Repeatedly, the U.S. Supreme Court has ruled that the Second Amendment provides individuals with the right to bear arms.
The only way the very vocal and insistent opposition to can legally prevent U.S. citizens from owning weapons is through a repeal of this portion of the Bill of Rights—a move that would most assuredly fail. And so, questionable alternative means are utilized.
One of the key methods employed during the past several years has been an attempt to circumvent Second Amendment guarantees through international treaties. There is no legal basis for any international agreement, however, to supersede a Constitutional provision.
The Tenth Amendment Center notes “Treaties cannot override the first eight amendments in the Bill of Rights or the Constitution’s other specific exceptions to federal authority (such as the ban on taxing exports). Those provisions were adopted to deny the federal government authority it otherwise might have. A treaty cannot override those limits. For example, the First Amendment denies Congress authority to ban socialist literature from the postal system. The First Amendment would trump any treaty requiring Congress to do so. Likewise, the Second Amendment denies the federal government power to confiscate hand guns from law-abiding citizens. A treaty cannot take this protection away.”
That has not prevented Second Amendment opponents from trying to interpret international treaties in a manner which could affect domestic gun ownership. One avenue that has been attempted is using the recent United Nations Arms Trade Treaty.
The United Nations Arms Trade Treaty (ATT) was adopted on April 2, 2013. “The minimum scope of arms covered by the Treaty [is] the seven categories covered by the United Nations Register of Conventional Arms and an eighth category on small arms and light weapons. The Treaty requires States parties to regulate the export of ammunition/munitions fired, launched or delivered by the conventional arms [and] requires States parties to regulate the export of parts and components where the export is in a form that provides the capability to assemble conventional arms prior to authorising their export. [The treaty] explicitly prohibits…arms transfers that would be contrary to international legal obligations, or where the State knows the arms would be used in the commission of genocide, crimes against humanity and certain war crimes. This provision sets a clear benchmark to allow States parties to effectively and consistently implement these prohibitions.”
There is nothing in that language that can be reasonably be interpreted to restrict domestic gun ownership within the United States.
Newsmax describes describes U.N. efforts as including measures such as creating a national gun registry; mandating control of firearms and ammunition; regulating the manufacture of gun parts; and limiting stores’ ability to sell firearms.
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The National Rifle Association is concerned that, under the guise of complying with international agreements,
“ the Obama State Department has been quietly moving ahead with a proposal that could censor online speech related to firearms. This latest regulatory assault, published in the June 3 issue of the Federal Register, is as much an affront to the First Amendment as it is to the Second…
“For the past several years, the Administration has been pursuing a large-scale overhaul of the International Traffic in Arms Regulations (ITAR), which implement the federal Arms Export Control Act (AECA). The Act regulates the movement of so-called “defense articles” and “defense services” in and out of the United States. These articles and services are enumerated in a multi-part “U.S. Munitions List,” which covers everything from firearms and ammunition (and related accessories) to strategic bombers. The transnational movement of any defense article or service on the Munitions List presumptively requires a license from the State Department. Producers of such articles and services, moreover, must register with the U.S. Government and pay a hefty fee for doing so. Also regulated under ITAR are so-called “technical data” about defense articles. These include, among other things, “detailed design, development, production or manufacturing information” about firearms or ammunition. Specific examples of technical data are blueprints, drawings, photographs, plans, instructions or documentation.
“In their current form, the ITAR do not (as a rule) regulate technical data that are in what the regulations call the ‘public domain.’ Essentially, this means data ‘which is published and which is generally accessible or available to the public’ through a variety of specified means. These include ‘at libraries open to the public or from which the public can obtain documents.’ Many have read this provision to include material that is posted on publicly available websites, since most public libraries these days make Internet access available to their patrons.
“The ITAR, however, were originally promulgated in the days before the Internet. Some State Department officials now insist that anything published online in a generally-accessible location has essentially been “exported,” as it would be accessible to foreign nationals both in the U.S. and overseas.
“With the new proposal published on June 3, the State Department claims to be ‘clarifying’ the rules concerning ‘technical data’ posted online or otherwise ‘released into the public domain.’ To the contrary, however, the proposal would institute a massive new prior restraint on free speech. This is because all such releases would require the ‘authorization’ of the government before they occurred. The cumbersome and time-consuming process of obtaining such authorizations, moreover, would make online communication about certain technical aspects of firearms and ammunition essentially impossible. Penalties for violations are severe and for each violation could include up to 20 years in prison and a fine of up to $1 million. Civil penalties can also be assessed. Each unauthorized ‘export,’ including to subsequent countries or foreign nationals, is also treated as a separate violation.”
The proposal is being challenged. It will not be the last attempt to do an end-run around the Bill of Rights.