Kiwis have no constitutional right to bear arms, Court of Appeal rules in failed challenge to Govt gun ban

Police Senior Sergeant Paddy Hannon holds a Norinco semi-automatic rifle, which is one of the now illegal firearms. Photo / Mark Mitchell

The Kiwi Party argued New Zealanders need access to semi-automatic weapons and large capacity magazines to match police firepower should the Crown ever turn on its citizens.

A legal challenge by firearms owners to the Government's military-style semi-automatic weapons ban claiming New Zealanders have the right to bear arms under the Treaty of Waitangi was "doomed to fail", the Court of Appeal has ruled.

The Kiwi Party, formed after the Christchurch terror attacks to protect free speech and individual rights, contested the validity of the Government's new gun law and the expedited process by which it was passed in the courts.

This morning, the terrorist whose mass shootings led to the law change pleaded guilty in the High Court at Christchurch.

Australian national Brenton Tarrant admitted murdering 51 people at two Christchurch mosques on March 15 last year. He also pleaded guilty to 40 charges of attempted murder and one charge of engaging in a terrorist act.

Quickly following the attacks, Prime Minister Jacinda Ardern vowed to outlaw the types of firearms Tarrant used. It led to the Arms (Prohibited Firearms, Magazines, and Parts) Amendment Act being passed last April after a truncated select committee process.

Most military-style semi-automatic weapons and associated parts were prohibited.

But the Kiwi Party, which is different to the party of the same name that broke away from United Future in 2007, asked the courts to forbid the Government from acting on the law until six months after the 2020 election or until a referendum could be held.

Prime Minister Jacinda Ardern announced a ban on MSSAs would be introduced after the Christchurch terror attacks. Photo / File

After being initially turned away by the High Court, the group, founded by licensed firearms owners, went to the Court of Appeal. They also, earlier this year, attempted a "leapfrog appeal" to the Supreme Court, which was unsuccessful.

In its argument, the Kiwi Party's counsel Graeme Minchin said the members of the Select Committee which considered the bill "failed in their duty to provide the checks and balances necessary to maintain a free and democratic society".

They also claimed it failed to take into account the Magna Carta, while the law also breaches the Treaty of Waitangi and is "unconstitutional" because it contravenes the "right to bear arms [which] is coincident with the balance of powers in English society".

The so-called constitutional right to bear arms, the Kiwi Party argued, had derived from ancient custom, which evolved into a common law right and was affirmed by the Magna Carta, the Bill of Rights 1688 and the Treaty of Waitangi.

Minchin 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".

He said New Zealanders need to be able to exercise their "constitutional right" to access semi-automatic weapons and large capacity magazines to be able to effectively defend themselves against any unlawful use of arms by agents of the Crown or Executive.

In particular, he argued New Zealanders need access to semi-automatic weapons in order to match police firepower should the cops resort to unlawful use of firearms against New Zealand citizens. However, Minchin acknowledged the "ugliness" of the proposition he was advancing.

Terrorist Brenton Tarrant, 29, pleaded guilty to all the charges he faced when he appeared in court via audio-visual link today. Photo / Pool

In the Court of Appeal's decision, released this week, Justice David Collins said: "We accept for present purposes that it was customary in ancient times for citizens of England to bear arms ... We do not need, however, to determine if the custom of bearing arms evolved into a common law right.

"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."

Minchin also relied upon article 3 of the Treaty of Waitangi under which the Crown gave an assurance to Māori they would have the Crown's protection and be afforded all rights accorded to British subjects.

It was argued by Minchin that because British subjects had the right to bear arms, Māori also acquired that right.

But the Court of Appeal ruled: "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."

The court said the rights the Kiwi Party say have been breached are not found in the Treaty of Waitangi and the argument "was doomed to fail".

"The fallacy that there is a constitutional right to bear arms in New Zealand is further highlighted by an examination of the way other democratic countries regulate the ability of their citizens to access firearms," the decision reads.

Police Senior Sergeant Paddy Hannon with some of the firearms that are now illegal in New Zealand. Photo / Mark Mitchell

The Court of Appeal said it was "striking" a 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 court said.

The relevant parts of the constitutions of Guatemala and Mexico are modelled on the Second Amendment of the United States Constitution.

"Thus, it can be fairly said that the right to bear arms is an example of American constitutional exceptionalism," the Court of Appeal said. "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 of Appeal decided the claimed right to bear arms is not supported by any constitutional instruments applying in New Zealand.

"In this country, as in almost all countries, a citizen's ability to possess, own and use firearms is regulated by legislation ... There is no constitutional right to bear arms in New Zealand let alone the arms that are prohibited by the Amendment Act."

The Government also implemented a firearms buy-back scheme after the gun law was passed.

Police Minister Stuart Nash said more than 50,000 guns have been handed into police.