Can the U.N. Gun Treaty Trump the Constitution?

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Can the U.N. Gun Treaty Trump the Constitution?, iStock-602335156

PHOENIX, AZ –-( Can the U.N. Gun Treaty Trump the Constitution?

It shouldn’t, and the U.S. Senate won’t ratify it (67 votes would be needed), but too many people in government would like to see international control over us, a main goal of the U.N. I’m not happy with the state of affairs I’ve described below, but all this will come to play and we don’t want to be blindsided.

The bottom line is that the treaty will hold sway to the extent those in power can manage it. The media may lead the charge to hold the treaty out as a proper norm and to declare America out of global compliance, even though it’s only a proposal. And it gets more complicated.

Even if Hillary or Mr. Obama “sign” the proposed treaty, that has no legal weight, and it does not mean the treaty is signed and adopted and a matter of law (though I suspect the “news” media and the left may claim otherwise, forever). They’ll invoke the Vienna Convention (below) for support.

Remember, the U.N. General Assembly must get the proposal and vote on it, though there is no number of votes needed to pass it per se. It exists in the ether forever, a convenient way to run an organization, eh?

We find out what’s actually in the secret thing on July 27, if all goes as planned. It’s not impossible that the negotiators will fail to come to an agreement and nothing will be released. That sort of politicking is always a tool.

For now, we wait.

The Facts

Could the U.N. Arms Trade Treaty, now being discussed in New York City with an expected wrap-up date on July 27, 2012, really infringe the Second Amendment?

Maybe so.

My research shows that both the law and precedent, on whether a properly ratified treaty or the Constitution are in ultimate control of an issue, are scant and not dis-positive. It depends on the actual treaty language in question, what it seeks to control, the part of the Constitution called into question, the claims presented by an aggrieved party, and more. Virtually no language from the U.N. effort is publicly known at this time.[1] The language of the Constitution, Article VI, is ruefully less than crystalline on this point.[2]

Constitutional scholar Dave Kopel points out that: “The general question of to what extent treaties can be ‘equal’ to, or change, the Constitution is very unclear. Constitutional scholars spend a lot of time arguing about it, and there is no settled, general answer. The Supreme Court isn’t about to overrule Missouri v. Holland (described below), but at least one recent decision by the Court indicates that there’s a majority that regards the Missouri principle skeptically, and may chip away at it.”

Although you and I may want to believe that logic and common principle should rule, in the rarified air of such matters, complex legal precedents and reasoning are what holds sway. Kopel cites this case for one —

State of Missouri v. Holland, U.S. Game Warden, 252 U.S. 416 (1920)

This was brought by Missouri to prevent a U.S. game warden from enforcing the Migratory Bird Treaty Act of July 3, 1918, and regulations made by the Secretary of Agriculture under it. This treaty between the U.S. and Great Britain aims to protect certain migratory birds. Missouri claims the federal statute is an unconstitutional interference with the rights reserved to the states by the Tenth Amendment and threatens the sovereign right of the State as owner of the birds within its borders.

The question raised, according to Oliver Wendell Holmes’ seven-to-two decision, is the general one of whether the treaty and statute are void as an interference with the rights reserved to the States. The decision breaks both ways, with elements that can be excerpted to support or deflate a particular point of view, unfortunately.

For example:

“It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power…” however, “The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.” The decision is worth reading, linked above. Holmes says, “No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power,” and he traces that back to Chief Justice Marshall. It’s a short and circuitous decision.

Missouri lost. The treaty and statute made under it overruled the state’s claimed sovereignty under the 10th Amendment.

The other case, Reid v. Covert, 351 U.S. 487 (1956), 354 U.S. 1 (1957) is about the jurisdiction in a court-martial murder conviction of a woman who killed her Air Force sergeant husband while in England (never a dull moment at the Supreme Court, eh?). Kopel notes that, “the military status-of-forces treaty with the UK cannot eliminate the 6th Amendment rights of American spouses of servicemen stationed in England. The case is generally regarded as standing for the principle that constitutional rights cannot be eliminated by a treaty.” The case seems to be less on point than Missouri, which is to say neither answer the question as clearly as we may wish.

Attorney Stephen P. Halbrook, Ph.D., who has argued and won three gun-related cases at the Supreme Court, says that: “Reid v. Covert clearly states that a treaty may not be inconsistent with the Constitution. The difficult question will be whether specific treaties, such as restrictions on commerce in firearms, violate the Constitution. Courts are often blind to what appears obvious from the language of the Second Amendment (surprise surprise).”

One other high-profile expert points out that, “Treaties made ‘under the Authority of the United States’ are the supreme law, and any treaty made outside of the constitutional authority would not be.” The problem there, as with the two cases cited above, is where those lines are drawn.

The NRA, an NGO (non-governmental organization) admitted to the conference, points out that at least 58 U.S. Senators are on record opposing any treaty infringement on the Second Amendment (leaving a question about the other 42), with 130 House members also opposing the scheme (with 305 unaccounted for), as of July 13. See the letters and details here:

While some of us would surely and boldly draw the lines where they are “supposed” to be, i.e., in line with our natural and historic rights, the forces aligned against the Second Amendment have no problem arguing vigorously for its destruction, regardless of any of these details, and therein lies the greatest threat we face.

Anything in the U.N. ATT that works against the RKBA, even indirectly, will be cheered by the anti-rights advocates, with their “news” media allies leading the chorus. The ATT’s rights-suppressing terms and conditions (if any) will be hailed as reasonable, common-sense gun controls with the weight of global consensus, and used to cast civil-rights supporters as Neanderthal throwbacks unworthy of civilization.

Many in Congress have already come out preemptively against any infringement in the treaty, but since we haven’t seen the language it’s impossible to say where that will fall. Would Congress object if the treaty says its goal is to help prevent crime and stop tyrants? Mr. Obama and Hillary have already voiced support for the still-secret U.N. effort.

Although the front end of a gun is supposed to protect against any tyrannical meddling, the cold-dead-fingers argument is little more than bumper-sticker rhetoric in modern times. Recall for example the Katrina debacle. Even the mere suggestion of such a thing (using gunfire to stop seemingly unconstitutional activity) could bring hellacious retribution just for the spoken words, let alone the use of force.

We’re waiting.

Alan Korwin
The Uninvited Ombudsman

Footnote [1]. According to Gun Owners of America:

“The Treaty will create a U.N.-based Implementation Support Unit (ISU) which will become an engine of gun control around the world…”

and that

“Fox News reports that, under the latest draft of the treaty, every country would be required to submit a report to the ISU outlining ‘all activities undertaken in order to accomplish the implementation of this Treaty, including… domestic laws, regulations and administrative measures.’

“Not only that, the ATT would require countries to set up their own government agencies to track any guns that could be exported. ‘Parties shall take all necessary measures to control brokering activities taking place within its territories … to prevent the diversion of exported arms into the illicit market or to unintended end users,’ the draft reads.”

Footnote [2]. Original intent, based solely on the words of the Constitution, is troubling (emphasis added):

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;

What do you think that means?

Doesn’t it say a treaty is on equal footing with the Constitution itself? (It sure seems to.)

Does it address how to resolve a conflict between a treaty and the C? (No, it does not.)

Don’t long-established rules of construction demand that new law supplants old law? (Yes, they do.)

Does this mean the C is subservient in its entirety to treaty, by the very terms of the C itself?

[full text]
Article. VI.

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.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

But Isn’t the arms treaty null and void if the Senate doesn’t ratify it?

Sure, but watch out for the Vienna Convention of 1969. As Kopel notes, this Convention was never ratified in the U.S., but “The State Department has adopted a policy of acting in compliance with it.” Sort of like government without consent of the governed. Its effect on the ATT is unknown, once again a matter of some discretion. Kopel notes, “The VC does not require signed-but-unratified states to implement a treaty. It does require a state not to do things which would undermine the treaty.”

Read it yourself. The key Articles for us are 18, 25 and 27 below (thanks for the legwork Charly).

Article 18 Obligation not to defeat the object and purpose of a treaty prior to its entry into force (emphasis added)

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or
(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

Article 25 Provisional application

1. A treaty or a part of a treaty is applied provisionally pending its entry into force if: the treaty itself so provides; or the negotiating States have in some other manner so agreed. (emphasis added)
2. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty.

Article 27 Internal law and observance of treaties

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. (emphasis added)…

1. The words of the Constitution are less than clear on whether a properly ratified treaty can override the terms of the Constitution itself. Scholars disagree on the point.

2. The two primary Supreme Court cases on the subject arrive at different results.

3. Anti-rights advocates will use anything they can in the treaty, even if it is not ratified, as a standard that should be lived up to.

4. The never-ratified Vienna Convention of 1969 can be used as a bargaining and propaganda tool against American rights.

5. This will ultimately resolve in the court of popular opinion.

We have our work cut out for us.

I’ve said it many times — maybe now is the time to make yourself more politically effective:

What, me worry?

P.S. There is nothing to fear, as the U.N.’s own Arms Conference Fact Sheet informs us (Google “UNODA”). The goals of the conference are (this is from their fact sheet):

To negotiate a legally binding instrument on the highest possible common international standards for the transfer of conventional arms.

An Arms Trade Treaty aims to address all aspects of the arms trade, including:

  • Scope – what weapons should be covered?
  • Criteria – what situations should be taken into account by an exporting country when authorizing a transfer?
  • Implementation – what actions at the national, regional and global levels are needed to make an ATT work?

The ATT will aim to:

  • Create a level playing field for global arms transfers by requiring all exporting countries to abide by similar standards for export controls
  • Fill a gap in international efforts to curb the illegal arms trade
  • Restrict the supply of weapons to human rights abusers, terrorists and organized criminal groups
  • Bring more transparency to the global arms market.

The ATT will not:

  • Interfere with the domestic arms trade and the way a country regulates civilian possession
  • Create any international gun registers
  • Lower arms regulation standards in countries where these are already at a high level
  • Ban, or prohibit the export of, any type of weapons
  • Impair States’ legitimate right to self-defense.
Alan Korwin, Publisher
Bloomfield Press
“We publish the gun laws.”
4848 E. Cactus, #505-440
Scottsdale, AZ 85254
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Scottsdale, Ariz.-based Bloomfield Press, founded in 1988, is the largest publisher and distributor of gun-law books in the country. Our website,, features a free national directory to gun laws and relevant contacts in all states and federally, along with our unique line of related books and DVDs. “After Your Shoot” for media review is available on request, call 800-707-4020. Our authors are available for interview, call to schedule. Call for cogent positions on gun issues, informed analysis on proposed laws, talk radio that lights up the switchboard, fact sheets and position papers. As we always say, “It doesn’t make sense to own a gun and not know the rules.” Visit:

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Delusion Antidote

+Alan Korwin So Alan I hope its clear that there simply is no such document as “the UN Gun Treaty” dealing with legal domestic gun sales in the US, it simply doesnt exist despite the internet pandemic of delusional claims. And its worth asking why if youre interested in taking an honest look at the treaty you insist on always identifying it by a fake name that distorts the content and purpose of the treaty. Your remarks begin with other wildly distortive and bizarre unsubstantiated claims namely that “too many people in government would like to see international control over… Read more »

Wild Bill

@Dulusional forgive me for pointing out that the article is nearly four years old, and the argument is already over. Before I checked I presumed that the ATT had raised its ugly head again. I was wrong. Silly me for getting sucked in. Every little criticism that you have leveled is entirely moot.

Delusion Antidote

Wheres my reply correcting the delusions in this article and citing the indisputable evidence?

Delusion Antidote

Theres no such document as the “U.N. Gun Treaty” dealing with legal domestic gun sales in the US, it simply doesnt exist despite the internet pandemic of delusional claims. There is an Arms Trade Treaty(ATT) which deals not with guns but with all conventional weapons of war, and addresses not legal domestic gun sales in the US but the illegal international trade of all conventional weapons of war to war-torn countries. “Scope 1. This Treaty shall apply to all conventional arms within the following categories: (a) Battle tanks; (b) Armoured combat vehicles; (c) Large-calibre artillery systems; (d) Combat aircraft; (e)… Read more »

Wild Bill

Actually Delusional, all of the things listed ((a) Battle tanks;(b) Armoured combat vehicles;(c) Large-calibre artillery systems; (d) Combat aircraft; (e) Attack helicopters; (f) Warships; (g) Missiles and missile launchers; and (h) Small arms and light weapons. ” (Arms Trade Treaty, Article 2, page 3)) are protected by our Second Amendment Civil Rights. And are purchasable from various governments (Migs are also available). These things are already owned by citizens of the U.S. That is how Hollywood makes war movies for example. I was at Wannanmacher Gun show last April and there was a vendor selling reconditioned LAW rockets, functional ammunition… Read more »

Delusion Antidote

+Wild Bill Bill please, pardner, look at your post! You just repeated yet again the delusion that “this U.N. treaty would effect our Second Amendment Civil Rights,” even after I just posted indisputable evidence to the contrary!!: “Reaffirming the sovereign right of any State to regulate and control conventional arms exclusively within its territory, pursuant to its own legal or constitutional system” (Arms Trade Treaty, 2 April 2013,Preamble, paragraph 5) So thats why this issue still matters four years later, because these kinds of evidence-free beliefs are rampant around this issue and folks like you wrongly count the ATT as… Read more »

Delusion Antidote

And my point you asked about is that folks lying about the name of the treaty eases the segue into talking about a treaty dealing with illegal international trade of weapons of war as if it is somehow a treaty dealing with legal sales of guns in the US. Dishonest folks set the stage to deceive you by first using fake names for the Arms Trade Treaty. They distort the content and purpose of the ATT when they call it the UN Gun Treaty or the Small Arms Treaty because now you tend to think it is solely or mainly… Read more »

Wild Bill

So if the treaty deal with international sales, does that mean that I will no longer be able to purchase a destroyer from the government of Portugal? Or a couple of tanks from the British government? 76s from the French? Because that would make me very unhappy.

Delusion Antidote

Its gratifying to me that you now understand that the Arms Trade Treaty addresses illegal international trade of convention weapons of war, NOT legal domestic sale of guns in the US : ) In case you forget again and revert to reiterating NRA mythology heres the citations: “The object of this Treaty is to : – Establish the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms; – Prevent and eradicate the illicit trade in conventional arms and prevent their diversion;” (ATT, Object and Purpose, p 3) “Reaffirming the sovereign right… Read more »

Blaine Dunning

Is there any UN regulation enforced in the United States? I have no doubts this will never get passed the Senate, they couldn’t even get 60 votes and never get 67


What about Article III?

William Flatt

Never underestimate the capacity for duplicitous politicians and for bureaucrats to needle out an 'interpretation' of the ATT that violates our gun rights in ways that the UN swears it would never do to us. In other words, the UN is saying "Trust us, we may be writing gun control legislation, but we would 'NEVER' violate your rights!" Yet, the whole time, the damn thing was written as a Trojan horse: leave out the draconian stuff till after your mark is tricked into signing on the line, but slip it back in immediately after. These globalist bastards are burning the… Read more »

Delusion Antidote

You claim that the absence of any evidence in the ATT that it in any way impacts 2nd amendment rights is somehow evidence that the ATT violates your 2nd amendment rights… this is the kind of “reasoning” that mires you in various grand delusions about secret cabals…

Wild Bill

I don’t know about cabals secret or otherwise, but WF and all of us have good reasons to be suspicious of the U.N. and our own dishonest governments.


No Treaty or law put in place would effect the right to bare arms. Any treaty made by the US government has to be in agreement with the Constitution. And don't forget this little statement "the right of the people to keep and bear arms shall not be infringed."

Delusion Antidote

I have read on the internets that the globalist cabal that is the UN seek to proscribe bare arms, that the Illuminati-TriLatCom-Bilderburg nexus needs the drones to wear long-sleeved shirts. After further research I unearthed the fact that for the Anti-Christ Obama looking at unsheathed pale arms is like having the True Cross obscuring his Islamocentric gaze… THEYLL HAVE TO PRY MY T-SHIRT FROM MY COLD DEAD HANDS!! : D

Wild Bill

@Delusional, he just spelled it wrong. Your having fun with it is disingenuous and unhelpful.

Delusion Antidote

Im only playing Bill, I figure he recognizes my satire of the conspiracy hound, all in good fun, no disrespect meant. : )

Wild Bill

My apologies, sir, please disregard anything else that I may have written later.