Saturday, April 6, 2019

Stephen Franks: NZ’s right to bear arms? Firearms as a Treaty taonga.

When the Treaty was signed, pu and tupara (muskets and double barreled shotguns) were among the most valuable of all taonga under Article 2 (if it really does go beyond the real property interests listed as the New Zealand courts say). 

Article 2 assured the chiefs and all the ordinary people of New Zealand that they would have undisturbed exclusive use and possession of their taonga.

So if relations between Police and (rural) Maori break down, it is inevitable that some Maori will assert a Treaty right to be free from confiscation and possibly even licensing for firearms. Urban judges from leafy suburbs will look for some sophistry to reject that claim both in law, and morally. But they should not underestimate the power of a strong view that authority is wrong allied to a wide belief in historical right. We have seen that repeatedly. Myth becomes political reality when enough people believe the myth.

The Arms Act 1860 exempted Maori. I have not researched the history, but I suspect that reflected both practical common sense on enforcement, and recognition of a Treaty assurance of Maori rights to retain pu and tupara. Under the so-called right of development in Treaty jurisprudence, that would now extend to whatever is the modern equivalents (in relative effectiveness to other weapons?)

I raised this possibility in my last minute submission to the Select Committee. I imagine there will have been many, judging from the latency on the Parliamentary website template for submissions.

Irrespective of the strength of the possible treaty argument, a heavy handed law change that rural people see as unreasonable could have a high price.

I have been a hunter for 50 years. I have a large rural property. I know hundreds of fire-arms users. I was unconcerned by a move against genuine MSSAs and large capacity magazines. But the Bill goes much further.

Parliament will be largely unaware of the level of informal borrowing and use of firearms in rural communities, particularly among Maori, that occurs with indifference to current law let alone what is in the Bill.

I can attest from personal knowledge to the degree of non-compliance with law on registration of vehicles, and driver licencing. There is similar non-compliance with gun owner licence requirements.

I believe that the Police wisely avoid interfering where they feel there is likely to be no harm done. And with positive relationships, unless forced to act, they get cooperation and information from families that would be at risk if there was vigorous inspection or enforcement.

But Police will have little alternative but to enforce the new law, though thousands of gun owners could decide to ignore it, or worse, to hide their guns, or to offer them to relatives or others who will be willing to ignore the law change. Those firearms will become invisible, whereas at present, the Police can expect reasonable frankness about them.

A general problem when censorious children are elected to govern

I see this issue as yet another where the urban ‘woke’ have utterly tin ears.

New Zealand has avoided many irreconcilable political fights over competing values. Now an ignorant generation are looking for ways to anger their opponents by deliberately kicking  sleeping dogs. Wise politicians pick no unnecessary fights that focus people on differences instead of on values they share.

Gun law has not been a tribal political issue here. My Select Committee 17 years ago reached a cross party consensus. But it is a badging issue in the US. So our “progressives” start the same chants to ape their US betters. They want to stick it to gun owners to show who is in charge – to anger “deplorables”. Whether the changes have any connection to a problem or a solution is immaterial to them. It is not so much ‘virtue signalling’ as IFF – identifying friend from foe.

From the same impulse they are trashing our 50 year old tacit deal  on abortion (‘we’ll pretend we have a law against abortion and leave the issue alone, if you too pretend the same”).

They look for any issue they can to stick the coercive state’s fat finger up the nose  of Christians – while excusing the ghastliness of Islamism, again to ape their US models.

They ended charter schools out of similar vindictiveness, thereby ensuring that whatever Hipkins does now in education will be reversed when he loses power.

And on free speech and so called non-binary gender and many other ‘me too’ (in its original sense) progressive causes their language, their solutions and their reasons are entirely derivative.

A consolation is that they are cementing their distance from the ordinary working people they have long scorned but claimed as the objects of their sanctimonious “altruism”.

Stephen Franks is a principal of Wellington law firm Franks & Ogilvie and a former MP. He blogs at


Brian said...

Interesting summary by Stephen Franks, which after reading it twice, I came round to the view I have had for considerable time, that the fall of the Berlin Wall did not mean the end of Communism.
As Niall Ferguson put it in his book “Civilisation” a simple pair of jeans did the trick at that time; but as fashions change, so does the face and appearance of political situations. But not the direction nor does it signal an end of Communism.
The attack and very possible implementation of a Hate law on freedom of speech will be selective to a very high degree. It will be worded suitably to confuse, and be at the same time sympathetic to idealistic minorities. This has been a feature of Labour and regrettably National Party leftist politics, since the advent of MMP.
Worldwide we see that this left wing idealism leading the way to socialism; as more democratic principles are given away by the soft underbelly of the Western Democracy ideals; mainly in a surrender to, and appeasement of minorities (These minority issues are and represent the phalanx, or spearhead of a World takeover by the rabid left.
There is little doubt that a law will be passed on so-called “Hate Speech”; and that will contain provisions to exclude various groups. It will apply to all of European extraction aimed “as they will say” at this White Supremacists. This is a pleasant change from the usual cry of racist, and has emerged since the recent Terrorist attack in Christchurch.
The question now arises on Stephen Franks “New Gun Laws”
1. How will they be enforced?
2. Can they be enforced?
3. Have we Judges and Courts the will and ability to challenge the Government on the legality of such a law!
4. How will our present police force protect those in isolated communities?
Whether any real control on guns will actually happen as Stephen Franks indicates, is born our by a remark made early in the 1920’s USA. By the famous baseball players Babe Ruth; who on being asked what he thought of “Prohibition”, simply said. “Well it’s better than no beer at all”!
With any introduction of a “Hate speech law”; the major question will be would such an act constitute a change to our Democracy? On such an issue the governing party has a duty to take this to the people to decide?
The recent prohibiting by the Labour/Green Government of viewing the Christchurch video massacre, and the Manifesto, is an attack not only upon our freedom and intelligence to judge the actions of this terrorist, but upon Democracy itself.
It is typical of what occurs in Communist and Fascist countries.
We may well ask “Quo Vadis” New Zealand!

Puke said...

Thank you Stephen Franks for your forthright esay. Please keep at it.