On July 27, 2012, Secretary of State Hillary Rodham Clinton will likely sign the UN Arms Trade Treaty. This treaty sets up an international body to regulate guns worldwide. That body will inevitably infringe upon the right of the American people to keep and bear arms. But the Senate will likely never ratify it, and even if it did, the Constitution would supersede it. Or would it?
Terms of the UN Arms Trade Treaty
No text of any UN Arms Trade Treaty is available yet. The UN Arms Trade Treaty Conference began on July 2 and will end on July 27. The idea for a UN Arms Trade Treaty began in 2003 with a group of Nobel Prize winners. The UN started to discuss the idea in 2006. But President George W. Bush finally said that he would never sign a treaty like that. The treaty would impose on American sovereignty, and Bush would not agree to that.
But Barack H. Obama would. On October 14, 2009, he said so. Hence the conference and the signing ceremony next Friday.
(The UN might have ruined its chances for a UN Arms Trade Treaty last week. They selected Iran as a Vice President in charge of the treaty conference. Even the US State Department shuddered at that move.)
This resource page at the UN site gives the reasons for the treaty. The UN wants to regulate the import, export, and transport of small arms around the world. The UN hasn’t yet published the terms and conditions of the treaty. (They probably haven’t because they haven’t settled on those terms.) But a large group of gun-control advocates have told the world what they would like to see in a UN Arms Trade Treaty. This heading and sentence are key:
The [UN Arms Trade Treaty] must be all-inclusive. It must include all weapons, all transfers, and all transactions.
The group explicitly talks about guns now in military and police hands. But when it talks about “all weapons,” it does not exclude weapons in private hands. Nor does that sentence exclude in-country sales. So any UN Arms Trade Treaty would have to regulate private sales inside the United States, from one lawful resident to another, to satisfy the letter of the wishes of the Control Arms group.
The Constitution on treaties
The Constitution says two things about treaties. First, the President may negotiate them, but must ask the Senate to ratify them. Two-thirds of the Senators present must vote “Yes” on a treaty before it can take effect.
Once a treaty does take effect, it is supreme and legally binding. Specifically, Article VI of the Constitution lists three things as supreme, in this order:
These things take precedence over State and local law. But can a treaty take precedence over the Constitution?
The Declaration of Paris, in 1956, forbids its ratifying parties to use privateers to seize enemy shipping in time of war. That seems to supersede Article I, Section 8, Clause 11. That clause grants to Congress “the power…to grant letters of marque and reprisal,” the licenses under which privateers work. But according to the Constitution Society, Congress did license an airborne privateer (the Resolute, a helium-filled airship belonging to the Goodyear Tire and Rubber Company) for anti-submarine patrol off Los Angeles, California in 1941-1942.
Congress licensed two privateers during the War of 1812. These are the only letters of marque and reprisal that Congress ever granted. But Representative Ron Paul (R-Lake Jackson, TX) has said that Congress ought to grant such licenses to private armed escorts, instead of asking the United States Navy to escort US-registry freighters through pirate-infested waters. The Resolute license might give him enough precedent to say that the Declaration of Paris might not be as all-inclusive as most people think.
Reid v. Covert
In 1957, the US Supreme Court decided that treaties cannot supersede the Constitution. (Reid v. Covert, 354 US 1 (1956)) Mrs. Covert was one of two US military service wives who shot and killed their active-duty husbands while on US military bases abroad. Incredibly, the Air Force tried Mrs. Covert, and the Army tried Mrs. Smith, for murder by general court-martial under the Uniform Code of Military Justice. The services argued that international law said that military tribunals had exclusive jurisdiction of all crimes on US bases, no matter who committed them. But the Supreme Court said that only a civilian court can try a civilian, no matter where that civilian is.
Then the court made abundantly clear what the Supremacy Clause really means. At issue is whether the Constitution allows all treaties, not just “those made in pursuance” of the Constitution, to take precedence over the Constitution. The Court emphatically said no. To think otherwise would be to let a treaty amend the Constitution other than through the amending process in Article V. (See 354 US 16-17.)
The Vienna Convention on the Law of Treaties
The flag of the United Nations. (Public domain as per UN policy.)
This is a United Nations treaty that governs how the nation-states that ratified it, interpret other treaties. Several articles are important to remember here:
Article 11 says that States may bind themselves to a treaty by signing it, exchanging texts of it, ratifying it, or however else they agree.
Article 12 says that a signature alone binds a State if the treaty says that it does.
Article 14, on the other hand, says that ratification binds the State if the head of State signed it subject to having another body of government ratify it.
Article 18 is the key. It says that States must not do things to stop a treaty from taking force or effect while they wait for the right body of government to ratify it.
If a State changes its mind about a treaty after signing it, it must make clear that it will not let the treaty bind it. To do that, one of two things would have to happen:
The President formally refuses to send the treaty to the Senate (or withdraws it from the Senate before it can vote on it).
The Senate votes the treaty down.
The Senate is not likely to ratify the UN Arms Trade Treaty. Fifty-eight Senators recently signed a letter to protest it. But before the Senate can vote the treaty down, the Majority Floor Leader must schedule that vote. Senator Harry Reid (D-NV) would have every incentive not to bring the treaty up for a vote. He surely knows that the UN Arms Trade Treaty would not even achieve a simple majority in its favor.
Dick Morris, former adviser to President William J. Clinton, put it this way:
The fact that the NRA has succeeded in getting fifty-eight Senators to sign on opposing the [UN Arms Trade Treaty] is irrelevant. If Harry Reid won’t bring it up on the floor, it won’t get a vote. And, in the absence of Senate disapproval or a renunciation by the president, the United States is bound by the Treaty under the provisions of the Vienna Convention which we have both signed and ratified.
But Morris might be mistaken. The United States never ratified the Vienna Convention on the Law of Treaties. This UN document says that the USA signed it but never ratified it.
Morris also is afraid that the UN Arms Trade Treaty will supersede the Second Amendment. He cited the Supremacy Clause. But the ironically named Reid case says that the Supremacy Clause does not make a treaty supreme to the Constitution.
Other commenters, who prefer not to use their names, say that this (putative) President has already played fast and loose with much of US statutory and case law. They simply do not trust Barack H. Obama to uphold the Second Amendment against the UN Arms Trade Treaty.
What will really happen?
The putative President and his Secretary of State will likely sign the UN Arms Trade Treaty, or whatever draft of it comes out of the UN Arms Trade Conference. Most Senators will say they oppose it. But the Senate might not even vote on it until after the election.
But the first private owner, or seller, of guns in the United States, to whom an officer of the UN, or Interpol, or ATF, pays a visit pursuant to this treaty, will likely sue. He will claim his Second Amendment rights and challenge the treaty on those grounds. He will cite the Reid case, the most direct case on point. The government will likely cite the Vienna Convention.
The problem: at least two serving Justices of the Supreme Court are on record as favoring international law to supersede American law. They are, of course, Mme. Justice Ruth Bader Ginsburg (see here for her speech) and Mr. Justice Stephen Breyer. Chief Justice John Roberts’ tortured decision in NFIB v. Sebelius suggests that he might rule against this hypothetical gun owner or dealer by rewriting the treaty.
Dick Morris, of course, favors making the UN Arms Trade Treaty a campaign issue. He suggests that replacing (actually, removing) the (putative) President, and replacing enough Senators to persuade the Senate to choose another acting CEO (for that is what a Majority Floor Leader is), are absolutely necessary to protect Second Amendment rights in the face of the UN Arms Trade Treaty.
Mike Vanderboegh (Sipsey Street Irregulars) has something more forceful to say:
Let ‘em pass it and sign the d__n thing. The first time they use it for an excuse to further circumscribe our rights here, somebody will likely get shot, and so on, and so on, until the civil war they start is won by the Three Percent.