by Dave Kopel
The morning after the election, President Barack Obama’s U.S. Mission to the United Nations voted to recommence negotiations on an international Arms Trade Treaty, known as the ATT. This past summer ATT negotiations collapsed, in part due to the U.S. delegation’s concern that a major U.S. anti-gun treaty could harm Obama’s re-election chances.
Now, those constraints are gone. The U.S. State Department’s legal advisor, Harold Koh, is on record expressing support for an international treaty that would completely eliminate lawful commerce in firearms. And until that can be achieved, he’ll continue to support the greatest restrictions possible.
Ratifying the U.N.’s ATT in the U.S. Senate would be difficult, but the last time a president actually lost an up-or-down Senate vote on a major treaty to which he had committed all of his political capital was in 1920, when the Senate rejected Woodrow Wilson’s League of Nations treaty.
Of course, a treaty in itself cannot repeal the Second Amendment, but it can influence how courts interpret the Second Amendment. Further, to influence a court’s decisions, a treaty need not even be ratified—U.S. courts, including the Supreme Court, have cited unratified treaties as well as treaties from other continents.
The respective constitutions of many nations specify that international law is part of the nation’s constitution. So regardless of U.S. Senate ratification, an ATT will become, in much of the rest of the world, a powerful club that will be used to destroy much of what remains of lawful gun ownership.
Even if the language in the ATT itself is not as draconian as it could be, the authoritative interpretation of U.N. treaties is up to the bureaucrats and delegates appointed by the U.N. to the treaty oversight agency. Repeatedly, U.N. agencies have announced interpretations that have little or nothing to do with a treaty’s text.
For example, nobody predicted in 1979 when the Convention on the Elimination of All Forms of Discrimination Against Women was created that the U.N. would interpret the convention to mean that Mother’s Day is illegal because the holiday emphasizes the role of women as mothers rather than as salaried workers. (Fortunately, the U.S. has never ratified this convention.) Since the balance of power at the U.N. is held by the minions of tyrannical and thieving governments, expect the U.N.’s interpretation of the ATT to implement their vision of total disarmament of freedom-loving people all over the world.
In the long run, the more that the United States becomes isolated as the only nation with Second Amendment rights, the less likely this freedom will survive. Like it or not, there are plenty of Americans, and plenty of American legislators and judges, who are uncomfortable with the U.S. being too different from the rest of the world. For instance, suppose the gun laws in Western European nations were nearly the same as those in Nebraska—would the pressure for gun control in the United States be nearly as intense as it has been for the last half-century?
Conversely, suppose that the U.S. became the only democratic nation where more than 10 percent of the population owned firearms. This fact alone would significantly increase domestic U.S. pressure for gun control.
A second post-election certainty is that President Obama will appoint many more federal judges—perhaps hundreds. Bill Clinton appointed 373 during his two terms. While the U.S. Supreme Court might only hear a Second Amendment case every few years, the practical details of the legal meaning of the Second Amendment are determined by dozens of cases heard by the federal circuit courts of appeal. Most of the federal circuit courts currently have a fairly close balance between left-leaning and right-leaning judges. In most of the circuits, additional Obama appointments will put the left solidly in charge.
Of course, not all left-leaning judges are anti-gun, nor are all right-leaning judges reliable supporters of the Second Amendment. Yet the fact that Obama-appointed judges will, in most instances, be picked because of their established records as leftists means most will be relatively hostile to Second Amendment rights.
Then there’s the U.S. Supreme Court. Justices Antonin Scalia and Anthony Kennedy will both turn 80 before Obama’s term is over. Justice Clarence Thomas is 64. Presumably none of them wants their successor appointed by President Obama, but any one of them could leave the court for any number of reasons in the next four years.
An Obama appointment of the successor to just one of these justices would turn the Heller and McDonald 5-4 majorities in favor of the Second Amendment into a 5-4 majority opposed to the individual right to keep and bear arms. The new Obama majority could overrule Heller and McDonald entirely, eliminating that guaranteed individual right for law-abiding citizens. Or they could interpret Heller and McDonald very narrowly, authorizing bans on many types of firearms, repressive licensing and registration systems and punitive taxes.
It’s very likely that Justice Ruth Bader Ginsburg, who turns 80 this March, will retire during Obama’s second term, and it’s possible that Justice Stephen Breyer, age 74, could do the same. Along withthe loss of some of the older pro-Second Amendment justices, the Obama appointments would create a solid anti-gun majority on the U.S. Supreme Court that would endure for decades to come.
Will Congress enact new anti-gun laws at the behest of President Obama?
The gun prohibitionists have historically maximized their windows of opportunity after a notorious gun crime, such as the horrific murders of schoolchildren in Newtown, Ct., that took place as this issue goes to press. You’ve already seen the strategy at work in the United States: One, legislation is drafted ahead of time, ready to be introduced the moment an opportunity presents itself; Two, the legislation is rushed through while emotions are highest; Three, forward momentum is key, with the legislation never allowed to be slowed by objections over technical errors or practical problems with the bill.
Candidate Obama chose not to seize the opportunity to make a major push for gun control after the 2007 murders at Virginia Tech or the 2012 murders at a movie theater in Aurora, Colo. But now his political calculus is different, and with no more election campaigns to run, he has no personal need to avoid arousing the ire of gun owners.
In fact, history shows that pro-gun majorities in Congress can be upended by a single, terrible crime. The assassination of Robert Kennedy in 1968 led directly to the passage of the Gun Control Act of 1968.
President Obama is now far more likely to follow the model of President Lyndon Johnson in 1968 and use the Newtown tragedy as his opportunity to ram gun control through Congress.
Of course, at the top of Obama’s list is a ban on so-called “assault weapons,” which he re-affirmed in the second presidential debate last October. Don’t be fooled into thinking he wants to ban fully automatic guns—this has absolutely nothing to do with machine guns.
As an Illinois state senator, Obama supported banning all semi-automatic firearms, whether handguns, rifles or shotguns. He voted for and co-sponsored extremist gun prohibition legislation. He is not just after semi-automatic rifles like the AR-15 or various AK clones, which have a military appearance but fire just one shot per trigger pull like every other gun. Rather, Obama has repeatedly shown that the “assault weapons” he wants to outlaw are literally tens of millions of commonly owned semi-automatic firearms.
Along with the courts and Congress, perhaps the greatest danger of all is what President Obama will be able to do, singlehandedly, by regulation.
Over the last 80 years, Congress has abdicated much of its law-making authority to the executive branch. Congress enacts statutes of several thousand words and allows executive branch agencies to “fill in the details” of these statutes by creating regulations of hundreds of thousands of words.
To create a regulation, an agency follows certain procedures such as publishing a draft, allowing time for public comment and providing a written rationale for its decisions. As long as an agency is careful to follow the correct procedures, courts almost never overturn agency regulations or other administrative decisions.
New York City Mayor Michael Bloomberg has already sent the president a blueprint of gun control initiatives that Obama can take unilaterally, without congressional consent. These initiatives include a large expansion of bans on the importation of firearms, and keeping federal registration records of all gun buyers for six months after the purchase of a firearm.
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