We are frequently told that having guns in New Zealand is a privilege. I contend that it is in fact a right. Let me tell you why I so contend.
It is a timeless universal human right to be able to possess the means of ensuring one's survival, be that in terms of hunting food, or defending oneself, and one's home and family, or protecting the society or nation of which one is a part.
Reference to the possession of arms being a privilege rather than a right is a common refrain in New Zealand, and in some other jurisdictions. It is a claim that is not often challenged publicly, and I believe this is because everyone knows that as soon as this issue is actually addressed head-on, a rather large can of worms will be opened, and nobody has much of an appetite for the discussion that will inevitably ensue.
Every living thing, from the lowliest bacteria to the mightiest apex predator, is possessed of an inherent right to act in self-preservation. I challenge anyone at all to dispute that, and provide grounds for so doing. At the risk of confounding the issue through choice of terminology, I will say that this is a truth I hold to be self-evident. (A partial quote from Thomas Jefferson, author of the US Declaration of Independence, reads: “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.”)
And the right to self-preservation does, and by definition must, include the right to the means of self-preservation, because the denial of the means is also, by unavoidable extension, the denial of the right.
The English Bill of Rights 1688 is enshrined in New Zealand Statute Law. It is current. It is valid. It may be found here:
The BOR is included in the body of New Zealand statute because adherence to it is a requirement imposed upon the Crown by Parliament. Both the New Zealand Parliament and the New Zealand Crown, now a legally separate entity from the British Crown, have inherited from their British forebears the responsibility to ensure that the rights and freedoms of citizens outlined within it are maintained. It is the foundation for lawful authority in this country.
The seventh tenet of the English Bill of Rights 1688 states:
Subjects’ arms
That the subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law:
The reference to Protestants is not intended to deny Catholics or anyone else their rights, but rather because Church and State are officially linked in Britain, and at the time of writing, the BOR was an affirmation of the Rights of Englishmen, that being anyone under the rule of the English Crown, and was not intended to affirm the rights of anyone else. Since the Church of England had been created by Henry VIII’s unilateral rejection of the Papal authority of Rome, all his (and those of subsequent Monarchs) subjects were automatically Protestant. The practice of other religions may have been tolerated, but that did not mean that their adherents were any less subject to the rule of the King and his Church, nor were they denied the rights or privileges, or exempted from the duties, of other subjects.
I will touch on the US 2nd Amendment later. It is more of a distraction here than a help, given that this is about guns, and many people have a propensity for lumping anyone who advocates on behalf of law-abiding New Zealand firearms owners, in with the Americans.
Neither the English Bill of Rights nor the US Constitution make reference to the right to have arms for the purpose of granting that right; the right exists, as do all elements of the Common Law, and it does not need to be granted, nor may it be denied, other than by the unlawful usurpation of the Common Law. Rather, it is referenced in order to recognise and acknowledge that right, and to assert and affirm it so that it may not be forgotten or denied by those who make the rules and those who live under them, now and in the future.
The wording of the English Bill of Rights makes it in some ways a more elegant instrument than the US Constitution, because it states that the arms the citizens may have, may be "suitable to their conditions", acknowledging that those conditions may change with time and circumstance. By definition, arms necessary for one's defence must be capable of countering actual threats to one's safety, and as the means of threat evolve, so must the arms available to the citizens be able to evolve.
In the day of its writing, the Bill would have contemplated swords, pikes, bows, muskets, and similar arms. Today it encompasses modern firearms. In the future it will encompass such technology as man is able to develop as time goes on. The conditions may change but the right does not.
The BOR also states that the having of arms shall be "as allowed by law”. The law referenced here is the Common Law, and the specific affirmation is to ensure that Statute law shall also allow it (as it lawfully must, being that the right of self-preservation and by extension to the means thereof is a Common Law right), but also that within the Statute law there may be provisions to prevent breaches of the Statute law, providing the Statute law with the ability to deny the having of arms to those who threaten either form of the law, so long as that law is lawful.
That may sound convoluted, but it means that the likes of criminals and the mentally unsound may be denied the having of arms, but also that no statute law that unlawfully denies rights under the Common Law, is a lawful law.
This latter consideration is precisely how the granting of firearms licences operates in New Zealand today - a person demonstrating that they have the ability to safely have arms, SHALL be issued with a licence (and yes, that is the wording in the Arms Act), unless there is some lawful reason why they should not.
This is the only matter in which the concept of 'privilege' may be considered, with regards to the having of arms in New Zealand, but even then, such a position is back to front.
The granting of a licence is not a privilege to be earned. It is a right that exists, and thus does not require to be earned, but that may be denied if there is sufficient lawful reason to do so.
The 2013 Arms Code, crafted in conjunction with the Mountain Safety Council and published by the Police, has this to say about firearms licencing and self-defence:
Important note: Firearms for self defence
Self-defence is not a valid reason to possess firearms. The
law does not permit the possession of firearms ‘in anticipation’
that a firearm may need to be used in self-defence.
This statement is false. The law says no such thing.
Statute law in New Zealand neither permits nor precludes self-defence as a valid reason to possess firearms, and neither should it, because the right to do so is already specifically acknowledged by the Bill of Rights 1688.
In fact the law says nothing at all about the matter. Neither the Arms Act 1983, nor the Policing Act 2008, nor the Crimes Act 1961, make any mention of firearms with regards to self-defence. The use of the word ‘anticipation’ does not occur anywhere in any of the three Acts. The Arms Code puts it in quotation marks, as if to indicate that it has some kind of authority that it does not in fact possess – but the word itself is completely absent from legislation.
The law is entirely silent on this matter and it is untruthful of Police to claim otherwise in their publishing of the Arms Code.
The word ‘firearms’ does not appear in the Policing Act either.
It is plainly and simply neither lawful nor legal for Police to make the arbitrary determination proclaimed in the Arms Code as above, or to pretend that it is supported by the law, or to attempt to enforce it. These actions are ultra vires on the part of Police.
Section 24 of the Arms Act 1983 detailing the issuing of firearms licences may be found here:
24 Issue of firearms licence
(1)
Subject to subsection (2), a firearms licence shall be issued if the member of the Police to whom the application is made is satisfied that the applicant—
(a)
is of or over the age of 16 years; and
(b)
is a fit and proper person to be in possession of a firearm or airgun.
Fit and proper means you’re not a criminal or a nutbar. It means that the Police Officer considering your application is satisfied that you don’t have nefarious intent, and that you can be trusted not to be reckless.
No sane person wants criminals or nutbars running around with guns. But at the same time, there is no lawful mechanism by which people who are not criminals or nutbars may be denied the right to own firearms, and to own them for the purposes of self-defence.
‘Fit and proper’ also allows for the objective assessment of people who have criminal convictions. A person may, for example, be a convicted fraudster. Legally that person is a criminal, but that might not necessarily make them a person who should be considered a risk as far as the ownership of firearms is concerned.
Now please note – this doesn’t mean that if you have a gun, you necessarily have the legal right to use it in self defence as a first choice option. We are reasonable people in New Zealand. We believe in the principle of reasonable force, and indeed the self-defence provisions of the Crimes Act 1961 section 48 do explicitly state this.
You can’t just go shooting people first and asking questions second because you happen to have a licence and a gun and you think you might have a claim that they were threatening you, if on examination, any reasonable person would say that you were in fact going miles over the top.
48 Self-defence and defence of another
Every one is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.
In reality these circumstances very seldom come about. Given the very high rate of firearms ownership in New Zealand, and the also very high rate of person-on-person violence, the number of occasions when someone has to employ lethal force involving a firearm, in their own defence, is statistically almost nil. And in almost every case where this does happen, the Courts eventually acquit the person who has acted in self-defence. They are usually left with an eye-wateringly massive legal bill for their trouble, but that is a separate matter. The point here is that in New Zealand, the judicial outcome falls, as a general rule, on the side of reasonableness.
Three times I have been interviewed by Police in the re-issuing of my Firearms Licence, and three times I have been asked “would you use a firearm in self-defence?” and three times I have answered, honestly, “Yes, but only as a last resort”, because that is the truth; and three times I have subsequently been issued with my renewed licence.
And yes I have had threats; having spent six years as a not-always-completely-uncontroversial MP, I guess that comes with the territory. But I have never ever had cause to even consider unlocking the gun cabinet because of any of them, let alone kill anybody.
So yes; in fact, and indeed in law in New Zealand, both in current Statute, and in the ancient affirmation of Rights, it is a Right to possess firearms for self-defence. That this Right has not been publicly debated let alone declared, and that in fact is it more often repudiated than not, does not alter that reality. Rather I believe it reflects a near-universal reluctance on both sides of the current discussion to confront the issue. Everyone knows that doing so will lead to lots of unpleasantness.
The first and sadly predictable response, by Government, to the initiation of such a debate, would be to remove the BOR from the New Zealand Statutes. But here’s the thing – a Right disclaimed by Statute doesn’t just go away. It is intrinsic. It may be denied but it is not invalidated. Rights are like the Sun, the Moon, and the stars; like the tides and the seasons. They exist and are above and beyond the reach of the laws of man. The Common Law is not law made by Man. It is Law that exists.
I will spell it out a little more bluntly: if a New Zealand Government were to pass legislation denying New Zealand citizens any of their fundamental rights, then such legislation would not be lawful. The Rights concerned would still exist, and a Government acting in such a way would be in breach of the law.
Common Law is perhaps the most crucially important element in the foundation of the Constitutional arrangements of those jurisdictions that recognise and embrace it. Common Law is not created by authorities; it is accepted that it exists. Rather, appropriately skilled and learned Judges are tasked with discovering it. Precedent is one tool used by Judges to refine our better understanding of it.
Our own New Zealand Bill of Rights Act 1990 confirms this;
2 Rights affirmed
The rights and freedoms contained in this Bill of Rights are affirmed.
Rights are affirmed rather than granted, and the existence of Rights not specified is acknowledged.
28 Other rights and freedoms not affected
An existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part.
Responsibility for the protection of Rights may be delegated by let, but the act of doing so does not extinguish ownership of the Right. It is by this process that we allow the Police to enforce laws – however, the exercise of this let by the Police occurs in parallel with our ownership of our Rights. It is not possible for Rights to be signed away.
For clarity, a lawful law is one crafted within the constraints of the rights of the People. Parliament is of course Sovereign, and can create whatever laws it chooses - but it must be remembered, within that, that the powers of the Sovereign are not unlimited. Sovereign Power is no longer the divine right of Kings to rule alone under God, but rather is contained within, and constrained by, such recognised principles of the Common Law as are described within the terms of the Magna Carta.
So a law passed by a Sovereign Parliament, in any of the Queen’s Realms, which breaches the terms of the Magna Carta, is not a lawful law. Law abiding people are not bound by such a law, and indeed it is their duty as citizens to oppose it.
Likewise, the Second Amendment to the Constitution of the United States exists, in the arrangements of their jurisdiction, for the sole and express purpose of reminding both the citizens, and the Government of the US, of the right of citizens to do precisely that, should circumstances ever require it. Americans are not subjects of the Queen, as we know, but their Constitution is founded on exactly the same principles as those that shaped the Magna Carta.
The wording of the Second Amendment is not in any way ambiguous.
"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."
Reference to Militia is not included for the purposes of in any way granting or authorising the right of Americans to bear arms, but for the purposes of affirming their ability to oppose the Federal Government should that become necessary. The existence of the Right itself is simply stated, in the words “the right of the people to keep and bear Arms”.
I will repeat the point; neither the English Bill of Rights nor the United States Constitution act in any way as instruments by which their respective citizens are granted the right to have arms. Both do nothing other than to acknowledge and affirm the fundamental existence of that right.
Good Governance and good policing are always undertaken by way of let, rather than by way of imposition. When governance or policing is made by way of enforcement against the intrinsic rights or expressed wishes of the People, it is bad governance or bad policing.
This is where we come to a point of potential conflict. When Governments seek to impose on The People, laws which are not lawful under the Common Law, and further, attempt to enforce said laws through the use of force, history provides us with plenty of examples in which The People respond with force in kind.
This is where uniforms meet pitchforks.
Such confrontations generally end badly for the uniforms.
This happened in England in 1642 and ran until 1651. It happened in America in 1765 and ran until 1783. It happened in France in 1789 and again in 1848, the latter event being accompanied by similar uprisings in Denmark, Austria, Hungary, and several States in Italy and Germany, and to a lesser extent in Sweden, Switzerland, Poland, Romania, Belgium, Ireland, and Spain.
It has happened with increasing frequency the world over through all of the 20th century. It is happening again in France as we speak.
Uprisings, revolutions, wars for independence; such struggles are almost the natural state of being for human societies. Wikipedia has a quite a soberingly long list of them:
The common theme, in every last one of them, is the attempted subjection of Peoples, to laws that are unreasonable, by Authorities who do so, purely and simply because they want to and because they can. Eventually, a point almost always arrives when such unreasonableness is met, and countered, by even greater unreasonableness.
New Zealand is not different in this regard. Just because we haven’t had a revolution in our history does not mean that as a society we are immune to the forces and actions that cause them to come about – all it means is that we haven’t reached that point yet. But we are a young country, meaning that time is against us, and today, unreasonableness on the part of Government is beginning to become more and more apparent.
Let me paint a hypothetical scenario. A New Zealand firearms licence holder is visited by Police in his or her home. Firearms are confiscated without adequate compensation being paid. The firearms licence holder resists, and is arrested and locked in the Police station cells.
Shortly thereafter, a large group of the firearms licence holder’s friends and supporters, outraged by his or her treatment, arrive at the Police station in question. They physically confront the officers there, force their way into the building, break open the cell, and let the firearms licence holder out.
At what point in this hypothetical scenario is the law first broken?
I’ll tell you. The law is first broken when Parliament passes an Act allowing for the confiscation of private property without adequate compensation. That is where the unreasonableness begins, and where the inalienable rights of the private property owner are breached by a Government acting in an unlawful manner – that is, in a manner that contravenes the Common Law.
It is the act of the Government doing something that is unreasonable and unlawful, that leads to the confrontation between the uniforms and the pitchforks. This scenario could have been avoided altogether if Government had not chosen, freely and deliberately, to be unreasonable, and to deny the rights of the private property owner here, because they wanted to, and because they could.
It is where the force of law exceeds the authority of law.
It is tragically sad that it takes pitchforks to make some people see reason, and to behave reasonably rather than unreasonably. But history tells us that all too often, this is the way that things happen.
Why do some people in positions of public authority choose to behave in this manner? Personally I believe it comes down to power, and to the ability to impose one’s will on others.
Most people do not have power, have no interest in having power, and find it hard to understand why others would want to have it.
But too many of the few who do have power are addicted to it, and want more of it, and almost inevitably come to behave irrationally in their pursuit of it. They would rather face the pitchforks than give it up. In my view, such attitudes are simply not sane.
Thomas Jefferson again: “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”
It will be a very wonderful thing if New Zealand can be the first place and the first time where it doesn’t have to be this way.
Those who fail to learn the lessons of history are doomed to repeat them. Will we repeat them?
Richard Prosser