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On February 26, the American Bar Association’s Center for Human Rights issued a white paper on the U.N. Arms Trade Treaty (ATT), which concludes that “the proposed ATT is consistent with the Second Amendment.” This conclusion neglects important facts about the treaty and the processes surrounding it, which we will explore in this four-part blog series.
The white paper asserts that the Second Amendment does not apply to most weapons within the scope of the ATT (which covers, among other things, combat aircraft), and that the Second Amendment is “generally inapplicable to arms exports.” These contentions are sound, but the more important issue is how the ATT might affect the importation of firearms under the Second Amendment.
The white paper argues that “import restrictions are constitutionally valid,” and we agree: The federal government does have the power to control the entry of goods into the United States. But the draft ATT, in Article 7(2), requires nations signed on to the treaty to “adopt appropriate measures to prevent the diversion of imported conventional arms under the scope of this Treaty to the illicit market or for unauthorized end use.” The Treaty therefore goes beyond import restrictions by requiring signatories to prevent the domestic diversion of imports.
By ignoring this, the white paper also ignores a broad point about the U.S. Unlike most nations, the U.S. has both the Second Amendment and a federal system. The latter fact means that, in some policy areas, it is difficult to draft multilateral treaties that the U.S. can accept, because most nations do not have a federal system.
For example, the U.N. Convention on the Rights of the Child covers matters that in the U.S. are the responsibility of the states, localities, and families—not the national government, which is one reason no administration has transmitted it to the Senate.
The same is true for the ATT. The draft ATT is built on the assumption that all nations have the same structure, and can therefore implement the treaty in the same way. But in the U.S., the federal government shares responsibility for regulating firearms with the states, in both cases as controlled by the Second Amendment. Thus, the states are partly responsible for preventing firearms from reaching “the illicit market” or “unauthorized end use.”
Further, unlike other countries, our Constitution limits the authority of the federal government to insist that state officials act as its agent for purposes of carrying out federal policy. Thus, the ATT is about more than the control of imports. Worse, it is based on an assumption about the role and powers of national governments that is not true of the federal and Constitutionally limited U.S. system.
