Posted: March 06, 2010, 10:00 AM by NP Editor
The minute anyone talks or writes about free speech, some twit is sure to pop up and say that there’s no absolute freedom of speech. They usually can’t resist adding that no one is free to shout “Fire!” in a crowded movie theatre.
They’re quite right. The only thing wrong with those who keep insisting there are no absolutes is they do it to restrict some particulars that irk them.
Everyone knows free speech isn’t “absolute.” If it were, it would be legal to defame people, counsel murder, or impersonate a police officer. No one disputes that being free to use hand gestures doesn’t entitle anyone to signal a truck to back over a toddler. Our freedom to gesticulate isn’t “absolute.” It’s enough, though, to give censors the finger.
Now that I got this off my chest, let me turn to a different topic. Well — maybe not entirely different. It is another facet of the complex syndrome that prompted Charles Dickens to have Mr. Bumble call the law an “ass.”
This week, Canada’s gun laws confirmed Mr. Bumble’s assessment (pun intended) by sending firearms dealer Bruce Montague to prison, after the Ontario Court of Appeal turned down his plea for relief. As the case was argued, the court pretty much had to, though it probably would have turned it down anyway. Some might call a system that incarcerates “a decent, hard working, otherwise law-abiding citizen” — as the trial judge who sentenced Montague described him — Orwellian or Kafkaesque. I prefer Dickensian, because naming laws more sinister than Canada’s gun registry is easy, but naming one more asinine is hard.
With the imposition of Bill C-68 in 1995, for no discernible reason except urban angst and anti-masculine paranoia, the government tied the ownership and acquisition of all firearms to a bureaucratic rigmarole. It’s a procedure as intrusive, humiliating, and astronomically expensive as it’s useless — that is, useless for any purpose other than reminding citizens that in Canada the state can do anything.
At Montague’s trial, the judge himself described the law as “convoluted and dangerous to honest citizens.” Perhaps thinking that Canada has no scofflaws growing wild, our lawmakers set out to cultivate some by criminalizing the hitherto lawful conduct of owning and acquiring long guns. Before long, a backlash of newly minted “criminals” assembled in outposts of resistance such as the Canadian Unregistered Firearm Owners Association. They were upstanding, law-and-order citizens, radicalized by what Shakespeare called “the insolence of office,” preaching and occasionally practicing civil disobedience.
The state’s disrespected minions plotted administrative vengeance, as is both their duty and sport. Montague seemed like a straggler; vulnerable because of his sizable arsenal — described by the Court of Appeal as “sufficient for a small-scale insurrection.” The Crown threw everything except the kitchen sink at him and his wife, Donna — and I’m not so sure they skipped the kitchen sink. The prosecution laid 53 charges. After a four-month trial, the jury acquitted of 27 and convicted of 26. If it had been basketball, Montague would have won. Since it was a criminal trial, he lost.
For mistakenly believing he lived in a free country — i.e., he had a common law-derived, constitutionally protected right to his own property without having to answer the state’s impertinent, humiliating questions about his personal life — the authorities proposed to seize Montague’s home, business, firearms, ban him from his livelihood as a gun dealer and manufacturer and send him to jail for 18 months.
Civil disobedience isn’t for sissies. Don’t do it at home — except where else would you do it?
On appeal, Montague and his wife wanted Justices Moldaver, MacPherson and Cronk to agree with them “that they have a constitutional right to possess arms in their home for self-defence, free from government interference or regulation.” It was a good request for martyrdom; a lousy one for acquittal. Predictably, the appeal court justices didn’t agree. They quoted the Supreme Court that “Canadians, unlike Americans, do not have a constitutional right to bear arms.”
The justices couldn’t resist adding that, even assuming the Charter did protect people’s right to possess and use firearms, “that right, like all other fundamental rights and freedoms, is not absolute.”
Déjà vu all over again, as Yogi Berra would say.
The Montagues were in the wrong place. A few hundred miles south, the U.S. Supreme Court was pondering this week whether to extend Second Amendment rights that the justices confirmed for gun owners in Washington, D.C. two years ago, to gun owners throughout the United States. A man named Otis McDonald asked the Court to let him keep a gun for his protection in Chicago, whether municipal authorities liked it or not.
The justices reserved. Come June, chances are a majority will say yes.
Two nations, sufficiently similar in culture, history, religion, language and basic values for their citizens to be mistaken for one another, with fundamentally different answers to essentially the same question. Why? My guess is because our neighbours drafted America’s 1791 Amendments in freedom’s sunrise. We drafted Canada’s 1982 Charter in freedom’s twilight. Or a few minutes later.
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