Last week, it was divulged by Vice President Joe Biden, to fellow White House gun control advocates, that President Obama will be announcing new executive actions on gun violence sometime in the near future. During this conference call with “stakeholders,” Biden made assurances that eventual action on gun control will take place. The media was not invited to the conference call, according to an unnamed BuzzFeed source who was a participant in the conference call. “Look I know you’re going to say that I’m just being an optimist and I’m trying to put a good face on this. But you know I’ve been around here a long time and we’ve already done, because of you, some really good things,” Biden said. “Number one, the president is already lining up some additional executive actions he’s going to be taking later this week.”
Obama has already undertaken a number of executive actions, including the expansion of research into gun violence and other areas favored by gun control advocates. Following the Newtown shootings, he took action on these measures without Congressional approval.
Corroborating Biden’s assertion, House Minority Leader Nancy Pelosi (D-CA) said that the passage of more stringent gun controls is “inevitable” and will happen in ”just a matter of time.” Pelosi made this comment during a press briefing in the Capitol.
And, just how would President Obama go about accomplishing this? It appears that Obama views the United Nations Arms Trade Treaty as a backup plan for the failed Congressional vote. On April 2, the UN led 154 nations to approve the Arms Trade Treaty in the UN General Assembly. Though it is often touted as a way to control the international sale of conventional weapons, it could also be used as a tool, by gun control advocates, for restricting gun rights. The Constitution, however, requires that 2/3 of the Senate provide advice and consent to the treaty.
The Arms Trade Treaty masquerades as a human rights effort. The treaty seeks to “eradicate the illicit trade in conventional arms and to prevent their diversion to the illicit market,” where they can be used in civil wars and in situations in which human rights are violated. In order to achieve this goal, the treaty calls for tough export controls on heavy conventional weapons, such as missiles, tanks, artillery, helicopters and warships.
Enforcement of the treaty is another matter altogether, however. The Wall Street Journal reports:
“Some of the world’s largest arms traffickers either voted against the agreement or abstained. The U.S., quite rightly, already has the world’s most serious export controls in place, while nations such as North Korea, Syria, Iran, Russia and China will continue to traffic in arms with abandon.
But the new treaty also demands domestic regulation of ‘small arms and light weapons.’ The treaty’s Article 5 requires nations to ‘establish and maintain a national control system,’ including a ‘national control list.’ Article 10 requires signatories ‘to regulate brokering’ of conventional arms. The treaty offers no guarantee for individual rights, but instead only declares it is ‘mindful’ of the ‘legitimate trade and lawful ownership’ of arms for ‘recreational, cultural, historical, and sporting activities.’ Not a word about the right to possess guns for a broader individual right of self-defense.”
The treaty would provide the Obama administration with an end-run around Congress to achieve these gun-control ambitions: a national gun registry, licenses for guns and ammunition sales, universal background checks and a ban on certain weapons. Congress’s power to regulate interstate commerce is broad, but limited.
According to the WSJ:
“International treaties don’t suffer these limits. The Constitution establishes treaties in Article II (which sets out the president’s executive powers), rather than in Article I (which defines the legislature’s authority)—so treaties therefore aren’t textually subject to the limits on Congress’s power. Treaties still receive the force of law under the Supremacy Clause, which declares that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”
Hence, it would be an easier route for the Obama administration to take in attainment of its gun control agenda. For example, opponents of capital punishment have used treaties to try to get the Supreme Court to cease the death penalty in Texas. Similarly, those advocating bans on “hate speech” have invoked international norms to defeat First Amendment objections.
It’s important to note that there exists an international legal doctrine that holds that in the interim (during the period when a country has signed, but not yet ratified a treaty) it must take no measures that defeat the treaty’s object and purposes. In the view of some liberals, this gives the president the opportunity to put some aspects of the new arms treaty into effect by executive order.
But, the Constitution requires the president to present all significant international agreements to the Senate which in turn must approve the treaty with the same supermajority needed to send a constitutional amendment to the states or to override an executive veto.
It is important that the Senate prevent any attempt to circumvent the Constitution’s restraints on federal power.