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The Kiwi Party, with financial help from the gun owner’s community, has bought legal proceedings under the Declaratory Judgments Act, claiming that the Amendments to the Arms Act are invalid. The basis for the claim is that:
- The parliamentary process was flawed;
- The Amendments are unconstitutional.
- Parliamentary process
Over time the idea that parliament is sovereign and so cannot be questioned has almost become set in stone. As it is said: “an assumption repeated often enough is well on the way to becoming reality”.
To challenge this we argued that parliament was no longer truly representative, as the party system meant that in fact MP’s allegiances were to the Party bosses, not to the electorate. Here we relied on an affidavit from Rodney Hide, who said that ‘safe seats’ and MMP has resulted in all but total control of Parliament by the Party bosses. In regard to the way the Amendments were rushed through Rodney said: “I have never seen anything like it”.
We then argued that by providing for Orders in Council that could prohibit all ammunition, the Select Committee had abdicated its legislative role. Parliament cannot be sovereign if it has abdicated. It was also claimed that the rushed through process showed that the decision was already made and that it was just rubber-stamped by the Select Committee. In particular, it was argued that Treaty issues should have been considered.
There were two parts to this argument. The first rested on Magna Carta, the Bill of Rights 1688 and the Treaty. We claimed that these documents were constitutional declarations and that Parliament could not override them. Article 61 of Magna Carta provides that resistance to unjust acts by the crown is permissible. It was argued that such resistance could only be done in arms.
The Bill of Rights 1688 at article 9 provides for Protestants to bear arms and it was argued that it continues to apply. The Treaty guarantees that Maori have a right to their Taonga. It was argued that muskets were Taonga and that the semi-auto is the modern equivalent.
It was also claimed that there is a constitutional right to bear arms, as this is the means by which society prevents the powerful becoming tyrannical. While this right is often identified with the US 2nd Amendment, in fact the 2nd Amendment does not provide the right, it merely says that “it shall not be infringed”. The right to bear arms is an ancient right which is co-incident with the democratic nature of the Germanic tribes, some of which became the English.
It is not at all doubted that in these proceedings we have a mountain to climb. Conventionally the Courts do not challenge Parliament and most do not even know that we have a substantive Constitution. Those that do think that it is subject to legislation. However we got a fair hearing in the High Court at Auckland on 15 May 2019 and the Justice has reserved his decision, saying that it may take some time as there are constitutional issues to consider.View Declaratory Judgement
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