Vote-A-Rama and the Arms Trade Treaty

In the wee hours on Saturday morning during vote-a-rama, the Senate voted on the Inhofe amendment #139 to the Senate Democrat Budget, and it was agreed to by a vote of 53-46.  The amendment was designed to protect the Second Amendment to the Constitution and prevent the United States from entering into the United Nations Arms Trade Treaty (ATT).

What this vote indicates is that the treaty will likely not have enough support in the Senate because treaties need two-thirds present and voting — 67 votes, as a rule of thumb to be ratified.  Since only 46 Senators voted against the Inhofe amendment, proponents of the treaty are 21 votes short.

This is good news.  Why? 

First, the Heritage Foundation explains that this treaty would have negative implications for import of firearms, because although the federal government does have the power to control entry of goods into the United States, which proponents of the ATT cite as sufficient reason to support the treaty, the ATT ignores the fact that the United States has both the Second Amendment and a federal system.  The principle of federalism means that sovereignty is divided between two different political entities, the nation and the states.

Thus the treaty is problematic because “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”

And the ATT could potentially require the federal government to do just that – to insist that state officials act as the federal government’s agents to carry out federal policy with regard to regulating firearms.

Second, the ATT may invite further executive actions by the United States.

[A]n 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.”

Third, the theory of legal transnationalism raises broader concerns about the ATT.

In short, the treaty will be elaborated and potentially expanded using the pretense of “effective implementation” for decades to come. For the U.S., it is not merely a question of what the treaty requires today; it is also a question of what this process would commit it to in the future.

This raises the concern of legal transnationalism. Transnationalists argue that internationally defined norms are binding on the U.S. as customary international law or should be used to remake U.S. policy or re-interpret the Constitution.

This is a complex treaty that has the potential to evolve over time.   It is not in the best interest of the United States to bind ourselves by this dangerous treaty, and if it is negotiated, the U.S. should ensure that “it does not recognize the treaty as customary international law, or as imposing any obligations upon the U.S.”

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