Court of Appeal: “no constitutional right to bear arms”

A political party (Kiwi Party) has failed in a legal claim that the Magna Cart and Treaty of Waitangi provide for a  constitutional right to bear arms.

Immediately following the Christchurch mosque massacre in March 2019 New Zealand firearms laws were tightened.

The Kiwi Party was formed and tried to oppose restrictions of ownership of semi-automatic weapons with high capacity magazines through the courts. The Crown applied to the High Court to have their 12 causes of action to be struck out and succeeded on claims 2-12.

The Kiwi Party took it to the Court of Appeal and amongst other things “argued that New Zealanders need access to semi-automatic weapons in order to match police fire power should the police resort to unlawful use of firearms against New Zealand citizens”

The Court of found these claims “were untenable and cannot possibly succeed”.

The Arms (Military Style Semi-automatic Firearms) Order 2019 (theOrder), was passed by the Executive on 21 March 2019 pursuant to s 74A(c) of the Arms Act 1983 (the Act) and remained in place for 21 days

The Arms (Prohibited Firearms, Magazines, and Parts) Amendment Act 2019 (the Amendment Act) took effect from 12 April 2019.

In addition to revoking the Order, the Amendment Act imposed restrictions on licensed arms dealers, amended the endorsement provisions under the Act and made it an offence to sell, supply or possess any prohibited firearms, magazines or gun parts, including semi-automatic firearms. The Amendment Act put in place a Government buy-back arrangement for the prohibited firearms, magazines and gun parts.

The legislature’s response to the events of 15 March 2019 was not, however, universally approved. The Kiwi Party was formed by a group of licensed firearms holders with the aim of challenging the lawfulness of the Order and Amendment Act.

Statement of Claim

Twelve causes of action are pleaded in the statement of claim filed in the High Court by the Kiwi Party. Those causes of action seek declarations and orders for, amongst other pronouncements, that the Amendment Act has “no force of law until validated by a subsequent general election or by referendum”.

A fundamental part of their claim was:

The Amendment Act breaches the Treaty of Waitangi, rights to private property, the Bill of Rights 1688; and is “unconstitutional” because it contravenes the “right to bear arms [which] is coincident with the balance of powers in English society”.

Does New Zealand recognise a constitutional right to bear arms?

Underpinning almost all aspects of the Kiwi Party’s case is the claim that New Zealand citizens have a constitutional right to bear arms and in particular, weapons, magazines and gun parts that have been prohibited by the Amendment Act.

This so-called constitutional right is said to be derived from ancient custom, which evolved into a common law right and was affirmed by Magna Carta, the Bill of Rights 1688 and the Treaty of Waitangi. In his supplementary submissions filed on 20 March Mr Minchin, counsel for the Kiwi Party, maintained ‘the right to bear arms is the practical application of the legal principles that ‘no power is unfettered’ and is the mark of a free society”.

Mr Minchin, submitted that New Zealanders need to be able to exercise their “constitutional right” to access semi-automatic weapons and large capacity magazines in order to be able to effectively defend themselves against any unlawful use of arms by agents of the Crown or Executive.

In particular, he argued that New Zealanders need access to semi-automatic weapons in order to match police fire power should the police resort to unlawful use of firearms against New Zealand citizens.

Mr Minchin acknowledged the “ugliness” of the proposition he was advancing.

But:

An examination of the constitutional instruments relied upon by Mr Minchin quickly exposes the fallacy of his argument that New Zealanders have a constitutional right to bear arms.

The obvious lacuna in this aspect of the case advanced for the Kiwi Party is that it assumes British subjects had an unbridled right to bear arms. As we have already noted, there was no such right. Any ability for a citizen to bear arms has, at least since 1689, been able to be regulated by laws passed by Parliament.

The court points out that the UK, Canada and Australia all have significant firearms regulations and limitations.

It is striking that the so-called right to bear arms is not referred to in any international human rights instrument, such as the International Covenant on Civil and Political Rights or the European Convention on Human Rights. Of the 190 countries that have a written constitution, only the constitutions of Guatemala, Mexico and the United States refer to a right to bear arms.

The relevant parts of the constitutions of Guatemala and Mexico are modelled on the Second Amendment of the United States Constitution but expressly provide for limits according to law. Thus, it can be fairly said that the right to bear arms is an example of American constitutional exceptionalism.

Even in the United States, the ability of a citizen to possess and use firearms may be subject to legislative control. Thus, assault weapons have been banned by seven State legislatures, including those in California and New York.

The Court’s conclusions:

Our examination of the arguments advanced by Mr Minchin leads to the following conclusions:

(a) The so-called right to bear arms is not supported by any constitutional instruments that apply in New Zealand.

(b) In this country, as in almost all countries, a citizen’s ability to possess, own and use firearms is regulated by legislation.

(c) There are only three countries which have some form of constitutional right to bear arms.

(d) There is no constitutional right to bear arms in New Zealand let alone the arms that are prohibited by the Amendment Act.

Conclusion

The second to twelfth causes of action are untenable and cannot possibly succeed. The High Court therefore correctly struck out those causes of action.

The appeal is dismissed.

Judgment: THE KIWI PARTY INC v ATTORNEY-GENERAL [2020] NZCA 80 [24 March 2020]