The Arms Trade Treaty and the Second Amendment: Encouraging Executive Actions

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 are exploring in this four-part series.

In the first part of the series, we noted our concerns with the implications of the treaty for the import of firearms and as they relate to the federal structure of the U.S. In this second part, we look at how the treaty’s requirements may invite further executive actions by the United States.

The paper asserts that it is “highly unlikely” that current U.S. regulations of firearms would be considered “inadequate” and “inappropriate” within the context of the ATT, but that is a questionable assertion. As we will explore in the third part of this series, both Mexico and distinguished legal scholars argue that U.S. regulations on the civilian possession and transfer of firearms are indeed inadequate.

Moreover, an Administration that wished to do so could argue that, in light of the requirement in Article 7(2), the U.S. should—or even is obliged to—tighten its regulations on imported firearms at the federal level in order to more effectively prevent these firearms from being diverted to the “illicit market.”

Imported firearms comprise approximately 35 percent of the new firearms market. Under the guise of adopting what it deems to be “appropriate measures,” an Administration could restrict imports by redefining what qualifies as a “sporting” firearm—the definition of which is left completely to the discretion of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. It could create a national registry limited to imported firearms. It could impose new requirements on importers of firearms, or parts and components of firearms, for example, by requiring them to provide the identity of the final end user instead of stating that they are importing for commercial resale, as is the current practice.

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All of these actions would, of course, be subject to challenge in the courts on statutory or constitutional grounds, the latter related both to the Second Amendment and the role of the states in the federal system. During the pendency of such challenges, though, their likely effect would be to reduce the ability of importers and resellers to operate their businesses and thus to reduce, by administrative methods, the ability of U.S. citizens to legally acquire firearms.

The current Administration has already demonstrated its commitment to pursuing public policy on firearms by way of unilateral executive action. The ABA’s contention that the ATT is consistent with the Second Amendment rests fundamentally on an unsupported assumption that this Administration—and all future Administrations—will not use it as a justification for issuing new executive orders, executive actions, regulations, and the like.

Source material can be found at this site.

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