Thread: Constitution and controls on firearms ownership

Here is a link to the Firearms owners of Australia website which holds a reprint of a British publication giving the case to abolish firearms control as unconstitutional under common law and the bill of rights 1688 which is still in force today.
The British webpage disappeared last year.
https://www.foaa.com.au/the-case-aga...-constitution/

It is a worthwhile read to understand how we arrived at the present situation, where private ownership of firearms seems to be under a never-ending attack. It may help those who view control as benign, and not a threat, those willing to accept more control in the name of safety, to understand that all controls are about power and coercion, a prelude to registration and confiscation.

It should be noted that during the 19th century, when British people were completely free to arm themselves, although the population grew to several times its original size (from 11 million in 1801 to 41 million in 1911), the crime rate fell not only in relative but also in absolute terms. Nonetheless, the final decades of the 19th century saw a marked increase in the control by the state over the life of the people in many fields, and demands were increasingly put forward for various measures of gun control. A leader in the Daily Telegraph, of 5 November 1888, for instance, argued that

“We can conceive instances in which it is justifiable, or at least excusable, for civilians to have revolvers in their dwellings … The carrying of a revolver on the person is quite another matter; and it is distinctly a cowardly, bloodthirsty, and un-English habit …

“Let the proprietors of revolvers be registered and let no person be placed on the register until he can show his right to possess such a weapon, which should be numbered, and let infraction of the law be made a misdemeanour punishable by fine and imprisonment.”[13]

In this new mood, the government introduced the Pistols Bill 1893, which sought to impose restrictions on pistol sales and use, but the Bill was defeated. C.H.Hopwood objected that

“It attacked the natural right of everyone who desired to arm himself for his own protection, and not harm anyone else.”[14]

In 1895 a private member’s bill which sought similar restrictions was again defeated, the same Hopwood arguing that

“To say that because there were some persons who would make violent use of pistols, therefore the right of purchase or possession by every Englishman should be taken away is monstrous.”[15]

Colin Greenwood, former Chief Inspector of the West Yorkshire Constabulary and now editor of Guns Review, in his definitive study Firearms Control, summarises the legal situation with regard to firearms in 1900:

“England entered the twentieth century with no controls over the purchasing or keeping of any types of firearm, and the only measure which related to the carrying of guns was the Gun Licence Act, requiring the purchase of a ten shilling gun licence from a Post Office. Anyone, be he convicted criminal, lunatic, drunkard or child, could legally acquire any type of firearm and the presence of pistols and revolvers in households all over the country was fairly widespread…” “…guns of every type were familiar instruments and … anyone who felt the need or desire to own a gun could obtain one. The cheaper guns were very cheap and well within the reach of all but the very poor … the right of the Englishman to keep arms for his own defence was still completely accepted and all attempts at placing this under restraint had failed.”[16]

The Pistols Act 1903 introduced the first restriction on retail firearms sales. Although other firearms were not affected, this was a dangerous precedent, in that when, in a more intolerant atmosphere, the state sought further restrictions on firearms, and these were objected to, it could point to the existence of the Act as justification for the principle of further statutory controls.

Such an atmosphere emerged with the First World War and its revolutionary aftermath. In 1918 the Sub-committee on Arms Traffic saw the vast quantities of surplus weapons that would come onto international markets after the war as a possible threat to the British Empire, both from “Savage or semi-civilised tribesmen in outlying parts of the British Empire” and “The anarchist or `intellectual’ malcontent of the great cities, whose weapon is the bomb and the automatic pistol. There is some force in the view that the latter will in future prove the more dangerous of the two.”[17]

It is important to stress that the government was not seeking to disarm the broad mass of responsible British people. Indeed, at the end of the war the government gave away nearly all its huge stockpile of captured German weapons to individuals who had contributed to the war savings scheme. Each person who had given a small amount received a rifle; those who had given more received a machine-gun; and those who have given particularly large donations were given a piece of German field artillery each![18]

The Firearms Act 1920 introduced major firearms control for the first time in British history, although in theory it did not extinguish the right to keep arms to defend the person and household. Under Section 1, with certain exemptions, an individual could only purchase or possess a firearm or ammunition if he held a firearms certificate, valid for three years and renewable for three-year periods, which “shall be granted by the Chief Officer of Police” in the applicant’s district, if the applicant had “good reason for requiring such a certificate”; could be permitted to possess, use and carry a firearm without endangering public safety; and on payment of a fee.
In 1972, in the only academic study ever made of British firearms legislation and its effects, Greenwood showed that none of the legislation had been based on proper research, and that all if it had been a complete failure in controlling the criminal use of firearms, which had increased – often dramatically – after every act of firearms control. “The use of firearms in crime was very much less when there were no controls of any sort and when anyone, convicted criminal or lunatic, could buy any type of firearm without restriction. Half a century of strict controls on pistols has ended, perversely, with a far greater use of this class of weapon in crime than ever before.”[23]

On the elaborate licensing system established by the legislation, he concluded that;
“The voluminous records so produced appear to serve no useful purpose. In none of the cases examined in this study was the existence of these records of any assistance in detecting a crime and no one questioned during the course of the study could offer any evidence to establish the value of the system of registering weapons … it should surely be for the proponents of the system of registration to establish its value. If they fail to do so, the system should be abandoned.”[27]

Interesting sort of goes to show that the crime rate with pistols increased as the restrictions went on. I suppose the criminals were reluctant to carry out criminal acts back then when they knew that the general public was most likely armed. It's obvious that tighter gun laws doesn't have the perceived effect that the powers to be think it will have. There needs to be some restrictions because how many people would have a use for a machine gun or such weapons but this day and age I think there is to much paranoia especially from city folk who have no use for a firearm in a lot of cases but there voice is strong and governments listen to the masses.

Originally Posted by Mooseman

Interesting sort of goes to show that the crime rate with pistols increased as the restrictions went on. I suppose the criminals were reluctant to carry out criminal acts back then when they knew that the general public was most likely armed. It's obvious that tighter gun laws doesn't have the perceived effect that the powers to be think it will have. There needs to be some restrictions because how many people would have a use for a machine gun or such weapons but this day and age I think there is to much paranoia especially from city folk who have no use for a firearm in a lot of cases but there voice is strong and governments listen to the masses.

Not sure it is the deterrent that law abiding citizens may shoot back at the criminal, at least not always, it may also be the case that it's not so cool to have a gun if you are ALLOWED to have it. The workings of the immature criminal mindset...

Originally Posted by Cordite

Not sure it is the deterrent that law abiding citizens may shoot back at the criminal, at least not always, it may also be the case that it's not so cool to have a gun if you are ALLOWED to have it. The workings of the immature criminal mindset...

There is possibly more truth to this than I would have originally thought. I see the same thing with alcohol. As kids we were allowed a glass of beer with dinner if dad had a bottle open. (1 or 2 times a week ) . However my Dad was also smart enough to open a bottle of Coca cola as well. Thus we preferred the coke to the beer as our sense of taste preferred it. (Sweeter) As such, as an adult I never took to drink quantities of beer as it was not a rebelious or cool thing to me. It was just a drink I did not like much. (Still dont and Im approaching 50 faster than I would like)

So if everyone was allowed to own one, whether they did or not, it would no longer be cool or special and people would look at them and go ho hum. whats that tosser doing?

Originally Posted by timattalon

There is possibly more truth to this than I would have originally thought. I see the same thing with alcohol. As kids we were allowed a glass of beer with dinner if dad had a bottle open. (1 or 2 times a week ) . However my Dad was also smart enough to open a bottle of Coca cola as well. Thus we preferred the coke to the beer as our sense of taste preferred it. (Sweeter) As such, as an adult I never took to drink quantities of beer as it was not a rebelious or cool thing to me. It was just a drink I did not like much. (Still dont and Im approaching 50 faster than I would like)

So if everyone was allowed to own one, whether they did or not, it would no longer be cool or special and people would look at them and go ho hum. whats that tosser doing?

Probably would have been healthier to drink the beer

Wow, tldr for us plz?

When the word "constitution" gets used the argument sounds important and weighty. But is it, really?

The constitution referred to here is the Bill of Rights 1689 (or 1688 for the NZ version). There are several things you may want to know.

Firstly, New Zealand has no written constitution. Not single Act has constitutional status. In New Zealand, Parliament is still supreme, it can elect new laws to override/repeal old laws all it wants. So if there is a conflict between new law and old law, new law prevails (although there are some minor exceptions to this). The best you can hope to happen is to have the Court declaring that the new law is inconsistent with the New Zealand Bill of Rights Act 1990 (note, not the 1688 Act). Even this declaration is a new thing that was only approved by the Supreme Court last year and has been resisted by the Government (they say the court has no power to make such declaration) all the way. So I do not think BOR 1688 has such elevated "constitutional status" as the author indicates, at least not in New Zealand.

Secondly, if you look into the background of the BOR 1688, you will pick up a few things. This Act was enacted to: address certain social/political problems of England of the day (which they say were caused by the exiled Catholic King James II) , namely, the King had too much power and Catholics had too much influence; and to assent William III, a Dutchman, to the King of England. So basically the Act was not as much as an big step of advancement in civil liberty or democracy as it was a band aid solution to a political problem of the day. The part that had long lasting, and arguably big-step-forward effect for future generations, was the first paragraph of the Act which limits the power of making or suspending law of a regal government. This was used as recently as 1980s to nullify some order made by the then NZ PM Muldoon.

Thirdly, if you read the wording the relevant para to arms in BOR 1688, it says this:

Subjects’ arms - That the subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law.

What we get out of it are:
A, it is affirming only the Protestant's right to arms, so if you are not a Protestant you are not covered;
B, it refers to right to have arms for defence - which is effectively outlawed by later laws in New Zealand;
C, even this paragraph says it is conditional on the ownership is allowed by law, obviously referring to other laws. So long as NZ has other laws that would permit a person to have fire arms, this paragraph would not be offended.

If it has not been repealed, it still stands. While the programming can interfere with comprehension, if you take the time and make the effort generally most can get the authors drift.

Included amongst these “ancient rights and liberties of the subject” is Article7 which states,

“The subjects which are Protestant’s may have arms for their defence suitable to their condition and as allowed by law.”

The right of Protestants to arms was affirmed because it was they who, as the preamble makes clear, had been disarmed “contrary to law” after the Restoration. The right to defensive weapons was not restricted to them as was made clear by another Act of the same year (W & M Sess 1, c. 15.). The wording “suitable to their condition” reflected the Bill of Rights appeal to ancient usage. It means the personal service weapons of the day. The Bill did not seek to create rights, but to reaffirm immemorial principles of common law. Constitutional commentary and case law would later confirm that this condition could not be construed to exclude “people in the ordinary class of life” (R. v Dewhurst, 1820). As has been shown above, the current Firearms Act respects the provisions of Article 7 of the Bill of Rights and the subject is “allowed arms by law.”

The Bill of Rights insists that its provisions be respected. Article13 states, “And for the redress of all grievances and for the amending, strengthening and preserving of the Laws Parliaments ought to be held regularly.”

‘The word “amend” means to make improvement to something. Article13 confirms that Parliament has no authority to diminish the subjects’ rights under the law. It is a reference to Magna Carta and Common Law and the reason why it would not be possible to make a Statutory instrument which directed a chief officer of police not to respect the right to arms for defence. The Bill of Rights makes this clear in the following passages, “No declarations Judgements Doings or Proceedings to the prejudice of the people in any of the said premises ought in any wise to be drawn hereafter into consequence or example.” … “All and singular the rights and liberties asserted and claimed in (this) declaration are the true ancient and indubitable rights and liberties of the people of this kingdom and so shall be esteemed, allowed, adjudged, deemed and taken to be and that all and every the particulars aforesaid shall be firmly and strictly holden and observed as they are expressed in the said declaration and all officers and ministers whatsoever shall serve their majesties according to same in all times to come.”

posted by Utiitsu
What we get out of it are:
A, it is affirming only the Protestant's right to arms, so if you are not a Protestant you are not covered;
B, it refers to right to have arms for defence - which is effectively outlawed by later laws in New Zealand;
C, even this paragraph says it is conditional on the ownership is allowed by law, obviously referring to other laws. So long as NZ has other laws that would permit a person to have fire arms, this paragraph would not be offended.

(B)
Would you care to state the legislation that outlaws arms for self-defence? Not what you assume or have been told. Move past your programming and present some evidence. Specific legislation that prohibits the use of arms to protect ones life or that of another. No bullshit police guidelines or policy, show me the law!

Originally Posted by Ultimitsu

When the word "constitution" gets used the argument sounds important and weighty. But is it, really?

The constitution referred to here is the Bill of Rights 1689 (or 1688 for the NZ version). There are several things you may want to know.

Firstly, New Zealand has no written constitution. Not single Act has constitutional status. In New Zealand, Parliament is still supreme, it can elect new laws to override/repeal old laws all it wants. So if there is a conflict between new law and old law, new law prevails (although there are some minor exceptions to this). The best you can hope to happen is to have the Court declaring that the new law is inconsistent with the New Zealand Bill of Rights Act 1990 (note, not the 1688 Act). Even this declaration is a new thing that was only approved by the Supreme Court last year and has been resisted by the Government (they say the court has no power to make such declaration) all the way. So I do not think BOR 1688 has such elevated "constitutional status" as the author indicates, at least not in New Zealand.

Secondly, if you look into the background of the BOR 1688, you will pick up a few things. This Act was enacted to: address certain social/political problems of England of the day (which they say were caused by the exiled Catholic King James II) , namely, the King had too much power and Catholics had too much influence; and to assent William III, a Dutchman, to the King of England. So basically the Act was not as much as an big step of advancement in civil liberty or democracy as it was a band aid solution to a political problem of the day. The part that had long lasting, and arguably big-step-forward effect for future generations, was the first paragraph of the Act which limits the power of making or suspending law of a regal government. This was used as recently as 1980s to nullify some order made by the then NZ PM Muldoon.

Thirdly, if you read the wording the relevant para to arms in BOR 1688, it says this:

Subjects’ arms - That the subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law.

What we get out of it are:
A, it is affirming only the Protestant's right to arms, so if you are not a Protestant you are not covered;
B, it refers to right to have arms for defence - which is effectively outlawed by later laws in New Zealand;
C, even this paragraph says it is conditional on the ownership is allowed by law, obviously referring to other laws. So long as NZ has other laws that would permit a person to have fire arms, this paragraph would not be offended.

Your post warrants a considered response from me but I am going out in a few minutes and will hopefully have time to respond later tonight.

Originally Posted by JWB

If it has not been repealed, it still stands. While the programming can interfere with comprehension, if you take the time and make the effort generally most can get the authors drift.

(B)
Would you care to state the legislation that outlaws arms for self-defence? Not what you assume or have been told. Move past your programming and present some evidence. Specific legislation that prohibits the use of arms to protect ones life or that of another. No bullshit police guidelines or policy, show me the law!

No need to be bitter. Re your points:

1. there is a concept of implied repeal, an old Act does not need to be expressly repealed to lose effect.

2. There is no specific law specifically outlaw defence using firearms. But for practical purposes you cannot rely firearms for defence - which is why I said "effectively". When you are confronted with a home intruder, if you have the time to go to the gun storage room, unlock the safe, load the mag, load the mag into the gun, then load the chamber and then shoot - you are probably OK (subject to you satisfying self-defence law which is also quite complex and may not actually permit you spend this much time preparing for the shooting which you will be seeking to be excused). In practice most law abiding people store their unloaded firearms in the safe and ammo separately, it is ineffective for the purpose of home defense. I am a firearm owner, just like you, just like everyone else in this forum. I think you would be hard pressed to find one NZ firearm owner who own firearm for defense. Dont know about you, I own them for leisure.

From the NZ Bill of Rights:

Life and security of the person

Right not to be deprived of life
No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.

And from...

SECTION 48 of the Crimes Act 1961 provides:

Everyone is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

This defence recognises that people have a right to defend themselves against violence or threats of violence, so long as the force used is no more than is reasonable for that purpose. The law does not require people to wait until they have been attacked before taking action to protect themselves.

Originally Posted by Ultimitsu

If you have the time to go to the gun storage room, unlock the safe, load the mag, load the mag into the gun, then load the chamber and then shoot.

Having a loaded mag would be more beneficial in that instance.

Originally Posted by Ultimitsu

1. there is a concept of implied repeal

2. There is no specific law specifically outlaw defence using firearms.

Thank you.
"Concept", not law, "Implied", not stated anywhere,

"No specific law". What is not forbidden is allowed.

One is only required to secure firearms when they are not under your personal supervision. Should one wish to have a firearm in hand while wandering your property, watching TV, reading a book or going to bed, then there is no prohibition to doing so as it is under your personal supervision. They are in possession of a firearm for a lawful purpose which could be self-protection or protection of their family.
I humbly posit that yes, for practical purposes, you can rely on firearms for self defence. At least on your own property. You certainly cannot rely on the police to protect your person or your family. They always turn up after the event to catalogue the victims.
You are responsible for you and your families protection.
Wasn't Baden-Powell's line "Be prepared".

Originally Posted by JWB

Thank you.
"Concept", not law, "Implied", not stated anywhere,

"No specific law". What is not forbidden is allowed.

One is only required to secure firearms when they are not under your personal supervision. Should one wish to have a firearm in hand while wandering your property, watching TV, reading a book or going to bed, then there is no prohibition to doing so as it is under your personal supervision. They are in possession of a firearm for a lawful purpose which could be self-protection or protection of their family.
I humbly posit that yes, for practical purposes, you can rely on firearms for self defence. At least on your own property. You certainly cannot rely on the police to protect your person or your family. They always turn up after the event to catalogue the victims.
You are responsible for you and your families protection.
Wasn't Baden-Powell's line "Be prepared".

I wont argue with your second point, because for me at least, I can assure you that I have no intention to be holding my loaded gun every moment while I am in my house, will not be doing that for the foreseeable future either. But, I respect your exercise of your lawful rights and doing it differently.

Re your first point, the concept of implied repeal is a legal concept, it is operative in common law countries such as New Zealand.

Originally Posted by JWB

Thank you.
"Concept", not law, "Implied", not stated anywhere,

"No specific law". What is not forbidden is allowed.

One is only required to secure firearms when they are not under your personal supervision. Should one wish to have a firearm in hand while wandering your property, watching TV, reading a book or going to bed, then there is no prohibition to doing so as it is under your personal supervision. They are in possession of a firearm for a lawful purpose which could be self-protection or protection of their family.
I humbly posit that yes, for practical purposes, you can rely on firearms for self defence. At least on your own property. You certainly cannot rely on the police to protect your person or your family. They always turn up after the event to catalogue the victims.
You are responsible for you and your families protection.
Wasn't Baden-Powell's line "Be prepared".

Quite true! You may lawfully carry a firearm in your own home provided it remains under your personal supervision. Any such 'self-defence' use will be subject to extreme scrutiny and will have to satisfy the provisions of the law to avoid prosecution. Regarding the Bill Of Rights 1688 etc., such protection is given under NZ legislation by The Imperial Laws Application Act 1988 which specifically includes British Constitutional Enactments from 1275 through to 1910, plus another three pages of them. Section 5 of the Act states "Application of Common Law of England - After the commencement of this Act, the Common Law of England (including the principles and rules of equity), so far as it was part of the laws of New Zealand immediately before the commencement of this Act, shall continue to be part of the laws of New Zealand". That is our guarantee, as well as the Treaty of Waitangi that grants those same rights to all NZ'ers. Your comment earlier about Protestants being allowed arms is merely an extension of the laws that were enjoyed by Catholics (Catholicism having been the official religion at the time) to all other citizens. The right of the general population to "possess arms for their defence" is not only personal defence but also a collective guarantee to prevent the political and military subjugation of the population, and thereby ensure the continuation of the principles of the Bill of Rights 1688 and the Statutes of Wesminster 1275, more commonly known as democracy! That is why an application for a Firearms Licence that meets the lawful criteria is subject to a 'shall issue' instruction in the Arms Act. No discretion is given.