The Right to Bear Arms: A View from Canada

The Second Amendment to the U.S. Constitution: Twenty-seven ill-chosen words, three badly-placed commas, one unrivaled legislative botch-up.

Being a Toronto-area lawyer, I certainly can't speak for the average Canadian on the subject of the Second Amendment; few of my countrymen, naturally, would have a clue as to its contents or that of its twenty-six siblings. I'd expect, though, that those of the informed few who read of a pending U.S. Supreme Court decision reacted as I did -- by taking off their mythical toques and scratching their heads.

In late June, the Supreme Court is expected to hand down its decision in District of Columbia vs. Heller. At issue in the case is D.C.'s handgun ban, the strictest of its kind in America. Struck down by the Appeals Court last year as violating the Second Amendment, the ban will now fly or die based upon the Supreme Court's interpretation and application of these twenty-seven words and three commas: "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."

Opponents in the gun-control debate ascribe very different interpretations to the amendment. To gun-control advocates, it is nothing more than the protection of a state's right to maintain a militia; to the pro-gun gang, it is nothing less than confirmation of an individual's constitutional right to own a gun.

Things certainly are different above the forty-ninth parallel. While we admittedly have our fair share of gun-control issues and controversy in Canada, at least our law-makers aren't faced with an arguable gun-ownership right being inscribed in our constitution in all-but-indelible ink.

Canada's current gun-control legislation -- which the Supreme Court of Canada upheld in 2000 -- contains harsh penalties for crimes involving firearms, and requires licenses to acquire and possess them. All guns must be registered, and handguns can only be owned by police, security officers, and approved target shooters and collectors. As you read this, the mayor of Toronto is waging an internet campaign, entreating Canadians coast-to-coast to sign an on-line petition for an extension of the ban to include the latter two groups.

From time to time north of the border, we, too, hear it argued that the right to bear arms exists, with its supposed provenance being traced all the way back to the Magna Carta of 1215. Fortunately, however, such "right" isn't badly-but-expressly stated in our constitution; its genealogy is fuzzy at best; and, above all, our Supreme Court isn't buying it.

Back stateside, however, the Supremes seem poised to sing a different tune. The Second Amendment was voted on in 1789 and ratified two years later, but not once since then has the Supreme Court used it to strike down a gun-control law. Incredibly, if the questions and comments from the Court during the D.C. vs. Heller hearing last March are any tip-off, that is about to change: The Court appears ready, by a five-to-four margin, to rule that the amendment gives individuals the right to own a gun.

Yes, my toque is off and I'm scratching furiously.

Isn't the amendment's thirteen-word preamble a clear-cut indication of a militia-related purpose?

Shouldn't the social context in which it was passed -- a fledgling nation, having spit the bit of imperial oppression and wary of replacement tyranny -- be examined in interpreting its meaning?

Is it not crucially significant that "to bear arms" is a centuries-old phrase referring to an organized militia, dating back to the medieval writing of 'Beowulf,' and pre-dating the invention of firearms by hundreds of years?

Needn't notice be taken that firearms were already blazing away in 1789, thus the "fire" prefix -- if intended to apply to "arms" -- could have easily been inserted?