In an abrupt about-face from last summer, and before the last ballots in the presidential contest had even been counted, the newly re-elected Obama administration signaled on Nov. 7 its willingness to finalize a treaty providing for the regulation of conventional arms by the United Nations.
Specifically, the U.S. voted with 156 other countries to convene a conference to finalize a draft treaty designed to regulate the international small arms trade. The tally was 157 for the conference, none against, and 18 abstentions.
Debate over the controversial draft had been stalled since last July when President Obama, in the heat of the presidential campaign, withdrew U.S. support for it. Other nations, including Russia, also expressed concerns.
Now, with the election over, the treaty is back on the table. The conference is scheduled to take place next March 8-18.
Critics of the treaty, including the National Rifle Association and a bevy of lawmakers from both parties, say it could impose international regulations on domestic small arms, including hunting rifles, that violate the Second Amendment to the U.S. Constitution.
Any treaty would have to be ratified by the U.S. Senate.
What the critics say
The draft text is at the core of the controversy because the just-approved resolution calls it the starting point for the revived talks; opponents say it is also the starting point of the international regulation of domestic gun sales and ownership.
According to the resolution’s language, nations are “determined to build on the progress made to date towards the adoption of a strong, balanced and effective Arms Trade Treaty (ATT).”
Treaty supporters say the draft language absolutely protects the Second Amendment rights of U.S. citizens. For example, it reaffirms “the sovereign right and responsibility of any State to regulate and control transfers of conventional arms that take place exclusively within its territory pursuant to its own legal or constitutional system.”
Writing on a Heritage Foundation blog last July, Dr. Ted Bromund also dismissed the claim that the proposed treaty was a gun grab, but, he added, that didn’t mean there weren’t valid domestic concerns, which he described as more akin to “a death by a thousand cuts.”
While the U.S. has crafted a check list of “red lines” as a condition for its support, Bromund wrote, those are open to interpretation. Chief among the red lines is the U.S. insistence that “there will be no restrictions on civilian possession or trade of firearms otherwise permitted by law or protected by the U.S. Constitution. There will be no dilution or diminishing of sovereign control over issues involving the private acquisition, ownership, or possession of firearms, which must remain matters of domestic law.”
But, Bromund wrote, that begs the question: Just what is “permitted by law or protected by the U.S. Constitution?” More specifically, he pointed to four potential problem areas.
First, he questioned the ATT’s transfer requirements.
“The most recent draft text states, for example, that the ATT will apply to ‘all international transfers of conventional arms’ but then goes on to define ‘international transfers’ as ‘the transfer of title or control over the conventional arms,’” he wrote. “Does this mean that any transfers, including domestic ones, count as international and are thus subject to the treaty’s provisions?”
Likewise, he observed, there were similar concerns related to the potential reporting requirements of the treaty and thus to the possible creation of a U.N.-based gun registry.
“If it is to be true to its published red lines, the U.S. cannot accept any of this,” Bromund wrote.
In addition, he continued, most major U.S. arms manufacturers have an international financing, insurance, and parts and components chain, and so the ATT could become a means for foreign countries to pressure U.S. firms to exit the market, reducing the ability of Americans to make effective use of their firearms rights.
Third, Bromund wrote, the ATT will continue to be finessed at review conferences, where the U.S. goal is to develop “best practices” for its implementation.
“Similarly, if President Obama were to sign the ATT but not submit it to the Senate for ratification, the U.S. would hold itself obligated to ‘refrain from acts which would defeat the object and purpose’ of the ATT,” he wrote.
Fourth, he said, the entire process will spawn endless constitutional interpretations and reinterpretations.
“Finally, the ATT is part of a process that will inspire judges and legal theorists who believe that the Constitution needs to be reinterpreted in light of transnational norms,” he wrote. “This is the most important problem of all, though it is broader than the ATT.”
The National Rifle Association has weighed in with its concerns as well.
“Just as NRA warned would happen, following the election, the Obama administration has moved forward with its plans to support a United Nations Arms Trade Treaty,” the organization posted on its website Nov. 9. “... Undeterred by the failure of July’s U.N. Conference on the ATT, in recent months the global civilian disarmament groups and their patron governments have been working nonstop to revive the treaty.”
Among the draft’s most onerous requirements are those intending to burden and keep records on gun owners, the NRA stated. Like Bromund, the group pointed to the potential of an international small arms registration requirement.
“The draft states that ‘Each State Party shall maintain national records… Such records may contain… end users’ and that ‘Records shall be kept for a minimum of ten years,’” the NRA stated. “If this obligation were to be enacted and followed, it could result in registration for any American that purchases an imported firearm.”
Ammunition control also remains within the scope of the treaty, the NRA cautioned.
“The draft states, ‘Each State Party shall establish and maintain a national control system to regulate the export of ammunition for conventional arms,’” the group stated. “In the explanation of its vote in favor of the resolution, Mexico made clear that it will continue to pursue its goal of including ammunition within the scope of the treaty.”
What’s more, the NRA continued, Mexico is trying to undermine a U.N. consensus requirement for the treaty’s text, a requirement the NRA asserts is necessary to protect the U.S. from a U.N. tyranny of the majority.
The treaty also serves as a slippery slope of sorts, the NRA warned, meaning it would serve as the foundation of ever more regulations in the future.
“Further, despite the already restrictive wording of the draft treaty, some global gun controllers have insisted it doesn’t go far enough,” the NRA stated. “The umbrella ATT group known as the Control Arms Campaign (which includes Amnesty International, the International Action Network on Small Arms and Oxfam International, among others) states that an ATT ‘must include all weapons, all transfers, and all transactions,’ and has constructed a wish list to make the treaty more prohibitive.”
In the past, the NRA observed, Amnesty International has called for sporting and hunting firearms to be included within the regulatory framework.
“The NRA, our four million members and the tens of millions of law-abiding Americans who own firearms will never surrender our right to keep and bear arms to the United Nations,” said Chris Cox, executive director of the NRA’s Institute for Legislative Action, in July. “That is why the United Nations Arms Trade Treaty has been met with the full opposition of the NRA.”
The November post said the organization would continue its vigorous opposition, and the NRA observed that a majority of U.S. Senators and 130 Representatives had made clear to Obama and Secretary of State Hillary Clinton that they would oppose any treaty encompassing civilian arms.
The Senate letter to Obama was signed by 51 senators and sent on July 26. Sen. Jerry Moran (R-KS) spearheaded the effort to organize congressional opposition.
Moran said he had garnered enough opposition to block the treaty from Senate passage, since treaties require approval of two-thirds of the senators present to be ratified.
“As the treaty process continues, we strongly encourage your administration not only to uphold our country’s constitutional protections of civilian firearms ownership, but to ensure – if necessary, by breaking consensus at the July conference – that the treaty will explicitly recognize the legitimacy of lawful activities associated with firearms, including but not limited to the right of self-defense,” the senators wrote. “As members of the United States Senate, we will oppose the ratification of any Arms Trade Treaty that falls short of this standard.”
Moran said the U.S. could not afford to allow the United Nations to infringe upon U.S. sovereignty and the rights of American citizens.
“Today, the Senate sends a powerful message to the Obama Administration: an Arms Trade Treaty that does not protect ownership of civilian firearms will fail in the Senate,” he said then. “Our firearm freedoms are not negotiable.”
Moran pointed out that even participating in treaty negotiations reversed the positions of the two previous American administrations.
As the number indicates, the letter was signed by a number of Democratic lawmakers as well as Republicans, including Max Baucus (D-MT), Mark Begich (D-AK), Bob Casey (D-PA), Joe Manchin (D-WV), Ben Nelson (D-NE), Mark Pryor (D-AR), Jon Tester (D-MT), and Jim Webb (D-VA).
Wisconsin Republican Sen. Ron Johnson signed the missive; the Badger state’s outgoing Democratic senator, Herb Kohl, did not sign the document.
The letter not only laid out what the senators considered to be their most significant concerns but made specific suggestions for amending the draft in ways that could make it acceptable.
Among the concerns, they wrote, was the treaty’s definition of “international arms transfers” as including transit across national territory, and a requirement that signatories monitor and control arms in transit and to domestically enforce the treaty by prohibiting the unauthorized transfer of arms from any location.
All those things, they wrote, represented an unacceptable expansion of federal power.
The senators raised the matter of an international gun registry as well, observing that all arms “that transit their territory” would be included. Thus, they observed, any firearm entering the country or simply being shipped across the country – such as from a manufacturer to a retailer – would presumably have to be registered with the U.N., and the identity of end users would be included.
Then, too, the senators wrote, the treaty would require nations to “take all appropriate measures” to prevent the diversion of imported arms into the illicit market or to unintended end users, a requirement they argued called for additional federal laws and regulations.
“This clause appears to create a presumption in favor of the adoption, at the federal level, of further controls on firearms,” they wrote. “We are concerned that, in this regard as well as in others, the treaty will create an open-ended obligation that will in practice be defined by international opinion, and will be used to push the U.S. in the direction of measures that would infringe on both Second Amendment freedoms and the U.S.’s sovereignty more broadly.”
The senators said the treaty needed to explicitly include certain guarantees before they could support it.
Critically, they wrote, the treaty needed to recognize the legitimacy of hunting, sport shooting, and other lawful activities related to the private ownership of firearms, including the collection and display by individuals and museums of military antiques.
In addition, they said the treaty should not encompass the manufacturing, assembly, possession, transfer or purchase of small arms, light weapons, ammunition or related materials that are defined by domestic law by national authority as legal for private ownership, and it should foreclose any open-ended obligations that could imply any need to impose controls with domestic effect.
Finally, the senators wrote, the treaty should recognize that self-defense is a human right.
“Third, the Draft Paper is based in part on recognizing the inherent right of all states to individual or collective self-defense,” the senators wrote. “We certainly agree that this right is inherent, at least, in all democratic and law-abiding states. But we also believe that the right of personal self defense is a human right that is inherent in the individual. U.N. organizations, by contrast, have in the past argued that gun control is mandated by international human rights law, and that the right of self-defense does not exist. The treaty should clearly state that any assertion of the inherent right of all states to individual or collective self-defense cannot prejudice the inherent right of personal self-defense.”
Richard Moore may be reached at firstname.lastname@example.org