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The Right to Bear Arms: A View from Canada

The Second Amendment: Twenty-seven ill-chosen words, three badly-placed commas, one unrivaled legislative botch-up.
 
 
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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?

Should we really expect the Supreme Court -- whose ruling will be legal and binding from sea to shining sea -- to hang its horse-hair wig on any or all of the above weight-bearing hooks, to act as the voice of reason in an increasingly gun-happy America? No, we shouldn't. America loves its guns, and a majority of the Brethren don't appear eager to spoil the fun. Wild West mentality is apparently here to stay. If a presidential candidate brags of ducking imaginary sniper fire at a Bosnian airport, let the winner dodge real bullets at Dulles.

A recent Gallup poll asked Americans if they thought that there should be a law that would ban the possession of handguns, except by the police and other authorized persons. Just under two-thirds said no. Almost two-thirds of Gallup-polled Canadians, on the other hand, did not believe that the general public should be allowed to own a gun of any sort . Gun-ownership rates north and south of the border correspond fairly closely to such opinions; while the U.S. population is ten times that of that of Canada, the number of privately-owned guns in the U.S. is twenty-five times higher. As opposed to its U.S. meaning, in Canada, "packing heat" is something most often achieved with a thermos.

Currently, the homicide rate in the U.S. is well over twice that of Canada, with the historical difference being much greater still. About half of U.S. homicides are committed with guns, while in only a third of Canadian homicides is a gun the weapon of choice.

While there appears to be a direct correlation between gun-ownership rates and the number of gun-related deaths, predictably, opponents of gun control question the validity of the statistics and the lessons to be learned from them, and they carefully arrange the numbers in such a manner as to suggest that no causal relationship exists. Figures can't lie, but liars can figure.

The National Rifle Association puts forth its bumper-sticker slogan as stating an essential truth: "Guns don't kill people -- people kill people". Wow, folks, deep thinking Based upon that faulty logic, instead of searching passengers, the airlines may as well hand out free box-cutters with every boarding pass. The undeniable fact is that people use guns to kill people. While the Canadian statistics are still alarming, I'd prefer to take my chances on this side of the border, where most folks think that shooting is something you do with a puck.

A marked difference in mayoral strategies is another interesting gun-culture comparative between Canada and the States: While Toronto's mayor seeks to close the last two loopholes in an overall ban on handguns, the mayor of New York has taken the bold step of banning the painting of handguns using designer colours. The only tangible result of New York City's 2006 ban is a line of "Bloomberg" gun-paint, with custom colours being named after the city's five boroughs. Now that's getting a bang for your bling.

While there is some temporary merit to the pro-gun-rights caveat that "if guns are outlawed, only outlaws will have guns," I'm far from convinced that having everyone armed to the teeth is an acceptable long-range alternative.

But forget another personal view on the merits of gun control; it's all been said before, it'll all be said again, and few who hold an opinion -- particularly those who are also holding a gun -- listen to opposing viewpoints anyway. Instead, consider that abysmal piece of legal draftsmanship, the Second Amendment:

The first ten amendments grafted a Bill of Rights onto the fundamental principles by which the nation would be governed; this wasn't just the shopping list for the Founding Fathers' 1789 picnic on the White House lawn. While the Second Amendment was surely deserving of some serious thought before pen hit paper, it appears that few brain cells were burned on its wording, as it neither means what it says, nor says what it means.

If the intent of the amendment was to confirm the right to own a gun, why didn't it simply state that? If that wasn't its intent, why wasn't that made clear, avoiding a future misinterpretation of colossal proportions?

Sadly, only this is quite clear about the Second Amendment: Whoever drafted it shoulda been shot. Metaphorically speaking, of course.

Tim O'Driscoll is an attorney from Toronto.

 
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