The U.N. Arms Trade Treaty and the Second Amendment

http://blog.heritage.org/2012/07/13/the-u-n-arms-trade-treaty-and-the-second-amendment/

Can the U.N. Grab Americans’ Guns?

For much of the past two weeks, I’ve been attending the U.N.’s Arms Trade Treaty conference in New York and blogging on the craziness of Turtle Bay. A number of comments on my blogs—and many external commentators—have raised the question of whether the ATT is, pure and simple, a “gun grab” treaty.

Let’s start with three basic points:

1. No external power, and certainly not the U.N., can disarm U.S. citizens or deprive us of our Second Amendment rights by force. If there is a Second Amendment problem, it comes from the actions of U.S. authorities.
2. The U.N. and many of its member states are hostile to the private ownership of firearms.
3. The U.S. is exceptional: It is one of the few nations that has a constitutional provision akin to the Second Amendment.

Thus, the default U.N. tendency—partly out of malevolence, partly out of ignorance—is to act in ways contrary to the Second Amendment, and the fundamental job of the U.S. at the U.N. is to try to stop bad things from happening. The alternative of completely quitting the entire U.N. is appealing but unwise, because the U.N. would keep doing things that would affect the U.S. even if we were not in it.

The U.N. is aware of the political dangers of appearing to stomp openly on the Second Amendment. It uses code words; it runs closed meetings—a veteran of the process tells me that meetings were normally open until the National Rifle Association began showing up at them—and, above all, it plays a long game. A big problem with talking about the ATT as a “gun grab” treaty is that the U.N. works by taking slices: when it comes to the U.N., being outraged by one development is no substitute for focusing on how the slices pile up over time.

I don’t give much too much credit to the U.S. for stating as a red line that it will uphold the Second Amendment, because that raises the question of what relevant activities are (as the State Department puts it in its red line) “permitted by law or protected by the U.S. Constitution.” Simply backing the Second Amendment is good, but it is better to spell out—as Senator Jerry Moran (R–KS) did at Heritage recently—exactly what rights and activities you believe the Second Amendment protects. Only in that way does a promise to uphold the Second Amendment carry the full weight that it deserves.

So what are the domestic concerns posed by the ATT? Four are important.

1. Transfer requirements. First, there are specific textual requirements. The most recent draft text states, for example, that the ATT will apply to “all international transfers of conventional arms” but then goes on to define “international transfers” as “the transfer of title or control over the conventional arms.”

Does this mean that any transfers, including domestic ones, count as international and are thus subject to the treaty’s provisions? There are similar concerns related to the potential reporting requirements of the treaty and thus to the possible creation of a U.N.-based gun registry. If it is to be true to its published red lines, the U.S. cannot accept any of this.

1. International business. Second, most major U.S. arms manufacturers have an international financing, insurance, and parts and components chain. The ATT could become a means for foreign countries to pressure U.S. firms to exit the market, reducing the ability of Americans to make effective use of their firearms rights.
2. Further review of the rules. This is not the end of the process. The ATT will be elaborated at review conferences, where the U.S. goal is to develop “best practices” for its implementation. Similarly, if President Obama were to sign the ATT but not submit it to the Senate for ratification, the U.S. would hold itself obligated to “refrain from acts which would defeat the object and purpose” of the ATT.
3. Constitutional interpretation. Finally, the ATT is part of a process that will inspire judges and legal theorists who believe that the Constitution needs to be reinterpreted in light of transnational norms. This is the most important problem of all, though it is broader than the ATT.

Just because the ATT is not a “gun grab” treaty does not mean it raises no domestic concerns: “Gun grabs” are less plausible than “death by a thousand cuts.” On the other hand, the ATT should raise concerns beyond the Second Amendment. Representative Mike Kelly (R–PA) recently led 130 of his colleagues in expressing a range of concerns about the ATT to the Administration.

It makes sense to balance legitimate expressions of concern for the Second Amendment with concerns on economic, foreign policy, and national security grounds. There’s enough to dislike about the ATT to keep everyone busy.