Can the U.N. Gun Treaty Trump the Constitution?
1. Treaty or Constitution?
2. The Facts
3. Does ratification matter?
5. What, me worry?
(Treaty's goals according to U.N.)
1. Treaty or Constitution?
The bottom line is that the treaty will hold sway to the extent those in power can manage it. The media may lead the charge to hold the treaty out as a proper norm, and to declare America out of global compliance, even though it's only a proposal. And it gets more complicated.
Even if Hillary or Mr. Obama "sign" the proposed treaty, that has no legal weight, and it does not mean the treaty is signed and adopted and a matter of law (though I suspect the "news" media and the left may claim otherwise, forever). They'll invoke the Vienna Convention (below) for support.
Remember, the U.N. General Assembly must get the proposal and vote on it, though there is no number of votes needed to pass it per se. It exists in the ether forever, a convenient way to run an organization, eh?
We find out what's actually in the secret thing on July 27, if all goes as planned. It's not impossible that the negotiators will fail to come to agreement and nothing will be released. That sort of politicking is always a tool.
For now, we wait.
2. The Facts
My research shows that both the law and precedent, on whether a properly ratified treaty or the Constitution are in ultimate control of an issue, are scant and not dispositive. It depends on the actual treaty language in question, what it seeks to control, the part of the Constitution called into question, the claims presented by an aggrieved party and more. Virtually no language from the U.N. effort is publicly known at this time. The language of the Constitution, Article VI, is ruefully less than crystalline on this point.
Constitutional scholar Dave Kopel points out that: "The general question of to what extent treaties can be 'equal' to, or change, the Constitution is very unclear. Constitutional scholars spend a lot of time arguing about it, and there is no settled, general answer. The Supreme Court isn't about to overrule Missouri v. Holland (described below), but at least one recent decision by the Court indicates that there's a majority that regards the Missouri principle skeptically, and may chip away at it."
Although you and I may want to believe that logic and common principle should rule, in the rarified air of such matters, complex legal precedents and reasoning are what hold sway. Kopel cites this case for one --
State of Missouri v. Holland, U.S. Game Warden, 252 U.S. 416 (1920)
This was brought by Missouri to prevent a U.S. game warden from enforcing the Migratory Bird Treaty Act of July 3, 1918, and regulations made by the Secretary of Agriculture under it. This treaty between U.S. and Great Britain aims to protect certain migratory birds. Missouri claims the federal statute is an unconstitutional interference with the rights reserved to the states by the Tenth Amendment, and threatens the sovereign right of the State as owner of the birds within its borders.
The question raised, according to Oliver Wendell Holmes' seven-to-two decision, is the general one of whether the treaty and statute are void as an interference with the rights reserved to the States. The decision breaks both ways, with elements that can be excerpted to support or deflate a particular point of view unfortunately. For example:
"It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power..." however, "The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment." The decision is worth reading, linked above. Holmes says, "No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power," and he traces that back to Chief Justice Marshall. It's a short and circuitous decision.
Missouri lost. The treaty and statute made under it overruled the state's claimed sovereignty under the 10th Amendment.
The other case, Reid v. Covert, 351 U.S. 487 (1956), 354 U.S. 1 (1957) is about the jurisdiction in a court-martial murder conviction of a woman who killed her Air Force sergeant husband while in England (never a dull moment at the Supreme Court, eh?). Kopel notes that, "the military status-of-forces treaty with the UK cannot eliminate the 6th Amendment rights of American spouses of servicemen stationed in England. The case is generally regarded as standing for the principle that constitutional rights cannot be eliminated by a treaty." The case seems to me less on point than Missouri, which is to say neither answers the question as clearly as we may wish.
Attorney Stephen P. Halbrook, Ph.D., who has argued and won three gun-related cases at the Supreme Court, says that: "Reid v. Covert clearly states that a treaty may not be inconsistent with the Constitution. The difficult question will be whether specific treaties, such as restrictions on commerce in firearms, violate the Constitution. Courts are often blind to what appears obvious from the language of the Second Amendment (surprise surprise)."
One other high-profile expert points out that, "Treaties made 'under the Authority of the United States' are the supreme law, and any treaty made outside of the constitutional authority would not be." The problem there, as with the two cases cited above, is where those lines are drawn.
The NRA, an NGO (non-governmental organization) admitted to the conference, points out that at least 58 U.S. Senators are on record opposing any treaty infringement on the Second Amendment (leaving a question about the other 42), with 130 House members also opposing the scheme (with 305 unaccounted for), as of July 13. See the letters and details here: http://tinyurl.com/7dheupn
While some of us would surely and boldly draw the lines where they are "supposed" to be, i.e., in line with our natural and historic rights, the forces aligned against the Second Amendment have no problem arguing vigorously for its destruction, regardless of any of these details, and therein lies the greatest threat we face.
Anything in the U.N. ATT that works against the RKBA, even indirectly, will be cheered by the anti-rights advocates, with their "news" media allies leading the chorus. The ATT's rights-suppressing terms and conditions (if any) will be hailed as reasonable, common-sense gun controls with the weight of global consensus, and used to cast civil-rights supporters as Neanderthal throwbacks unworthy of civilization.
Many in Congress have already come out preemptively against any infringement in the treaty, but since we haven't seen the language it's impossible to say where that will fall. Would Congress object if the treaty says its goal is to help prevent crime and stop tyrants? Mr. Obama and Hillary have already voiced support for the still-secret U.N. effort.
Although the front end of a gun is supposed to protect against any tyrannical meddling, the cold-dead-fingers argument is little more than bumper-sticker rhetoric in modern times. Recall for example the Katrina debacle. Even the mere suggestion of such a thing (using gunfire to stop seemingly unconstitutional activity) could bring hellacious retribution just for the spoken words, let alone the use of force.
Footnote . According to Gun Owners of America:
"The Treaty will create a U.N.-based Implementation Support Unit (ISU) which will become an engine of gun control around the world..."
"Fox News reports that, under the latest draft of the treaty, every country would be required to submit a report to the ISU outlining 'all activities undertaken in order to accomplish the implementation of this Treaty, including… domestic laws, regulations and administrative measures.'
"Not only that, the ATT would require countries to set up their own government agencies to track any guns that could be exported. 'Parties shall take all necessary measures to control brokering activities taking place within its territories … to prevent the diversion of exported arms into the illicit market or to unintended end users,' the draft reads."
Footnote . Original intent, based solely on the words of the Constitution, is troubling (emphasis added):
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;
What do you think that means?
Doesn't it say a treaty is on equal footing
with the Constitution itself? (It sure seems to.)
Does it address how to resolve a conflict
between a treaty and the C? (No, it does not.)
Don't long-established rules of construction
demand that new law supplants old law? (Yes, they do.)
Does this mean the C is subservient in its entirety
to treaty, by the very terms of the C itself?
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
3. Isn't the arms treaty null and void if the Senate doesn't ratify it?
Sure, but watch out for the Vienna Convention of 1969. As Kopel notes, this Convention was never ratified in the U.S., but "The State Department has adopted a policy of acting in compliance with it." Sort of like government without consent of the governed. Its effect on the ATT is unknown, once again a matter of some discretion. Kopel notes, "The VC does not require signed-but-unratified states to implement a treaty. It does require a state not to do things which would undermine the treaty."
Read it yourself. The key Articles for us are 18, 25 and 27 below (thanks for the legwork Charly).
Article 18 Obligation not to defeat the object and purpose of a treaty prior to its entry into force (emphasis added)
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or
(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.
Article 25 Provisional application
1. A treaty or a part of a treaty is applied provisionally pending its entry into force if: the treaty itself so provides; or the negotiating States have in some other manner so agreed. (emphasis added)
2. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty.
Article 27 Internal law and observance of treaties
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. (emphasis added)...
1. The words of the Constitution are less than clear on whether a properly ratified treaty can override the terms of the Constitution itself. Scholars disagree on the point.
2. The two primary Supreme Court cases on the subject arrive at different results.
3. Anti-rights advocates will use anything they can in the treaty, even if it is not ratified, as a standard that should be lived up to.
4. The never-ratified Vienna Convention of 1969 can be used as a bargaining and propaganda tool against American rights.
5. This will ultimately resolve in the court of popular opinion.
We have our work cut out for us.
I've said it many times -- maybe now is the time to make yourself
more politically effective: http://www.gunlaws.com/books3.htm
5. What, Me Worry?
P.S. There is nothing to fear, as the U.N.'s own Arms Conference Fact Sheet informs us (Google "UNODA"). The goals of the conference are (this is from their fact sheet):
To negotiate a legally binding instrument on the highest possible common international standards for the transfer of conventional arms.
An Arms Trade Treaty aims to address all aspects of the arms trade, including:
o Scope - what weapons should be covered?
o Criteria - what situations should be taken into account by an exporting country when authorising a transfer?
o Implementation - what actions at the national, regional and global levels are needed to make an ATT work?
The ATT will aim to:
o Create a level playing field for global arms transfers by requiring all exporting countries to abide by similar standards for export controls
o Fill a gap in international efforts to curb the illegal arms trade
o Restrict the supply of weapons to human rights abusers, terrorists and organized criminal groups
o Bring more transparency to the global arms market.
The ATT will not:
o Interfere with the domestic arms trade and the way a country regulates civilian possession
o Create any international gun registers
o Lower arms regulation standards in countries where these are already at a high level
o Ban, or prohibit the export of, any type of weapons
o Impair States' legitimate right to self-defence.