OPINION: A few weeks ago I was discussing with a friend the unfolding case of George Zimmerman, the controversial Florida man who claims to have shot teenager Trayvon Martin in self-defence.
"How absurd," snorted the friend, "that America is so beholden to the gun lobby that they actually put the right to own a gun in their constitution."
What my friend was not aware of, like most New Zealanders I imagine, is that the right to bear arms is a part of New Zealand's constitution as well.
Our constitution isn't codified like the United States'. It instead consists of several conventions, customs and statutes.
One such statute is the Bill of Rights 1688, a piece of legislation so old that it not only predates the founding of this country, but also the founding of Britain.
Despite its age and historical origins, the act is part of New Zealand's law and is considered to be a key constitutional document.
It actually has more direct application to our legal system than the Treaty of Waitangi and has been relied on successfully in court as recently as 1976.
In that case, Fitzgerald v Muldoon, incoming Prime Minister Rob Muldoon declared that he was effectively suspending certain legislation, pending the passage of retrospective repeal legislation.
The plaintiff successfully argued that Article 1 of the Bill of Rights 1688 prevented the prime minister from suspending Parliament's laws.
That same Bill of Rights also affirms the right to bear arms for self-defence.
Does that mean that I can lawfully buy a submachine gun and carry it about my person? Can I wave off the local arms officer with the Bill of Rights 1688?
It's unlikely. For one thing, I am a practising Catholic and the Bill of Rights only provides that "the subjects which are Protestants may have arms". But I wouldn't fancy my chances even if I were to renounce the Roman Pontiff. My actions would be a breach of the Arms Act 1983 and, under our system of government, the courts must follow the provisions of the most recent law, even if it conflicts with an earlier law. Generally speaking, no Parliament can bind its successors - even where constitutional law is involved.
This is not the case in the US, where the Supreme Court established early on in its existence that it had the power to strike down statutes inconsistent with the constitution. Accordingly, the Supreme Court has, down the years, struck down various democratically enacted limitations and restrictions on the ownership and possession of firearms. In legal terms, this makes the constitution what is known as "entrenched" legislation.
The fact of entrenched law in American life reflects the distrust the first generation of Americans had for legislative bodies. After all, their war of independence was motivated as much by grievances against the British Parliament as it was motivated by grievances against the king.
So the right of citizens to bear and keep arms was entrenched because it was a matter of political consensus that this was a fundamental right in the 17th and 18th centuries.
That's not the case today. You don't need to be against self-defence to acknowledge that there are plenty of US jurisdictions that would quite like to restrict firearm ownership if they were allowed.
The problem is that legislation, once entrenched, is very hard to repeal - even if the consensus that supported it unravels. In some respects, that can be a good thing - it can protect fundamental and important freedoms from contemporary majorities. If you believe that, however, it is then hard for you to criticise the US's entrenched gun laws on the basis some people oppose them today.
It's worth noting that the New Zealand constitution possesses a second document that goes by the Bill of Rights name - the New Zealand Bill of Rights Act 1990. Unlike the 1688 edition, which was an effective response to a recently dictatorial monarchy, New Zealand had been a constitutional democracy under the rule of law for many years prior to 1990.
In fact, the 1990 act hasn't done much apart from inject uncertainty as to how judges will apply the law, in the same manner as the sometimes criticised "principles of the Treaty" clauses in other legislation. Despite that, the legislation is popular with our rulers and it is routinely touted for entrenchment as the supreme law of the land by politicians and legal academics.
I would hope that the American experience chastens us against making laws permanent. Who are we to say what values and priorities future generations of New Zealanders will expect from the legal system? Or are we really so conceited as to believe that the Parliament of 1990 had an infallible insight into those expectations?
Liam Hehir is a solicitor at Palmerston North law firm Fitzherbert Rowe. The views expressed in this column are his own.
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