The Arms Trade Treaty & Our Constitution’s Loophole

By Paul Gallant, Sherry Gallant, Alan Chwick, and Joanne D. Eisen

Heavily Armed United Nation "Peace Keepers"
Heavily Armed United Nation "Peace Keepers" want you to be "reasonable" lay down your arms under ATT.
AmmoLand Gun News
AmmoLand Gun News

New York, NY –-( 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, 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 . Respective E-Mail addresses are: [email protected], [email protected], [email protected], [email protected]

  • 27 thoughts on “The Arms Trade Treaty & Our Constitution’s Loophole

    1. "provided two thirds of the Senators present concur" is not the same as a 2/3 majority. Harry Reid is in the habit of calling "pro forma" sessions. He did this to prevent G. W. Bush from making recess appointments.

      A "pro forma" session could consist of only a few picked Democommunists. It does not state that a quorum be present, nor that the Senate be in regular session. It simply means that there be three Senators present and that two of them agree on ratification.

      The Founders wrote the Constitution based on the unreasonable belief that honorable men would serve in the three branches. Reality shows all three flawed today.

    2. The Constitution said, We the People, noe me the president, or we the UN. THE CONSTITUTION is not to be changed for any reason. It was said, once freedom is lost, it is lost forever. People of America, need to wake up, and stand true to our rights. These rights were bought with blood of our founding Fathers, oue great great grandparents, grandparents, our parents, and ALL who served and faught for this nation. We need to tell our government to KEEP THEIR HANDS OFF OF OUR CONSTITUTION AND RIGHTS.

    3. If I understand the article, an American citizen could be prosecuted in an international court for violating an international law and proposed (to U.S.) but not ratified by the senate law. However, I would think, it would have no authority in the U.S. and the U.S. would certainly not authorize a citizen be transferred to a foreign country for prosecution. The intent of the senate ratification is clear.

    4. Article VI – Debts, Supremacy, Oaths

      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.


    5. Anyone, and I mean any one, who is counting on
      Constitutional Restraints to prevent this nightmare scenario from happening have been asleep at the wheel for the past three plus years. From: "We've got to pass the bill in order to see [find out?] what's in it", to the numerous, "We Can't Wait(s)" bypassing of clearly spelled out constitutional requirements (I give you the "Senate Recess 'Appointments' " by the POSOTUS (Think about it), what in the Sam Hill makes you believe "He" won't circumvent the Constitution once again? When these words become illegal, I'll become a criminal: "I may become an 'Enemy of the State', but never of the people". Remember this: "Always aim just below the blue helmet, no matter what color it is".

    6. Treaties and Rights

      The "Supremacy Clause" of the U.S. Constitution is contained in Article VI:

      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.

      As the Constitution was being constructed at the Philadelphia Convention of 1787, the experience of the previous few years made it abundantly clear that it was essential to establish the central government’s power to conduct foreign affairs. It was necessary that the United States speak with one voice in matters of international diplomacy. To have 13 individual and separate states each conducting its own foreign policy, making its own treaties and sending and receiving its own ambassadors would have been an invitation to chaos; to have 50 states doing so today would be the quintessence of insanity.

      But the powers delegated to the federal government to conduct foreign affairs — including the treaty-making power — are carefully limited and checked by the Constitution. The Framers did not present the federal government with vast, unenumerated, or unaccountable powers in either domestic or foreign policy. It was certainly never intended, as Dulles and others of his ilk insist, that the federal government could use the treaty-making power to evade constitutional limits upon its powers. And it is the purest absurdity to believe that statesmen who had just wrested our nation’s independence from a globe-spanning empire would create a treaty-making provision through which our independence could be signed away.

      Addressing the scope and limits of the Constitution’s treaty power, James Madison — often described as the father of the Constitution — said the following:

      I do not conceive that power is given to the President and the Senate to dismember the empire, or alienate any great, essential right. I do not think the whole legislative authority have this power. The exercise of the power must be consistent with the object of the delegation.

      Thomas Jefferson emphatically agreed with Madison’s depiction of the limits placed upon the treaty power. If the treaty-making power is "boundless," warned Jefferson, "then we have no Constitution." On another occasion, Jefferson elaborated:

      By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated…. It must have meant to except out of those the rights reserved to the states; for surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way. [Emphasis added.]

      Alexander Hamilton was in perfect agreement with both Madison and Jefferson. "The only constitutional exception to the power of making treaties is, that it shall not change the Constitution…. On natural principles, a treaty, which should manifestly betray or sacrifice primary interests of the state, would be null." (Emphasis added.)

      The observations of Jefferson and Hamilton are particularly valuable in light of the danger posed by the ICC treaty. Since the president and Senate are strictly and explicitly forbidden by the Constitution to deny the protections and immunities guaranteed by the Bill of Rights, they have no authority to conclude a treaty that would have the same result. To paraphrase Hamilton, any such treaty signed by the president and ratified by the Senate would, on "natural principles," be null and void.

      Do not let these political ‘Prostitutes’ obfuscate the ‘TRUE’ meaning and intentions from the Framing Fathers.

      Pass this around….

    7. The Second Amendment can't be subverted. All rights are bestowed on us by our creator and no man or government can take them away (unless we let them.) The Constitution is the Supreme law of the land and can only be changed through the amendment process. A treaty can't violate any part of the Constitution or any right. We can be apathetic and lazy and not do our duty to defend the Constitution but the Constitution still exists even though we no longer grow men with balls!

    8. The lefties dont understand the american gun owner. 90% will never give up there guns with out a war. No one has ever defeated americans. We have the largest armed forces in the world, yes over 100 million known legal gun owners. Look at each state, Michigan sells 600k hunting licenses every year.

    9. There are no loopholes in our constitution,thats why they called obama a constitutional scholor, he got his degree by cheating his way thru harvard as an illegal alien and a muslim terrorist, the socialists love himj but if he does fly the filthy flag of islam over OUR country he will kill all of them and us. any who won't bow to his filthy god allah will be killed or enslaved. and thats from their book of filth the koran..death to all socialists and muslims, restore the republic, vote for Ron PAUL……


    11. They can pass a treatie – but not one that nullifies the consititution. There would be an uprisal and that 2/3rds of Congress wouldn't happen either. The right to bear arms is what keeps us free – not make us free. We know it and you know it. You can only take the freedoms we give away – we won't be giving that one away.

    12. We need legislation to protect the united States sovereignty from the United Nations agendas as well as any other foreign influence brought to bear on ANY part of our constitutions BILL OF RIGHTS . I am going to call my House Representative first thing in the morning . I suggest all who read this and pass it6 on to all who doesn't . Apparently we have to act fast . The legislation should also have impeachment as a means to censor anyone who does enter treaties that breach the BILL OF RIGHTS .

    13. At this time in our history the reality of the current POTUS attempting to dissolve our 2nd Amendment with the help of our Secretary of State is an unfortunate reality.

      The global trade in conventional weapons – from warships and battle tanks to fighter jets and machine guns – remains poorly regulated. No set of internationally agreed standards exist to ensure that arms are only transferred for appropriate use.

      Many governments have voiced concern about the absence of globally agreed rules for all States to guide their decisions on arms transfers. That is why they have started negotiating an Arms Trade Treaty. see this article…United Nations Office for Disarmament Affairs!

    14. If it violates the Constitution, it is unlawful.

      If it voids the Constitution, this nation no longer exists and the "treaty" is invalid anyway.

      God grants the Right to self-protection and anything that would subvert that is at their peril and to the death.

    15. I quote: "And it could be the means to nullify our Constitution."

      Let me get this correct The Constitution grants authority for treaties, yet the treaty itself can violate the Constitution which gives the treaty it's force of law. Sounds circular to me? It is like sitting on a branch and attempting to cut the tree off. Ludicrous to me. The Constitution is what gives our Executive branch, Congressional branch and Judicial branch of government their authority. These branches do not have the authority to sever the tree to which they derrive their just powers. If they do so it becomes quite evident that such powers are autonomous from any law or covenant with those to whom they govern. They then can legislate in any matter whatsoever. Their true powers come from the consent of those governed. And just as under the Magna Carta it would present the grounds for lawful rebellion to such powers. It is a breach of Covenant which is the most sacred of trusts held. If the government is not obligated to govern within the terms of the covenant then those governed are under no obligation to adhere to the terms of the Covenant either. The entire Covenant becomes null and void and justifies lawful rebellion simply because there is NO LAW, NO COVENANT, NO CONSENT… unless of course you individually consent. I think we have forgotten the concept of Covenant and what it entails upon a society as a whole. If you do this we will do that? They are operating outside of the Covenant of Law and are considered Covenant or Law breakers plain and simple…


    17. oops, disregard previous comment. The author pointed this out. This is something to be concerned about, just as legislation is concerning. However, calling this our constitution's loophole is just as misleading as calling private sales a gun show loophole.

    18. The author has little understanding of constitutional law. Just as the legislature is granted authority to pass statutes, the president and the senate may enter into treaties. However, just like with statutes, those treaties may not violate other parts of the constitution, such as the second amendment.

    19. The U.S. Constitution is the Greatest Freedom Document ever written. Our Government has been finding ways around our Constitution since George Washington became our 1st President, and yet he himself circumvention our Constitution when he Declared a Proclamation to use the Militia under his command against West Pennsylvania, Virginia, and the Carolina's and their citizens over their protest against U.S. tax on Whiskey. Since that time the Constitution has been circumvented by Presidents under Presidential Powers under a Declaration of A State of Emergency by the President.

    20. I guess that this article does point out how the second amendment can be subverted, but if our representatives honored their oath to obey and protect the constitution, you could never get that 2/3 vote.

      That goes for the president also. Seems to me that enough has been done by all branches of government, both sides of the aisle, for a huge impeachment for violation of oath of office and crimes against their constituents.

      Unfortunately that would take a nation of critical thinkers that would take action.

      Maybe so….. Ron Paul 2012

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