The Arms Trade Treaty and The Second Amendment
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08/James-Morris-Feat-Arms-trade-e1345592473689-150×150.jpg” alt=”" width=”150″ height=”150″ />In consideration of the widespread conflicts in countries such as Syria, Burma, Congo, Liberia, Sudan, and Sierra Leone, the United Nations has attempted to establish common legal standards for the international transfer of conventional weapons and ammunition through the Arms Trade Treaty (ATT). However, concern over the destruction of second amendment rights has led to substantial political pressure not to pursue the ATT, and has prevented an agreement from being reached in 2009 and 2012. This fear is baseless. The US Government and the UN have demonstrated their opposition to international regulation of domestic gun production, sales, and ownership. Additionally, courts would likely find that the scope of the second amendment does not provide for the absolute protection of ability to purchase any gun.
Today, only 90 countries have basic regulations on the international transfer of small arms and light weapons. Of these 90, 56 countries control arms brokers and 25 have criminal penalties for illicit brokering (armscontrol.org). The ATT is intended to impose a global standard on the importation of conventional arms. The ATT is not intended or written to comprise second amendment rights or subject these rights to an international governing body. The US State Department lists eight chief concerns in the negotiation of the ATT, including the (1) protection of the Second Amendment; (2) opposition of provisions inconsistent with existing US laws; (3) protection of legitimate international arms trade; (4) exclusion of additional requirements for reporting ammunition or explosives, and; (5) exclusion of an intentional body to enforce an ATT (state.gov). Similarly, in 2009 the UN explicitly acknowledged the right of States to regulate internal transfers of arms and national ownership, including through national constitutional protections on private ownership (UN Resolution 64/48). These principles have been repeatedly stated, and firmly held to; the Obama administration
led the UN to reach an agreement that the ATT would only
y be produced based on census (armscontrol.org), and; Senator Jon Tester authored a letter, signed by 12 other Democratic Senators, expressing support for the ATT, and reaffirming the commitment to protect the Second Amendment (nraila.org). Consequently, the protection of the Second Amendment is among the chief concerns for US negotiators (state.gov, nraila.org).
Also, as written, the ATT would not subject international arms trade to an international governing body, and the ability of the States to regulate domestic and international conventional arms trade would be left to the that State. Contrary to statements by the opposition, the ATT would only establish an implementation support unit consisting of 3–4 individuals that would be directed by the State Parties, and not the UN. The ATT would still require individual governments to set up national systems to review importation and exportation licenses for conventional weapons, but not the internal arms transfers or registrations (armscontrol.org).
If the ATT were to be ratified, it is unlikely that the treaty would be intrusive enough to actually violate the Second Amendment. US citizens would still be able to purchase arms produced internationally through the legitimate market for conventional weapons. Purchasing a Beretta shotgun, made in Italy, would not require the purchaser, or the US, to submit his or her information to the UN. Since each State would be responsible for governing and regulating the importation of conventional arms, the gun would be registered with the US and would not be reported to the UN. The UN implementation support unit would help to establish this system in countries that do not already have it, and to standardize it in those that do.
Finally, courts are likely to find that the complication of the importation of conventional weapons is not prohibited by the Second Amendment. In District of Columbia v. Heller, the Supreme Court stated that “the right secured by the Second Amendment is not unlimited.” Id. at 2816. The Court in Heller went on further to recognize that there is a difference between weapons and the Second Amendment only protects the right to carry weapons which are “in common use at the time.” Id. at 2786. Indeed, the Second Amendment is not absolute. Courts have denied second amendment protection of the possession of assault weapons or a .50 Caliber BMG rifle (People v. James); of the ability for a person subject to a domestic violence restraining order to possess a firearm (United States v. Knight), or; from the complication of gun possession regulations by the legislature (Kachalsky v. Cacae). Consequently, it is highly unlikely that a court would find regulations put in place by the legislature which still allows the purchasing of internationally made conventional weapons to be a violation of the Second Amendment. The Second Amendment is not absolute, and is unlikely to protect a US citizen from increased wait time when acquiring an imported weapon, or from the registration requirements attacked with the weapon.
Consequently, the concern should be shifted. US citizens should be less concerned about the availability of a new Beretta shotgun, and more concerned with the effectiveness of the ATT. Any imposition put on the Second Amendment will be slight and trading off would be a minor inconvenience compared to the effect the ATT could have on the worn torn countries that are being torn apart by internationally shipped conventional weapons.