale until May 1, 2020.  On that date, the government, by order in council, declared approximately 250,000 semi-automatic rifles to be prohibited, and revoked the permits granted to people under the 1995 law to possess them.  This number is at least three times the number of rifles the Canadian military has.  In short, the gun confiscation would deprive the people of Canada of the means of armed rebellion against misrule, contrary to law and custom going back nearly 1000 years and particularly against the intent of the Bill of Rights of 1689.

Lest one tut-tut such a need as never arising in these days of democratic election, present need is not the point.  One only has to look to Australia and New Zealand as democracies that subjected the people to the most extreme and arbitrary misrule and police enforcement under a rubric of combatting a disease – after the firearms of their populations had been confiscated.  In Canada, the Emergencies Act was declared, bank accounts frozen, and donations attempted to be seized by order of the Prime Minister’s Office - to solve a parking problem on Wellington Street in Ottawa.  That protest arose because of the misrule of the Prime Minister, who would not deign to meet with the protesters or even propose to redress their grievances.  (He was democracy itself, he argued.) The protest was simply declared to be an ‘illegal occupation’ by another political leader, and that was that.  It wasn’t an armed insurrection, the protesters were peaceful, unarmed, and they were seeking redress of grievance. Nevertheless, the protest was broken up by armed agents of the state using superior force, and by the attacks on personal finances before guilt was proven in court.

It is said that an armed society is a polite society, but there’s something about an armed citizenry that tends to keep the rulers polite also, or at least restrained.  Why should a popularly elected government ruling well fear armed rebellion?

The law and custom of the English speaking world has been to lay the executive government open to armed rebellion should it misrule.  King William III was particularly clear on this point; he didn’t even require loyalty oaths from those around him.  The government is protected against armed rebellion, first, by the awful prospect of rebellion itself – the overthrowing of the existing order, an act never to be taken lightly - by the maintenance of armed agents in the form of police and a standing army, by other powers such as those over banks, and ultimately by its own good rule.

Much pettifogging often attends the defence of misrule, but no amount of law can justify misrule.  A government that takes the means of armed rebellion away from its citizens, for whatever reason, is up to no good – if not for itself, then on behalf of a successor government it cannot control and does not even know.

A thousand years of experience shows that the attempt to mass confiscate arms from the public, for whatever excuse alleged, must be resisted as being the first act of a further program of oppression preparatory to misrule, however innocent the confiscators protest themselves to be.  In 1995, Prime Minister Jean Chretien promised that registration would not lead to confiscation; well, less than thirty years on, that trust and promise was broken, and confiscation has begun.  The innocent rulers of today can make no worthwhile promises concerning the misrule of future governments.

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