By Paul Gallant, Sherry Gallant, Alan Chwick, and Joanne D. Eisen
New York, NY --(Ammoland.com)- One of the constant mantras of U.S. firearm-prohibitionists is “close the loophole!”
There’s seemingly a loophole in every restrictive firearm law. And although these demands are presumably for our safety, the intent is to make lawful firearm acquisition and possession more difficult for ordinary citizens.
However, there is one very real loophole that almost no one talks about, or even recognizes. And it lies in the U.S. Constitution. And it’s one that most U.S. gun-owners blithely refuse to believe, even when it’s pointed out to them. To most gun-owners, the Second Amendment is unbreachable, especially when it comes to international treaties like the forthcoming Arms Trade Treaty (ATT).
Article II, Section 2, of the U.S. Constitution states: “He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur….”
We constantly come across comments from American gun-owners, in Internet blogs and in response to articles, that the U.S. Senate will never be able to pass a Treaty such as the ATT. The argument made is, invariably, that, because 2/3 of the Senate is required to ratify a treaty, one like the ATT will never be ratified by the U.S.
Therefore, we are told we can all rest assuredly that the protections provided by our Second Amendment would not be in jeopardy, even if an ATT were to be enacted.
This —the 2/3 Senate majority— is our Constitution’s “loophole.”
And it could be the means to nullify our Constitution. The loophole relates to the process of “norming”, a concept which our Founding Fathers never had to deal with, or even envisioned, when they wrote the law of the land that guarantees us the right to private firearm-possession, and all those other rights enumerated in our Bill of Rights.
In his paper “The Second Amendment and Global Gun Control, Joseph Bruce Alonso, an attorney in Georgia, shows in great detail, just how the process of norming can create a mechanism to erase the freedoms guaranteed by our Constitution. He does not address the Arms Trade Treaty because his paper was written prior to the very notion of an ATT.
He discusses the UN’s attempts at global firearm-prohibition, and the multitude of legal conflicts this brings about. Alonso acknowledges that, “In the United States, acceptance of a treaty is ratification by the Senate. By signing, a sovereign state does indicate an intention to ratify or at least consider and abide by a treaty….” But, he also notes:
“if a treaty conflicts with the United States Constitution, the United States Supreme Court will hold that the treaty is not binding because it violates the United States Constitution. If the same conflict came before an international court, the international would hold that the treaty was binding. These competing legal systems are on a road to conflict.”
Then, Alonso adds the following:
“The United States Constitution clearly anticipates the United States federal government entering into treaties, but does not appear to have anticipated the extent to which treaties would have domestic ramifications….[T]he desire to end all private gun ownership worldwide is a final goal of many international law actors. This desire is often hidden or lightly shrouded, but is sometimes flaunted….Based on the intensity of disapproval aimed at the United States, one expects…politics will push in the direction …to end private gun ownership….The ways in which the rights of private United States gun owners could be infringed are endless. Clearly, a final goal of eliminating private gun ownership [the UN’s agenda] would violate the Second Amendment.”
So, the biggest obstacle to overcome for global firearm-prohibition to succeed is our Second Amendment. Alonso provides numerous scenarios that could plausibly occur to get around this:
“The first way is the possibility that the President of the United States signs [a treaty]…Signature by a United States President would indicate to the international community that the United States intends to abide by the gun control laws, with or without ratification by the Senate.”
Note that final phrase, “…with or without ratification by the Senate.”
So much for a 2/3 Senate majority vote needed in order for U.S. citizens to be subject to the provisions of a Treaty meant to disarm them—along with the rest of the world!
According to David Kopel, Paul Gallant and Joanne D. Eisen, in their paper “The Human Right of Self-Defense” (Brigham Young University Journal of Public Law, Vol 22, Number 1 (p. 56-57):
“While it is unlikely that a severely restrictive international gun control treaty could be ratified by two-thirds of the United States Senate, there are many mechanisms by which unratified treaties can work their way into U.S. law. For example, some eminent international disarmament experts have taken the position that the president of the United States may announce that a treaty has entered into force, and thereby become the law of the United States even if the U.S. Senate has never voted to ratify the treaty [emphasis ours]. The United States Supreme Court has cited unratified treaties (and even an African treaty), and various contemporary foreign law sources, as guidance for interpreting United States constitutional provisions. Likewise, other scholars, writing in a UN publication, argue that United Nations gun control documents (notwithstanding the fact that the documents, on their face, have no binding legal effect) represent “norms” of international law.”
Alonso further addresses the problem of conflict between international treaties and the U.S. Constitution. The role of the Vienna Convention on the Law of Treaties in resolution of such conflicts is of pivotal importance when a case is presented in international courts. Alonso concludes: “…an American citizen who is protected by the Second Amendment could not assert this right as a protection in an international court.”
Kopel, Gallant and Eisen elaborate further on that point in their paper: “Attorney Joseph Bruce Alonso has detailed how the theories being developed by IANSA [International Action Network on Small Arms] and its allies would allow American manufacturers, governments, or gun owners to be sued in foreign courts.”
That means you —or any of us— could be prosecuted by an international court with all our protections asserted in the Bill of Rights thrown down the drain!!
How many believe that, in this firearm-hostile world, any of us would prevail in such a lawsuit?!
Americans had better pay heed to this very real Constitutional loophole, because those who don’t may be in store for a very rude awakening! Times have changed since the Founding Fathers drafted our unique document called The Constitution of the United States, and it appears clear that proposed international law (e.g. an ATT) may infringe upon the American Right to Bear Arms, and all the other rights guaranteed within it, without any need for a Senate vote.
Is this a potential loophole that President Obama—our country’s most anti-gun president—might take advantage of?
Read the follow up Article: Arms Trade Treaty – The Hell With Congress
About the authors:
Dr. Paul Gallant and Dr. Joanne D. Eisen practice optometry and dentistry, respectively, on Long Island, NY, and have collaborated on firearm politics for the past 20 years. They have also collaborated with David B. Kopel since 2000, and are Senior Fellows at the Independence Institute, where Kopel is Research Director. Most recently, Gallant and Eisen have also written with Alan J. Chwick. Sherry Gallant has been instrumental in the editing of virtually all of the authors’ writings, and is immensely knowledgeable in the area of firearm politics; she actively co-authored this article.
Almost all of the co-authored writings of Gallant, Eisen, Kopel and Chwick can be found at http://gallanteisen.incnf.org/, which contains more detailed information about their biographies and writing, and contains hyperlinks to many of their articles. Their recent series focusing on the Arms Trade Treaty can be found primarily at http://gwg.incnf.org/ . Respective E-Mail addresses are: PaulGallant2A@cs.com, JoanneDEisen@cs.com, AJChwick@iNCNF.org, Sherry.Gallant@gmail.com