Understanding the History of Gun Laws in Canada and the U.S.
August 29, 2023
Conversations about gun control are most prominent in the aftermath of mass shootings or tragic killings, often saturating media headlines for a time. Understandably, the moral panic, hysteria, and proximity (socially and geographically) are what act as the driving forces. In these conversations we continually find ourselves caught in this feedback loop where we exhaustively dispute the harm principles and consequences of guns. We then use these arguments as justifications in support of, or against, further gun control measures.
When all is said and done, I find myself wondering if anything has changed. I find myself slowly disconnecting from the sick reality of what has happened—each time wanting to engage less in these conversations because it merely panders to disingenuous engagements in the topic of convenience that many can’t relate to. All the while, families that lost loved ones due to violent crime are left with massive holes that can never be filled.
The unfortunate reality here is that it will happen again. Part of this is owed to the fact that even despite what could be our most restrictive efforts, there are a number of variables that stretch beyond the control of our governments. However, to me, the main reason is that we opt for a reactive position that temporarily deploys increased amounts of police without meaningful policy changes that can mitigate mass shootings and gun violence.
Understanding that there are gaps in current gun control policy, what I seek to do in this piece is unpack the origins of gun control in the U.S. and Canada to understand how we got here.
Origins of Gun Control in the U.S.
I consider it universally true that the fundamental role and purpose of the government is to establish and maintain order. This is particularly true with the emergence of new inventions that have the potential to cause harm or create moral panic in the absence of relevant, holistic, and anticipatory legislation. Writ large, this was the case for firearms given that the creation of guns and the realization of their destructive power shed light on the need for restrictions. This was because guns are unique. They were created for destruction, to kill animals and people, and damage objects. Certainly, other objects in society can be used to cause destruction; however, the bulk of these objects weren’t created explicitly for the purpose of destruction.
With this understanding, the challenge that exists in democratic societies is balancing utilitarianism in the use of restrictive gun policies without infringing on individual freedoms. This is the challenge that Canada, but particularly the U.S., have faced for much their history with guns.
In the U.S., most gun related discussions don’t actually begin with gun control; they begin with gun rights. The fundamental difference here is that gun control laws are focused on restricting the sales, use, and storage of firearms. Gun rights are not restrictions, as they provide individuals with the ability and freedom to own a firearm (should they decide to do so), and cannot be abridged nor curtailed. In the U.S., this right is the Second Amendment in the Constitution which was ratified on December 15, 1791. It states, “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.” In the most direct way, the most prominent interpretation of the Second Amendment is that American citizens have the right to own firearms, and the government shouldn’t violate this right. Thus it protects law-abiding gun owners.
As I addressed earlier in this piece in distinguishing between gun rights and gun control laws, there’s nothing restrictive about the scope of the Second Amendment, making it a right. It doesn’t specify any controls for where and when guns can be used and by what people. Nor does it provide consequences for immoral or illegal use. The Second Amendment is intentionally vague, allowing for increased discretionary powers of citizens. As such, should it exist on its own, the Second Amendment merely prescribes anyone to own a gun, though it arguably doesn’t apply to non-American citizens. This means that at the time it was created, Black and indigenous people weren’t able to own guns as they weren’t considered American citizens under the scope of the law.
Inevitably, the lack of restrictions causes problems among communities. Without effective controls, the consequences are potential danger and the undermining of the freedoms and rights of people given that there aren’t publicly and institutionally recognized ways to penalize abuses of this right. It further causes confusion as to who can buy, sell, and own guns.
In 1870, nearly 80 years after the ratification of the Second Amendment, these same problems provoked a legal case where three defendants were charged with 32 counts of depriving Black people of their constitutional rights to possess firearms. It was here when law makers and gatekeepers began to recognize the need for well-founded restrictions and guidelines. In the case the Court established two principles: 1) laws can be established to regulate or restrict the carrying of weapons (which includes firearms); and 2) the Second Amendment only pertained to federal power, not state power. This case is important as legally recognized gun restrictions were nonexistent, and state power was realized. Restrictions through judicial decision making continued in 1886 when the Court ruled that people can’t organize with others as a self-proclaimed and armed militia against the state. So, after 1886, what existed for gun control was loose frameworks that gave states the power to create restrictions and prevented citizens from organizing armed militias against the state. Still, what was absent was specifications around who can use guns and in what instances, and what the consequences for failure to comply are.
This massive gap in restrictions began to create pressure for governments in the U.S. In 1911, this led to the first modern form of gun regulation in the state of New York, being the Sullivan Act. It was created in reaction to an attempt to murder then mayor, William Gaynor. The Sullivan Act required New Yorkers to have gun licenses in order to own concealed firearms. The penalty for possession without a license was a misdemeanor and a felony for carrying it in public.
This helped to set the stage for national laws to govern the ownership and use of firearms. It also helped to set the stage for restrictions on the sale of firearms, which were accomplished by the National Firearms Act of 1934 and the Federal Firearms Act of 1938. They required the registration of certain firearms and restricted the sale and ownership of high-risk weapons such as machine guns. They also required federal licenses for firearm manufacturers and dealers, while prohibiting certain people from buying firearms.
On the consumer side, further restrictions were brought about with the deaths of public figures which sparked outrage. The assassinations of both Martin Luther King Jr., and Robert F. Kennedy in 1968 garnered strong a political response, pushing the passage of the federal Gun Control Act of 1968. The law expanded restrictions, ended mail orders of firearms and ammunition, and banned the sale of guns to minors, drug users, felons, fugitives, dishonorably changed soldiers, and those with mental illness. Although there was a period of relaxation in the 80s, led by the National Rifle Association, the 90s was characterized by state enacted legislation that did a number of things, including banning the possession and sale of assault rifles, preventing those under the age of 18 from gun possession, and holding parents criminally liable for gun related actions of their children. Expansions were further made in 1998 when the National Instant Criminal Background Check System was instituted. It was a database used to verify the eligibility of a purchaser.
Taken together, these laws consistently straddled the lines of stringency and relaxation on the state and federal level, making it easy for guns to cross not only domestic borders, but also national borders into Canada.
Gun Control in Canada
Each decade for over a century, Canada made adjustments to gun ownership laws and penalties. But gun politics in Canada didn’t begin with gun rights, it began with gun restrictions, as unlike the U.S. Constitution, the Canadian Constitution doesn’t offer any protection for gun owners. The foundations for gun control in Canada can be traced to 1892 when the first Criminal Code was codified. At the time it required people to have a permit to carry a pistol, known as a certificate of exemption, unless they had a reasonable fear of assault or injury. People who violated this were liable to face a six-month term in jail for carrying a gun without cause. Prior to 1892, a reasonable fear of assault or damage to personal property met the threshold for being able to carry a gun.
When the Criminal Code entered into force, vendors could no longer sell guns to people under the age of 16. When they did issue a sale, they had to keep a record of the purchaser’s name, date of the sale, and information that could identify the gun. But this threshold began to change in 1913. To carry a gun outside of one’s home they had to have a permit. In the scenario that they carried one without a permit, they could have faced potential jail time. By 1919 an amendment was made to the Criminal Code which expanded the scope to not just carrying weapons outside of the home, but any form of possession. So, to own a gun, people were required to have a permit from a magistrate, the RCMP, or a chief of police. These permits were valid for one year within the province it was issued in; however, for British citizens, this law only applied to newly acquired guns.
Similar to the U.S., Canada did a delicate dance between stringent and relaxed gun policies. Up until 1921, the government continually implemented restrictions. In 1921, this changed when an amendment repealed the requirement that everyone who owned a firearm needed a permit. Instead, only non-Canadians needed a permit. This was contrasted in 1932 when a character test was instituted. Prior to this period you only needed to be of “discretion and good character” to own a gun. The change was that individuals had to declare why they wanted a gun. Valid reasons to obtain a permit were protecting life or property or intending to use it at an approved shooting club. At this time the minimum age for having a gun lowered from 16 to 12, and jail sentences became longer (up to five years) for having a concealed weapon outside of the home and having a gun while committing a crime.
In 1950, changes to the Criminal Code allowed certificates to be valid indefinitely. The following year a centralized registry system for guns was created under the Commissioner of the RCMP, requiring people to register automatic weapons (and the automatic weapons which had to have serial numbers. By 1968 the minimum age to get a minor’s permit was once again 16. Nearly a decade later in 1978 the government passed Bill C-51 which instituted a number of certificates and permits for purchasers and businesses. It also made a number of changes which did the following: prohibited fully automatic weapons unless they were registered as restricted weapons before January 1, 1978; removing the ability to carry a restricted weapon to protect property; and, the government reintroduced mandatory minimum sentences, where a 1-to-14-year consecutive sentence was implemented for the actual use (not mere possession) of a firearm to commit an indictable offence.
During the 90’s a series of bills passed which imposed mandatory waiting periods for certificates, required safety training, and required detailed background checks among other things. The Canadian government also relied on harsh prison sentences as a deterrence. An interesting change during the 2000s was the requirement of a valid driver’s license to possess and acquire a gun. However, restrictive measures continued throughout the decade as limits were placed on the cartridge magazines and ammunition.
Final Takeaways
This history of gun control legislation in both Canada and the U.S. is important because it helps us to understand the policy gaps and leverage points both countries have used for regulation. From this context we can see a few things. First, Canada has employed more stringent and coercive methods, notably relying on penalization as a method of deterrence for illegal gun ownership or criminal activity using a gun. They have also used a combination of mandatory permits and licenses to create distinct classes of people who qualify for gun ownership. Certainly this works as a valid baseline by monitoring and controlling the access to legal firearms in Canada. However, this inadequately addresses the illegal market and flow of firearms into Canada, and fails to consider why there is an illegal market in the first place.
In the U.S. we see that they have used overarching frameworks that allow the states and municipalities to determine the level of gun control legislation they desire. Of course penalization is a method used for deterrence—imposing severer penalties than Canada. However, the distributed powers of the federal and state governments in cohesion with lobbying efforts from the NRA has established an appreciative gun culture that vilifies extensive government controls for legal gun ownership. In some cases, this culture has made it easy to obtain guns. This contributes to the ease in the flow guns across geographical boundaries and state lines.
Overall what we see is the use of two different approaches. And although there are greater challenges in the U.S. with guns, Canada continues to struggle as well. Ultimately, this has led to a debate, arguing if restrictive or relaxed gun controls are better. At the very least we can say that any effective form of gun control, particularly in Canada, requires coordinated efforts between Canada and the U.S. But the reality is the level of this coordination will likely be weak. In the next few chapters we will unpack the reasons for illegal and legal gun ownership. The hope is to understand why a balanced approach that respects legal gun ownership is required.