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Second Amendment Rights in the Cross Hairs?: Small Arms, Big Debate

The Second Amendment to the U.S. Constitution provides:  “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”  In District of Columbia v. Heller (2008), the U.S. Supreme Court, in striking down a ban on possession of handguns in the District of Columbia, held that “the Second Amendment conferred an individual right to keep and bear arms.  Of course, the right was not unlimited, just as the First Amendment’s right of free speech was not.”  Additionally, the Court observed that the right to bear arms also included the right “to use that arm for traditionally lawful purposes, such as self-defense within the home.”  Heller underscores the traditional American perspective of Second Amendment rights; however, the traditional view is being subjugated by those who view the rights of governments above the rights of people.

The traditional view held by most Americans is not a popular one outside of the United States or at the United Nations.  In his remarks to the Conference on the ATT, U.N. Secretary-General Ban Ki-Moon stated,  “Our common goal is clear:  a robust and legally binding Arms Trade Treaty that will have a real impact on the lives of those millions of people suffering from the consequences of armed conflict, repression, and armed violence.  It is ambitious – but I believe it is achievable.”  Perhaps the most striking aspect of the Secretary-General’s remarks is the assumption that less guns will mean more safety for “millions of people.”  Indeed, the traditional American view is quite the opposite:  that responsible gun ownership can promote increased safety and security, not less.  Nevertheless, the juxtaposition of the traditional American view alongside the United Nations’ view shows immense contrast between these two positions.  Given this contraposition of each viewpoint, it is understandable that many Americans fear that the promulgation of the ATT poses a real threat to their Second Amendment rights.

On June 29, 2012, 130 Republican members of the U.S. House of Representatives sent a letter to President Barack Obama asking his administration to oppose the ATT “if it infringes on our rights or threatens our ability to defend our interests.”  Further, the letter stated, “the ATT should expressly recognize the individual right of personal self-defense, as well as the legitimacy of hunting, sports shooting, and other lawful activities pertaining to the private ownership of firearms and related materials.”  The letter does not assume that the ATT would vitiate or entirely abolish the Second Amendment rights; rather, the concern expressed by the Republican Representatives is that the ATT would “infringe” on the right to keep and bear arms or affect the sovereignty of the United States with regards to the manufacture, regulation, and ownership of guns.  In addition, their concern is not only the erosion of the Second Amendment rights but also the potential “creation of any international agency to administer, interpret, or add to the ATT regime because it might represent the delegation of federal legal authority to a bureaucracy that is not accountable to the American people.”

Indeed, Second Amendment rights can only be curtailed or abolished through an additional constitutional amendment repealing or modifying the Second Amendment rights, through Congressional legislation, or through the interpretation of the constitutional right by the U.S. Supreme Court.  In Reid v. Covert (1957), the U.S. Supreme Court held that “no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.”  The Court stated further, “[t]here is nothing in [the Supremacy Clause] that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution.”  Given the jurisprudence of the Supreme Court in Heller and Covert, the Second Amendment would trump any provisions of an international arms trade treaty that are inconsistent with our right to keep and bear arms.

In addition, the State Department has attempted to correct some of the misconceptions surrounding the U.N. Conference on the ATT.  According to a State Department fact sheet, “[t]he UN is not pursuing a global treaty to ban gun ownership by civilians,” and “[e]ach sovereign [member] State determines its own laws and regulations for the manufacture, sale and possession of firearms by its citizens.”  The State Department further contends that the ATT would “tighten[] controls over the international import, export, and transfer of convention arms” to prevent them from being diverted from the legal market “into the hands of terrorists, drug traffickers, and criminal cartels.”  Although the State Department has attempted to distinguish fact from myth, their efforts have done little to change the minds of many concerned Americans.  Indeed, the emergence of the scandal surrounding Operation Fast and Furious, whereby the ATF allowed licensed gun dealers to illegally sell firearms to gun traffickers in order to track the guns back to the Mexican drug cartels, has greatly diminished the Obama Administration’s credibility and trustworthiness, particularly in the area of gun regulation and ownership.

As the debate over gun regulations and ownership takes aim at the forefront of public debate and discourse, the Second Amendment must remain an integral element of our essential rights guaranteed by the Bill of Rights.  The Second Amendment is a fundamental, individual right of all Americans to keep and bear arms, and the Founding Fathers considered this right essential to the preservation of liberty and the security of a free state.  Further, the lawful right to self-defense, particularly within the home, is implicit in the rights guaranteed by the Second Amendment.  While the negotiations of the UN Conference on the Arms Trade Treaty have failed, they are far from over.  Any future negotiations of the ATT by the United States must start with certain non-negotiable points including the comprehensive protection of Second Amendment rights.  In a world rife with terrorism (domestic and foreign), drug trafficking, armed conflict, repression, and criminal cartels, the preservation of liberty and democratic security cannot be sustained where the fundamental, individual rights of U.S. citizens like the Second Amendment are subordinated to the rights of government.

 

 

Thomas O. Robbins, Co-Editor-in-Chief Emeritus
About Thomas O. Robbins, Co-Editor-in-Chief Emeritus (5 Articles)
Thomas (“Thom”) O. Robbins graduated from Campbell Law School in 2013. He was actively involved at Campbell Law, where he served as SBA Vice President, Justice of Phi Alpha Delta, and a member of the Moot Court and Mock Trial National Teams. Thom is a summa cum laude and Phi Beta Kappa graduate of Hampden-Sydney College in Virginia and received his master’s degree from Oxford University (St. Antony’s College). He also holds a specialization in international relations and negotiation from the Universidad de los Andes in Bogotá, Colombia, where he studied as a Fulbright Scholar. In the Summer of 2011, he clerked in the Chambers of the Honorable Wanda Bryant at the North Carolina Court of Appeals and continued clerking throughout the Fall 2011 Semester. Thom clerked in the chambers of the Honorable Linda McGee at the North Carolina Court of Appeals and in the chambers of the Honorable J. Rich Leonard of the U.S. Bankruptcy Court, Eastern Division of North Carolina in Raleigh, as well as serving an intern for the Honorable W. Earl Britt, Senior U.S. District Judge for the U.S. District Court, Eastern Division of North Carolina in Raleigh.
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