Arms Trade Treaty – The Hell With Congress

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

Manasquan, NJ –-(Ammoland.com)- There is a widespread misunderstanding on the part of American gun-owners, evidenced in gun blogs and in commentaries on articles dealing with the Arms Trade Treaty (ATT).

The crux of this misunderstanding is that since there are checks and balances in our Constitution, and since the Constitution clearly states that ratification of a treaty can only occur “provided two thirds of the Senators present concur,” this is almost impossible to come about.

Therefore, we will never be subjected to the constraints of, and penalties for, violations of an Arms Trade Treaty.

Most of those who voice this sentiment do so vehemently, and with all certainty that this is a fact, rather than mere conjecture.

What they refuse to acknowledge is that when it comes to words —even those in our sacred blueprint for a representative government, the Constitution— nothing is actually all black and white; when it comes to words —especially words that were penned more than 2 centuries earlier when the world was very different— it will almost always be possible to find grey areas that can be breached to achieve a desired political goal.

The fact is that our Constitution does not protect us against the growing customary international law or the growing norm of global civilian disarmament.

There are many references in the literature which address this situation. We will cite only two: “The Second Amendment and Global Gun Control,” by Joseph Bruce Alonso (Journal on Firearms & Public Policy, Vol. 15), and “The Human Right of Self-Defense” by David B. Kopel, Paul Gallant & Joanne D. Eisen (Brigham Young University Journal of Public Law, Vol 22, Number 1).

These two papers provide carefully documented proof that ratification of an international treaty can occur —and can be made binding to U.S. citizens— without any Senate action at all!

But this is not simply our opinion. The hyperlinks below are provided for convenience so that any reader can judge for him- or herself as to the veracity of this thesis as part of current international law.

Alonso notes that “There are a variety of ways that these [international] gun control laws could affect the rights and obligations of parties within the United States.”

He enumerates some of the mechanisms which might come into play to effect such a scenario:

• “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.”
• “A second way these gun control laws could affect United States parties is in the event that gun control becomes a customary international law. Even if the United States did not sign on to either treaty, if the United States began to abide by the treaties, the United States may, in effect, be consenting to the treaties becoming customary international law. In the eyes of an international court, the United States, by following the treaties, is consenting to be bound by the treaties in the future. To avoid accidental consent, the United States should expressly state that as a nation, the United States does not consent to the gun control treaties and that any activity consistent with the treaties is not intended to recognize the treaties’ legal status. If the United States does not make such an express statement to the international community, the United States might, arguably, be expected to maintain any and all gun control measures that the treaties require.”
• “A third way the gun control measures could affect United States parties is through nonconsensual customary law. Nonconsensual customary international law may arise as a result of international practice. This international practice may be evidenced by events not approved by the United States but eventually held binding on the United States….In many ways, the international community is in agreement on gun control, with the exception being the United States. The respect and adherence by numerous countries to strict gun control adds weight to the notion that a common understanding of how sovereign states must deal with private gun ownership can be established with or without every country’s consent.”

Not only are there grey areas in the treaty ratification process, but they are also present in the ways in which our country can be dragged into war.

According to the U.S. Constitution, Section 8, “The Congress shall have Power To….declare War….” However, in the course of our research, we spotted an item printed in the March 8, 2012 edition of the Canada Free Press. An article entitled Obama Admin Cites Int’l Permission, Not Congress, as ‘Legal Basis’ For Action in Syria stated: “Under question from Sen. Sessions at a Senate Armed Services Committee hearing today, Defense Secretary Leon Panetta and Joint Chiefs of Staff Chairman Gen. Martin Dempsey indicated that ‘international permission,’ rather than Congressional approval, provided a ‘legal basis’ for military action by the United States.”

The video above includes the interview, and the replies from Panetta and Dempsey to Sen. Jeff Sessions (R-AL), are nothing short of mind-boggling to hear! In response to Panetta and Dempsey concerning the issue of Congressional approval, Sen. Sessions replied incredulously: “Well, I’m almost breathless about that. Because what I heard you say was we’re going to seek international approval, and you will come and tell the Congress what we might do….”

The fact is that the U.S. Constitution was written two centuries ago, and we live in a very different world. Times change, and there are many things that our Founding Fathers never anticipated when they wrote the Constitution onto parchment with quill and ink. It is obviously now possible to be forced into a war without the approval of Congress.

And it is also now possible to be forced to abide by the terms of a treaty —like the ATT— without Congressional approval.

According to Kopel, Gallant & Eisen (p. 54-55):

“Having been selected as Special Rapporteur by the old Human Rights Commission, [Barbara] Frey delivered her final report to the new Human Rights Council on July 27, 2006. On August 24, 2006, the UN Human Rights Council’s subcommission on the Promotion and Protection of Human Rights endorsed the Frey report, and announced that all national governments were required by international human rights law to implement various listed gun control provisions; the subcommission recommended that the full Human Rights Council also adopt the report and issue a similar mandate. Of course the subcommission has little power to enforce its wishes directly, but the declaration gives national government officials, including courts, considerable support to promote restrictive gun laws which are, according to the UN, mandated by international law. The full Human Rights Council is scheduled to take up the issue, and indications at the time of this writing suggest that the full Council will ratify most or all of Frey’s report. The Chairman of the full Human Rights Council has already announced his enthusiastic support for the Frey Report, the subcommission’s adoption of the report, and the prospect of using the Human Rights Council to advance a worldwide gun control mandate. The Frey Report, then, is not simply a scholarly paper that will be filed away in a United Nations library. It is an effort to establish a new norm of international human rights law, and this effort to establish the new norm is supported by the United Nations Human Rights Council, as one aspect of the UN’s far-ranging support for restrictive and confiscatory firearms policies (emphasis ours).”

The Frey report should be required reading for all Americans – gun-owner and non-gun-owner alike, for there is every likelihood that the ATT, in some form, will be enacted! And her report—which represents the UN’s view and the new world “norm,” is one of the scariest documents one can find to describe what our America would look like if the ATT proponents have their way!

The UN has been able to twist the individual human right of self-defense into a human rights abuse against a perpetrator. In the words of Barbara Frey:

“Self-defence is sometimes designated as a ‘right’. There is inadequate legal support for such an interpretation. Self-defence is more properly characterized as a means of protecting the right to life and, as such, a basis for avoiding responsibility for violating the rights of another. No international human right of self-defence is expressly set forth in the primary sources of international law: treaties, customary law, or general principles.”

So much for our Constitution and its Bill of Rights!

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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 https://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 athttps://gwg.incnf.org/ . Respective E-Mail addresses are: [email protected], [email protected], [email protected], [email protected]