Canadians’ Common Law Right to Bear Arms

The Liberal Party, its supporters, and other progressives, leftists and kooks who support making Canada's already more than sufficient gun laws stricter, are quick to accuse those of us who disagree with them of wanting to bring American gun culture into Canada. This is rather rich, at least on the part of the Liberals, who historically have been the party of Americanization. As is so often the case with the Grits, they are relying upon the widespread ignorance that they themselves have done so much to promote among Canadians of our history, traditions, and the basic principles of our laws and governing institutions to help them sell their arguments. They are also relying upon assumptions about the American system that many Canadians hold but which are less than accurate. (1)


The Canadian and American paths diverged in the eighteenth century. In 1776 the Thirteen Colonies declared their independence from the British Empire. The French-speaking, Roman Catholic colony of Canada, which had been ceded to the British Crown by France at the end of the Seven Years War, remained loyal to the Crown that had guaranteed its language and religion, as did the colonies that became the Maritime Provinces. After the Americans won their secession in war, the members of their colonies who had remained loyal to the Crown fled persecution from the triumphant Yankees and came north to the Maritimes and this colony that bore the name Canada prior to its being applied to the Dominion formed from the Confederation of British North America in 1867. In their Declaration of Independence, the rebelling Yanks maintained that the government in London had violated their rights to "life, liberty, and the pursuit of happiness" and in subsequent war-time propaganda, they attacked the institution of the monarchy as being the source of their grievances. This was all pure propaganda. The policies they objected to in London had their origins in the elected House of Commons and hardly added up to an assault on the basic rights of the Americans.


I do not bring this up, however, to belabour the case against Revolution-era American propaganda but to make the point that the Canadian and American paths diverged by the Americans consciously choosing to break from the larger political society to which they had previously belonged, while those who would become the Canadians, equally consciously, chose to remain. The American tradition, as it developed from this point forward, diverged further from the British tradition, whereas the Canadian tradition remained close to that tradition and developed in conjunction with it. This is most evident in the governing institutions of both federations. The Americans, whose developing national self-image fused the Puritan concept of "city on a shining hill" with that of a "new Rome", built for themselves a federal republic. We, whose growing national self-image was rooted in the Loyalist heritage of honour and continuity, established a parliamentary monarchy patterned closely after the Westminster model with the same royal Head of State.


It logically follows from the above that if something in the American tradition as it developed away from the British tradition can trace its source to the British tradition then it was part of the latter tradition prior to the break and is therefore part of the Canadian heritage as well. This happens to be the case with the idea of a right to bear arms.


It has been widely thought that when Thomas Jefferson included the phrase "life, liberty, and the pursuit of happiness" in the American Declaration of Independence he was borrowing, or, rather, adapting a concept from John Locke. Locke, who writings providing secular arguments for the positions of the Puritan-founded Whig Party, largely created the philosophical framework of classical liberalism, wrote of the triad of basic rights as life, liberty and property. Much closer to the time of the American Revolution, the same triad of basic rights featured into the famous four volume Commentary on the Laws of England by Sir William Blackstone. Blackstone was the first to hold the position of Professor of Common Law at Oxford University established in the late 1750s by an endowment in the will of the jurist Charles Viner. His Commentary was published from 1765 to 1770, the last volume appearing six years prior to the American Revolution. Unlike Locke, Blackstone was a Tory, and this demonstrates that the idea of the basic rights of life, liberty, and property was firmly established in the British Common Law tradition and treated as such by both parties.


Blackstone in his Commentary further identified five auxiliary rights as being necessary in order to protect the basic three. Of the final of these auxiliary rights he says:


The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. (this and the following quotation are from Volume I of the Commentary on the Laws of England)


While the language is not the absolute language of the American Second Amendment since it includes qualifications and allows for legal limitations, having arms for defence is clearly identified as an essential right of the subjects of the Crown. Here is how he described all the auxiliary rights taken together:


But in vain would these rights [the basic and absolute rights of life, liberty, and property] be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as outworks or barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.


Blackstone was speaking about the basic and auxiliary rights of subjects of the Crown. If these were the rights of the subjects of the Crown, prior to the American rebellion, they still belonged to those who remained loyal subjects of the Crown after the Americans had broken away.


Blackstone did not just pull these rights out of thin air. In the case of the right to bear arms in their own defence this was spelled out in statute in the Bill of Rights that the Whig-dominated Parliament had passed in 1689 when it changed the reigning dynasty to ensure a Protestant succession. The wording is virtually identical to Blackstone's except that the Bill limits the right to Protestants. Here is the wording:


That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.


This was not a right that was newly minted in 1689. If anything, it was a softening of the way in which this had been viewed in previous centuries, id est, that having arms for defence was an obligation of the Crown’s subjects and not merely a right. At this point in British history a permanent force of professional soldiers was a relatively novel concept. In most previous centuries, when wars arose all able-bodied males were expected to do their duty, take up their arms, and fight for their king and country. Such a duty required that they have arms to take up. This is the militia model of national defence. It was quite common in feudal monarchies, has been used for centuries by the federal republic of the Swiss Confederation, was envisioned by the Founding Fathers of the United States for their own federal republic where it was supplanted by the permanent army model, and played a very important role in the history of our own country and the development of our own national identity of tradition.


In Canada, the militia model and permanent army models, were not historically regarded in the adversarial terms of either/or but rather the complementary terms of both/and. The reasons for this are rooted in our history. By the time the Americans broke away from the British Empire while those who became the Canadians remained loyal, the British Empire had a standing army. Since we were on this side of the Atlantic, however, sharing a continent with the newly formed breakaway republic, the militia model of defence was necessary to supplement the Imperial Army in securing us against threats from the United States, whether in the form of terrorist raids by the Fenian Brotherhood or an official invasion.


Although threats of invasion emanated from Washington DC quite frequently as the Americans unfolded their doctrine of Manifest Destiny in the decades leading up to Confederation there was only one occasion in which this invasion actually materialized and this event was perhaps the single most important event in shaping our national identity that occurred in pre-Confederation Canada. That was the war that was fought between the British Empire and the United States of America from 1812 to 1815 and is generally called after the year in which it started. At the time this war broke out, the British Empire had already been at war with Napoleonic France for nine years. The actions on the part of the British navy to which the Americans objected and made their casus belli for war in 1812 had been undertaken as part of the war effort against Napoleon and the fact that the Imperial fleet and army were occupied with fighting the Little Corporal elsewhere in the world led the Americans to believe that British North America would be an easy conquest for them. They, of course, justified their invasion to themselves as being one of “liberation.”


They learned the hard way that they were wrong on both counts. British North America was not an easy conquest, and their invasion was not welcomed as an act of “liberation.” The British government had had the foresight at the start of the Napoleonic Wars to begin enlisting Canadians into the army and organizing them into units for the purpose of the protection of British North America. As W. L. Morton put it:


The six British battalions in the country would supply the discipline. To these were added the Canadian regulars, of whom the Glengarry Light Infantry, a militia battalion of veteran Highlanders and the Voltigeurs of Lower Canada under a Canadian officer of the British Army, Colonel Charles de Salaberry, were the chief in 1812. (The Kingdom of Canada, 2nd ed., p. 204)


In addition to these, however, Major-General Isaac Brock was able to call upon the armed populace of both Upper and Lower Canada to fight as militia alongside the regular army. Some of the militia groups would be disbanded after the war, others would be incorporated into the regular armed forces. Whether as part of the regular army or the militias, English and French speaking Canadians fought alongside the British Imperial army and allied Indian tribes, and repelled the American invaders in a series of notable battles beginning with Queenston Heights in 1812, where Major-General Brock was killed, and culminating with Lundy’s Lane in Niagara Falls in 1814.


These deeds, celebrated in the second stanza of Alexander Muir’s “The Maple Leaf Forever”, written in the year of Confederation and which served as an unofficial national anthem back in the period when our national self-image was still healthy, were, until very recently, in the minds of most Canadians awarded an honour that was equal, if not greater, to that given to the brave acts of our soldiers who fought in the two World Wars. In the minds of many Canadians they are still awarded that honour. These events left an impression on the Canadian psyche that even the Liberal Party, try though it may, has heretofore been unable to erase.


Liberals and other progressives hate this history, because it reveals that the true, historical Canada is very different from the much more recent image that they have sought to impose on our country. The Loyalists of pre-Confederation British North America, the Fathers of Confederation, and the leadership of our country up to and including both World Wars, held a notion of our civic duty that was virtually the opposite of that which the Liberals prescribe to us today. The idea that it is the duty of all of Her Majesty’s loyal subjects, to participate in the defence of our community and nation, whether against crimes directed against our persons, families, and property or foreign invasion like we kind we helped repel from 1812 to 1814, is abhorrent to them. Their idea of civic duty is to passively allow ourselves to be victimized, and leave defence up to the “professionals.” Indeed, today they seem completely incapable of distinguishing between vigilantism, which is the unlawful dispensing of personal “justice”, and civic duty. Think back two and a half months to when Peter MacKay, one of the candidates in the Conservative Party’s now-suspended leadership race, was denounced by mindless, left-wing, nincompoops for a tweet that they said “promoted vigilantism.” The supposed “vigilantism’ consisted of removing the garbage that people who were likely paid by American billionaires to be eco-protestors pretending to speak for an Indian tribe in British Columbia, had placed upon a railroad in Alberta.


Our right to bear arms as Canadians is nowhere mentioned in the Charter of 1982, but is part of our Common Law heritage. For almost forty years the Liberal Party has tried to make us forget that the Common Law and not the Charter is the source of our rights and freedoms, just as they want us to forget our entire Loyalist history, tradition, and heritage, the older sense of civic duty evidenced by the actions of the Canadian militia in the War of 1812, and that Queen-in-Parliament is the sovereign authority in our country and not Prime Minister-in-Cabinet. Our Common Law right to bear arms has never been an absolute right, although until well into the twentieth century, both here and in the United Kingdom, guns were as easily obtainable as anywhere in the United States. The Liberals’ greatest fear is that we will remember all of these things.


That our government and that of the United Kingdom seem to have forgotten the right to bear arms except for the “such as are allowed by law” part is most regrettable. Gun legislation that is responsible and reasonable, such as that which requires that those purchasing guns show that they have been trained in the responsible use of firearms, is one thing. The kind of gun control the Liberal Party has been pushing on us since the Chretien years, in which gun related atrocities in big cities are used as an excuse for cracking down on law-abiding, mostly rural, gun owners is another thing altogether. The former is compatible with the right contained in the Common Law, spelled out in the Bill of Rights of 1689, and elaborated upon by Blackwell. The latter is not.


(1) The assumption that the Second Amendment of the American Constitution makes gun rights absolute in the United States is what I have in mind here. Canadians, whether they think it a good or a bad thing, tend to borrow this assumption from Americans who interpret their Second Amendment this way. While telling the Americans what to think about the interpretation of their own Constitution is hardly any business of mine, I will make the following observation. The Amendment is worded in absolute language “the right…shall not be infringed” but is part of a Bill of Rights that was the Jeffersonian or Anti-federalist contribution to the American Constitution. That Bill, from the First to the Tenth Amendment, is as much about keeping the government of the federal republic that was established in 1789 from interfering in the affairs of its member states, as it is about protecting individual rights, perhaps even more so. In other words, as its framers understood it, it prohibited only the American federal government from making laws that infringe upon gun ownership, not the state governments. Of course, all of the intentions of those who drafted the Bill of Rights were thwarted by the triumphant side in the American internecine war of 1861-1865.


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