“The Right to Bear Arms.”
By Peter Landry.1
The right to bear arms, a legal theory which I will develop to some degree, it seems to me, is not one that is receiving any serious legal consideration in this country; and it ought to be. The fact of the matter is that the only people in this country advocating the preservation of the right to own a gun are those who currently own guns. This is so, likely because, it is only a current gun owner who can see any good in owning a gun. I do not own a gun because I see no advantage in owning one, at least, not right at this moment; if I did, — I’d own one, quick enough, and would not care for any man or woman who would deny me!
Now, before I go any further, I should say, that I do not believe people should go about shooting off their guns as they please. I believe there ought to be (and I believe there exists and has existed for hundreds of years) laws, criminal in nature, against such a dangerous and deadly activity.2 I’m all for such laws.
Now, that I have gotten that off my chest, — Let’s See? Oh! Yes. I want to give you some legal advise, — and feel free to check it out with your own lawyer. I assert, correctly I think, that it is a rule of common law (the governing law in Canada) that a person can use as much force as is necessary to defend himself or herself.3 Logically then, one, having such a right to self-defence, has the right to use the best means to give it full effect. No one, including government should be able to fetter it; this would include the registration of guns, — an act, as history will readily show, which invariably proceeds their seizure.4 And, so, my proposition is this: Canadian citizens, though their use is to be restricted, have a right to own guns and not to be obliged to make any announcement to any one, including government, of whether they do or whether they don’t.5
The right to bear arms, as I now think I have demonstrated, is a necessary corollary to the right of self defence; but, — it is more than that. It is an independent right standing alone on solid constitutional feet. Yes, indeed! A constitutional right, — not just in the United States6 but also in England, and in Canada. For most, even to begin to appreciate this heretical legal assertion, they must take a couple of short and easily followed constitutional law lessons (no Latin or law school training needed). The first is in current constitutional law; and, the second, is on a very large milestone (Bill of Rights of 1688) which is located prominently on the road of constitutional history.
The Constitution Act of 1982 (The Charter of Rights), as any one with the slightest familiarity of constitutional history will know, is not inclusive of all rights that you and I, as Canadians, enjoy (or would like to enjoy). The Charter was a political show, and a bad one at that; it backfired.7 We had rights and a constitution before 1982, and the governments back then gave us nothing we did not already have. The fact of the matter is, The Constitution Act of 1982, by a specific provision within it, preserves our prior existing constitution which consists of many parts, one being the right to bear arms.
As for the second lesson: we might start with King John, his nobles, the fields of Runnymede, and the Magna Carta of 1215.8 But, no, for this very short exposition, it is only necessary to start at 1688. This was the year of the English Bill of Rights. This bill, you may remember from your history came about as a result of The Glorious Revolution. The Bill of Rights did not list the innumerable rights of an Englishman, nor did it have to; but it did confirm an important one, especially in the context of the dispute between the king and the “people’s representatives” that gave rise to the Glorious Revolution. You see, — and this might sound familiar, as this is the approach of all despots throughout all times and all places — James II was the one who started this fight by insisting that guns were to be outlawed (he and his henchmen would feel safer with such an arrangement). Well, — it didn’t work, and the people and their representatives, after much turmoil, brought the king to terms, viz., these terms being, The Bill of Rights of 1688. And to fully rub James’ face in it, it contained, as its leading term, the right to bear arms.9 (Incidentally, the only other right the Bill of Rights dealt with was the right to petition, viz., the right to bring one’s grievance before a court of law.)
Thus, my two short constitutional lessons come to an end. And, the conclusion is, that the right to bear arms (to be distinguished from the very limited right to use them) is a constitutional right, an inextinguishable right, with as solid a base as any other constitutional right. Its footings are found somewhere deep in the dark times of English constitutional history and was confirmed by the Bill of Rights of 1688 and has since been confirmed by a string of English common law cases.10
I now pass on to a more theoretical level: There are good and valid reason why the right to bear arms is a constitutional right. It is this: it is necessary in a civilized society to retain in the populace, the diversified and the deep capability to resist tyranny, by force of arms if necessary.11 This theory can be traced back to John Locke.
John Locke (1632-1704) was an English statesman and political philosopher. Locke lived in very interesting historic times; he and his powerful political friends (Lord Shaftesbury mostly) were sometimes in power, and sometimes out of power. Locke’s life is an interesting one and I cannot go into details at this place; suffice to say that it was necessary for Locke, being one who was against “Divine Right of Kings,” to state his philosophy, a philosophy to which the government might turn for its authority. Locke insisted, unlike Hobbes12, that man was fundamentally good and could live will enough if left alone, but could live better under government. Government by its nature had to claim, in certain circumstances, authority over the individual. In earlier times it was relatively simple: kings claimed, and were supported by the mystics of the time (religionists), that they derived their hereditary authority from God. Well by the 17th century this was not such an acceptable theory, especially when kings with their divine power were wont to abuse the people, and so it fell to Locke the task of expressing an alternative theory of governmental power. While insisting on the natural morality of pre-social man, Locke, nonetheless, felt that an ordinary man’s lot in life would improve if he were, as an individual, to contract out “into civil society by surrendering personal power to the ruler and magistrates.” This, for Locke, was “a method of securing natural morality more efficiently.” (Thus, was stated the so-called Social contract theory, the one that was disastrously picked up by Rousseau and those that followed in his footsteps.) Locke stated, “The ruling body if it offends against natural law must be deposed,” viz., that government rests on popular consent and rebellion is permissible when government subverts the ends – the protection of life, liberty, and property – for which it is established. This was the philosophical stuff which sanctioned the rebellions of both the American colonialists in 1775, and the French in 1789.13
1 Peter Landry is a lawyer and has been, for 28 years, in private practice in the City of Dartmouth. He invites correspondence on the topic and may be contacted at P.O. Box 1200, Dartmouth, Nova Scotia, B2Y 4B8. 2 Do not accept that guns kill; they do in a revolution and in a war. But no great numbers die from gunshot in normal times. “Drowning accidents, bicycle accidents, skate board accidents, automobile accidents, poisoning from drug (medication) accidents, and so on, result in far more deaths than firearms accidents.” In one major study: “eighteen thousand [gun] permit holders were tracked. Three involved gun-related crimes and ten involved instances where license holders successfully used their guns to fend off criminal attackers. There was not one single case in which a license holder had his gun taken away by a criminal, shot someone by accident, or was killed defending himself or herself.” And, as for assault weapons: “An assault weapon is nothing more than a contrived term that now applies to all semi-automatic firearms. Their distinguishing feature is that after firing a single shot by one pull of the trigger, a mechanism reloads another cartridge.” (Guns, Crime, and Freedom by Wayne LaPierre (chief executive officer of the National Rifle Association of America) (Regnery Publishing) available through Laissez Faire Books.)
3 The Canadian criminal code allows “Everyone who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if … he believes on reasonable and justifiable grounds that he cannot otherwise preserve himself from death or grievous bodily harm.” This is a legal principle that has come to us from the common law. The common law, with its unsurpassed powers of adaptability and expansion, has its roots, long and deep, into the history of England; its culture; its traditions. All of which has been emulated world wide. As for an Englishman’s right to defend himself: well, interestingly enough, it took a a Frenchman, a much respected legal philosopher, by the name of Montesquieu (1689-1755) to point it out. He said, “Who does not see that self-defence is a duty superior to every precept?” (Incidentally, Montesquieu went to England and studied the political writings of John Locke (1632-1704), person to whom we shall refer. In his work, The Spirit of Laws, written in 1748, Montesquieu held up the British Constitution to the admiration of the world. He was most famous for his pronouncement of the separation of government powers doctrine (legislative, executive, and judicial), a doctrine that was picked up the framers of the American Constitution; but, as is easily shown (see my writings elsewhere) it is a doctrine that, in Canada, is “More honour’d in the breach, then the observance.”
4 This is to say nothing of “registration costs” which, it would appear, will amount to a penal tax (probably unconstitutional) on a particular segment of our society, a segment which has committed no criminal act. Further, this is to say nothing of the huge and intrusive bureaucracy which these “registration costs” will fund. And further, this is to say nothing of the impossibility of such a scheme to use another portion of the dwindling resources of the community to enforce law abiding citizens to register their guns, certainly the criminals will not be registering them. And further, this is to say nothing of The Law of Unintended Effects, as these new draconian gun laws drive “illegal guns,” and more of them, deep into our society. (Incidentally, this very set of arguments can be used against the government’s war against drugs.)
5 Because of the perception, if not the reality, of increasing crime and of the reality of decreasing police protection, guns become increasingly more necessary for the average citizen, — and not just in the ghettoes of the big American cities, but right here in Smalltown, Canada. “The statistics in the United States [can they be so different in Canada] are that, in 1994, one American will lose his or her life to violent crime every 21 minutes. One woman will be raped every 5 minutes. One of our citizens will be robbed every 46 seconds, assaulted every 29 seconds, or have his or her home invaded by a burglar every 5 seconds.” (Guns, Crime, and Freedom, Op. cit.) There is no proof that guns in the hands of law abiding citizens will lead to increased crime rates, on the contrary: the right of citizens to privately own guns is a deterrent to crime. Where a criminal is contemplating a particular crime he will usually weigh in the consequences; not only those that flow when being caught by the governmental authorities, the police; but (and to a much greater degree, I suggest) being caught by the owner or the person being most effected by the act. A wolf will readily come down on a sheep when the shepherd is not around, a wolf will think twice before tackling what potentially is another wolf; and that’s the plain and short of it. This is born out by the statistics as is set out in the above cited work, Guns, Crime, and Freedom: “The National Institute of Justice spent 3 years surveying 1,800 prisoners and reported: 81 percent agreed that the ‘smart criminal’ will attempt to find out if a potential victim is armed… 74 percent felt that burglars avoided occupied dwellings for fear of being shot… 57 percent felt that the typical criminal feared being shot by citizens more than he feared being shot by police… 69 percent of ‘handgun predators’ personally knew other criminals who were scared off or shot at by armed victims.”
6 The Second Amendment of the American constitution.
7 It was thought at the time that such a listing of “rights” would impress people and bring them together with other parts of the country. It was especially aimed at those in Quebec, but Quebec, as represented by their provincial government leaders of the time, didn’t want it (for whatever reason). Stupidly, the Prime minister and the premiers of the time refused to wait for an unanimous agreement (necessary in any real partnership, no matter the rules) and pushed the Charter through, without Quebec’s agreement. Quebec, with good reason, has been mad ever since.
8 The Magna Carta contains a venerable list of rights, to which, these days, we can lay real claim, including, among others: King not to tax, but only by the common council of the kingdom (Art. 12); “ancient liberties and customs” are preserved (Art. 13); Court of Common Pleas set up (Art. 17); Mercy might be shown to villains, but only “by the oath of honest men of the vicinage” (Art. 20); No servant of the crown is able to take a step that effects a citizen’s rights without corroborative evidence (Art. 38); The right to a trial by a jury of ones peers (Art. 39); To none will we sell, to none will we deny, to none will we delay right or justice (Art. 40); and Free passage in and out of England for purposes of trade (Art. 41). Alas! The Magna Carta was, but a list. The kings and the nobles within a year or two of 1215 returned to their old ways of continual fighting amongst themselves, — and, thus, as is usual in times of war, the people had no rights. Hundreds of years were yet to pass before any real progress was to be made in respect to the rights of the people.
9 England, as a country, stepped into the very same problem that James the II had stepped into, when, in 1776, it tried, in its attempts to do away with the militia in her American colonies and to forbid the carrying of arms. This, and not “tea duties,” was the principle cause of the American Revolution.
10 Malloch v. Eastly, Wingfield v. Stratford, R. v. Hartley, and R. v. Thompson. These cases arose as a result of earlier efforts by the English government to restrict hunting: the conclusion of the law lords was that to shoot game may be against the law, but the carrying of a gun could not be.
11 “The twentieth century provides no example of a determined populace with access to small arms having been defeated by a modern army. The Russians lost in Afghanistan, the United States lost in Vietnam, and the French lost in Indo-China. In each case, it was the poorly armed populace that beat the ‘modern’ army. In China, Cuba, and Nicaragua, the established leaders, Chiang Kai-shek, Battista, and Somoza lost. Modern nations like Algeria, Angola, Ireland, Israel, Mozambique, and Zimbabwe only exist because guerrilla warfare can triumph over modern armies. While we may not approve of all the resulting governments, each of these triumphs tells a simple truth: a determined people who have the means to maintain prolonged war against a modern army can battle it to a standstill …” (Guns, Crime, and Freedom, Op. cit.)
12 Thomas Hobbes (1588-1679) took a dim view of the nature of man and defended “secular monarchy” (read dictatorship) as a necessary form of government. Unlike Locke, who believed in the noble spirit of man, Hobbes’ view of pre-social man as one who had: “No arts; no letters; no society; and which is worst of all, continual fear and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.” (Leviathan, 1651.)
13 Locke’s two principal works were written in 1690: An Essay Concerning Human Understanding and Two Treatises of Government.
Nothing I can add here. Enjoy the read.