The Volokh Conspiracy

The Supreme Court's oral argument today in Medellin v. Texas has interesting implications for Second Amendment rights. The rationale promoted by the Bush administration, and which apparently has support from at least some of the Supreme Court, offers a roadmap for how a future U.S. President could evade Congress to impose highly restrictive gun controls.

The Bush position is that when the Senate has adopted a non-self-enforcing treaty, the treaty becomes self-enforcing if: 1. The World Court issues a ruling under the treaty in a case in which the United States accepts jurisdiction, and 2. The President then, exercising his foreign policy discretion, decides that the World Court order must be implemented. The position of Medellin's lawyers is even broader, that a World Court ruling is sufficient in itself.

Now let's see how this could work in a gun control hypothetical:

1. President Hillary Rodham Clinton strongly believes in gun control. (Consider that as Senator, she, unlike Senator Obama, actually voted against an appropriations rider to prevent federal funds from being used to fund gun confiscation during/after a natural disaster or similar emergency, even when the confiscation had no legal basis, or was formally prohibited by state law.)

. 2. She can't get 60 votes in the Senate to pass her domestic anti-gun proposals, much less the 2/3 support necessary for ratification of the new UN international gun control treaty. (Without U.S. Ambassadors to the U.N. like John Bolton, a new U.N. gun control treaty is a certainty within a few years. Indeed, it is doubtful that any U.S. delegation can block the forthcoming Arms Trade Treaty.)

3. The United States has ratified the International Covenant on Civil and Political Rights, along with a reservation stating that the Covenant is not self-executing.

4. United Nations Special Rapporteur Barbara Frey (a University of Minnesota law professor) has written a report for the United Nations Human Rights Council. The report has been adopted by the Human Rights Council's subcommission on the Promotion and Protection of Human Rights, which claims that the Report accurately describes existing mandatory international law.

5. Under the report's standards, U.S. gun control laws are in massive violation of the international law obligation (contained, inter alia, in the International Covenant) not to violate "the right to life." For example, most states do not require a periodically-renewed license for the possession of handguns, and hardly any do so for long guns. All states allow ordinary citizens, and the police, to use deadly force against certain felonies (e.g., rape, arson, armed robbery, serious assaults), even when the person using deadly force does not believe that deadly force is necessary to save a life. Even New York City's gun laws are deficient, for they allow licensed owners of rifles and shotguns to use their guns for any lawful purpose (e.g., target shooting, hunting, collecting, self-defense in the home) rather than only for a specified purpose. (For details, see pages 12-14 of my forthcoming article in the BYU Journal of Public Law, "The Human Right of Self-Defense.")

6. In collusion with the Clinton administration, a foreign government brings suit in before the World Court. The suit might be premised on the dangers to the foreign government's nationals when they visit or work in the United States. The Clinton administration accepts the World Court's jurisdiction.

7. The World Court issues a ruling consistent with the standards of the UN Human Rights Council.

8. President Clinton, exercising her foreign policy discretion, declares that all state governments must implement the ruling, by enacting gun licensing systems, and sharply restricting the use of guns for self-defense.

9. We are now at the same point as Medellin v. Texas, with one or more state governments claiming that the President cannot force them to obey a World Court ruling about a non-self-implementing treaty.

10. Based on the October 10 oral argument, it appears that there are currently some Justices on the court who think that the President can. By President Clinton's second term, there might be a majority of Justices, in a Court whose membership was appointed almost entirely by one Clinton or another, who might agree.

What if some states refused to obey a direct order from the Supreme Court? Well, there are lots of ways to pressure the states, including withholding their appropriated federal funding for state and local criminal justice agencies. Would a Supreme Court that upheld President Clinton on the substantive issue be likely to declare it illegal for President Clinton to temporarily suspend the payment of money to states which are attempting to nullify a Supreme Court ruling?

There is an even simpler approach. Every firearms retailer holds a Federal Firearms License, and is subject to the regulatory control of the Bureau of Alcohol, Tobacco, Firearms and Explosives. No FFL may sell a gun to a customer without complying with the National Instant Check System, which is administered by the Department of Justice and FBI. President Clinton simply issues an order that no FFL may sell a gun, and NICS may not approve any transfers in any state which has not brought its laws into conformity with the World/Supreme Court rulings. Alternatively, President Clinton just orders administrative changes, so that the federal Form 4473 (which must be filled out by all retail gun buyers) states that it must be renewed every five years. A new line on the 4473 requires the buyer to make a multiple choice selection for one (and only one) purpose for which the gun will be used. Further, BATFE issues regulations under the federal Gun Control Act declaring that internationally-illegal uses of guns (e.g., against a rapist) constitute use of a gun "in a crime of violence", which is a federal crime under the Gun Control Act. President Clinton directs the US Attorneys to prosecute accordingly.

The federal statutes creating BATFE, requiring FFLs, and setting up NICS do not give the President any authority to issue such orders. But President Clinton could argue that she may issue such orders, based on her Article II foreign policy powers, in order to comply with the World and Supreme Court decisions. Moreover, the Senate ratification of the International Covenant implicitly gave her such powers, pursuant to the Supremacy Clause, to implement mandatory U.S. obligations arising from the Covenant.

Would U.S. courts, and, eventually, the Supreme Court, uphold President Clinton's actions regarding FFLs and NICS? It would be unrealistic to be confident that courts would not.

Of course my suggestions about how a U.S. President might proceed after point 10 are just guesses. What is clear, is that with the right President having the opportunity to make a few Supreme Court appointments, getting to point 10 would be quite easy. After that, U.S. history shows that when a determined U.S. President wants to make recalcitrant states obey a U.S. Supreme Court ruling, the President eventually wins, one way or another.