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Luckily, the Constitution gives the Senate exclusive power to ratify, or block, the Arms Trade Treaty.
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Even before his most ambitious gun-control proposals were falling by the wayside, President Obama was turning for help to the United Nations. On April 2, the United States led 154 nations to approve the Arms Trade Treaty in the U.N. General Assembly. While much of the treaty governs the international sale of conventional weapons, its regulation of small arms would provide American gun-control advocates with a new tool for restricting rights. Yet because the Constitution requires that two-thirds of the Senate give its advice and consent to any treaty, Second Amendment supporters still have a political route to stop the administration.
Like many international schemes, this treaty has seemingly benign motives. It seeks to “eradicate the illicit trade in conventional arms and to prevent their diversion to the illicit market,” where they are used in civil wars and human-rights disasters. The treaty calls for rigorous export controls on heavy conventional weapons, such as tanks, missiles, artillery, helicopters and warships.
Yet, as with many utopian devices, the treaty fails the test of enforcement. Some of the world’s largest arms traffickers either voted against the agreement or abstained. The U.S., quite rightly, already has the world’s most serious export controls in place, while nations such as North Korea, Syria, Iran, Russia and China will continue to traffic in arms with abandon.
But the new treaty also demands domestic regulation of “small arms and light weapons.” The treaty’s Article 5 requires nations to “establish and maintain a national control system,” including a “national control list.” Article 10 requires signatories “to regulate brokering” of conventional arms. The treaty offers no guarantee for individual rights, but instead only declares it is “mindful” of the “legitimate trade and lawful ownership” of arms for”recreational, cultural, historical, and sporting activities.” Not a word about the right to possess guns for a broader individual right of self-defense.
Gun-control advocates will use these provisions to argue that the U.S. must enact measures such as a national gun registry, licenses for guns and ammunition sales, universal background checks, and even a ban of certain weapons. The treaty thus provides the Obama administration with an end-run around Congress to reach these gun-control holy grails. As the Supreme Court’s Heller and McDonald cases recently declared, the Second Amendment guarantees an individual right “to keep and bear Arms” such as handguns and rifles. Congress’s power to regulate interstate commerce remains broad, but the court’s decisions in other cases—even last year’s challenge to the Affordable Care Act—remind us that those powers are limited.
International treaties don’t suffer these limits. The Constitution establishes treaties in Article II (which sets out the president’s executive powers), rather than in Article I (which defines the legislature’s authority)—so treaties therefore aren’t textually subject to the limits on Congress’s power. Treaties still receive the force of law under the Supremacy Clause, which declares that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”
Some have argued over the years that this difference in language between laws and treaties allows the latter to sweep more broadly than the former. In Missouri v. Holland (1920), Justice Oliver Wendell Holmes followed this logic to declare that no “invisible radiation from the general terms of the Tenth Amendment” applies to the Treaty Power. Congress could win greater favor from the courts for gun-control measures, or President Obama could issue executive orders for a gun registry and background checks, on the claim that he is implementing the treaty.
Missouri read the treaty power broadly under the Supremacy Clause at a time when the courts gave Congress’s powers short shrift, but the decision was fundamentally mistaken. The Supremacy Clause referred to treaties “made under the Authority of the United States” not to expand their scope—but to grandfather in existing agreements such as the Peace Treaty with Great Britain. In Reid v. Covert (1957), a plurality of justices agreed that the treaty power could not undermine the Bill of Rights, rightly trying to close the huge loophole that Missouri had erroneously opened.
The attempt to advance gun control through the Arms Trade Treaty might surprise average Americans, but not liberals, who have been long frustrated by the Constitution’s limits on government. Gun-control statutes, like any others, have to survive both the House and the Senate, then win presidential approval. It is far easier to advance an agenda through treaties, unwritten international law and even “norms” delivered by an amorphous “international community.”
Opponents of capital punishment have used treaties to press the Supreme Court to stop the death penalty in Texas. Women’s rights groups advocate an international convention that would achieve the goals of the failed Equal Rights Amendment. And supporters of bans on “hate speech” invoke international norms to defeat First Amendment objections. There also is an international legal doctrine that during the period when a country has signed but not yet ratified a treaty, it must take no measures that defeat the treaty’s object and purposes. Under some liberal theories, this would allow the president to put some measures of the new arms treaty into effect by executive order.
Fortunately the Framers required that the president submit all significant international agreements to the Senate, which must consent to the treaty with the same supermajority needed to send a constitutional amendment to the states or to override an executive veto.
The Senate should block this latest effort to evade the Constitution’s controls on federal power. There could be no greater justification for senators to exercise their veto over treaties than the cause of protecting the individual liberties of Americans—including the right to bear arms.
Mr. Bolton, a senior fellow at the American Enterprise Institute, is a former U.S. ambassador to the U.N. Mr. Yoo is a law professor at the University of California at Berkeley and a scholar at AEI.
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