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Medellin and the Second Amendment:

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.

Related Posts (on one page):

  1. Medellin and the Second Amendment:
  2. Medellin v. Texas:
WHOI Jacket:
In your scenario, I await the reaction when a former FFL-credited dealership is arrested for selling without one and the customers are arrested as well.

What if a state refused to allow the collection of Federal taxes in its borders in retaliation?
10.10.2007 6:47pm
Virginian:
And that is why I would probably hold my nose and vote for Guiliani, if those are my two options.

Signed,
NRA Life Member
10.10.2007 6:47pm
gattsuru (mail) (www):
What's to stop Guiliani from doing the same thing? He had no problem advising controls nearly as bad as this doomsday scenario less than a decade ago.

The good news is that current legal method protects the amendments stronger than the Constitution or earlier amendments, so a strong enough 2nd Amendment defense might help. Of course, on the other side would be both the "collective rights" interpretation and idea that this particular violation didn't prevent people from bearing arms.

Can someone explain to me why we're still funding the UN?
10.10.2007 6:57pm
loki13 (mail):
1. Could you have worked your hypothetical without using a current Presidential candidate?

2. Of the current candidates, (and not regarding your scare tactic), who has done the most to further gun control? (Hint- starts with a G).

So, assuming you answered 1 in the negative, why use Clinton?

(I think that your hypo would have been interesting without using Clinton, as Medellin posits many different, and troubling, aspects of the law. Throwing Clinton in there just conjures up unnecessary scaremongering... Vote Clinton, Lose Yer Guns!)
[DK: Given all that was accomplished by gun control in the first Clinton administration, and given Mrs. Clinton's large role therein, I'm not so sure that Giuliani beats her for "most accomplished." Certainly as NYC Mayor he did much more for the cause than did NY Senator Clinton. As for using her name, Charlie Cook gives her an 80% chance of winning the nomination. Except for Richardson (and I don't know about Gravel), the other Dem candidates might also try a similar trick. Although the trick would take a lot of nerve, and the Clinton vs. Obama split on federal funding for gun confiscation in violation of state law does suggest something important about where she's willing to spend political capital. I wouldn't trust Giuliani for a second on domestic RKBA issues, but I don't see in his record the affection for and deference to international legal bodies that we saw from the first Clinton administration. And I think that RG Supreme Court nominees would tend to be much more nationalist and concerned with American sovereignty than would HRC nominees.]
10.10.2007 6:59pm
Just Dropping By (mail):
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

Do you know something about the health of non-Clinton appointed Justices Roberts, Alito, Scalia, Kennedy, Souter, Thomas, and Stevens that the public doesn't? The most likely justices to depart in the next four years are usually identified as Ginsberg and Stevens, which would only be a net gain of one Clinton-appointed justice (to 3) and probably no net ideological change on this particular topic.
10.10.2007 7:10pm
Constitutional Crisis (mail):

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.

Just because you're paranoid don't mean they aren't out to get you. HOLD ONTO YOUR GUNS.
10.10.2007 7:14pm
ASDF:
Black helicoptors, anyone?
10.10.2007 7:28pm
martinned (mail) (www):
International Court of Justice

I know it's a lot of syllables, but all this World Court nonsense is freaking out the isolationists...


[DK: That's a reasonable point.]
10.10.2007 7:45pm
Gregory Morris (mail) (www):
Ok, the thought that Hillary can mess around with ATF regulations... STOP GIVING THEM IDEAS! Yeesh.
10.10.2007 7:51pm
Aaron:
How much hash did you have to smoke before that scenario presented itself in your befuddled and paranoid brain?

The Gun Confiscator in this election used to be a US Atty, not the First Lady...
10.10.2007 7:51pm
Smokey:
Question of the day:
"Can someone explain to me why we're still funding the UN?"
Shoveling $$$$$ into the UN is no different than the Boy Scouts funding the ACLU, or Israel funding Iran. It makes no sense at all.

And:
"Vote Clinton, Lose Yer Guns!"
Yep.
10.10.2007 7:54pm
Antares79:
I thought that Medellin addressed a World Court decision of non-Constitutional dimension, as stipulated by all parties. The Justices had to posit hypothetical World Court decisions that violated the Constitution in order to reach the question of Constitutional conflict. Kopel's hypo is distinguishable from Medellin in that at least his World Court decision specifically addresses a Constitutional provision, whereas Medellin does not, no?
10.10.2007 7:58pm
Daryl Herbert (www):
One problem: I think the case is Reid v. Covert.

The Supreme Court has held that treaties can't overcome express Constitutional provisions, and the 2nd Amendment is right there in the text (unlike, for instance, abortion, which is hanging out in a penumbra).

The 2nd Amendment is doomed with the current court, but not because the complicated end-run you describe. It's doomed because the Court simply decides to interpret it (implausibly) as meaning a right to a well-regulated militia, i.e. that the Framers who came up with the Bill of Rights went out of their way to put an amendment in giving the Government the right to enact gun controls, sandwiched in between rights belonging to individuals.

If Hillary is elected, she will further strangle the 2nd Amendment by appointing partisan left-wing judges who hate the 2nd Amendment and therefore willfully blind themselves to its history and meaning.
10.10.2007 8:23pm
Bored Lawyer:
Another difference between Medellin and the Second Amendment hypothetical is that the former does rationally touch upon foreign relations -- namely the treatment of foreigners within the borders of the U.S., and presumably the concomitant treatment of U.S. citizens in foreign lands. Under Asakura v. Seattle, 265 U.S. 332 (1924), it is clear that the treaty making power extends to treatment of foreign nationals in the U.S. and vice-versa.

In fact, the language there is very germane:

The treaty-making power of the United States is not limited by any express provision of the Constitution, and, though it does not extend "so far as to authorize what the Constitution forbids," it does extend to all proper subjects of negotiation between our government and other nations. Geofroy v. Riggs, 133 U.S. 258, 266, 267; In re Ross, 140 U.S. 453, 463; Missouri v. Holland, 252 U.S. 416. The treaty was made to strengthen friendly relations between the two nations. As to the things covered by it, the provision quoted establishes the rule of equality between Japanese subjects while in this country and native citizens. Treaties for the protection of citizens of one country residing in the territory of another are numerous, and make for good understanding between nations.


The Second Amendment scenario you posit, OTOH, does not touch upon foreign relations in any meaningful way, except in the vague sense of upholding some supposed universal set of "rights." So such a treaty would be defective on that score.

And of course, as the Supreme Court itself noted in Asakura, the treaty making power cannot extend to permit what the Constitution forbids. Second Amendment rights, however they are construed, certainly are superior to the treaty making power, as indeed they are to the legislative power. Otherwise, why not change your scenario to have a treaty override the First Amendment --say by requiring the outlawing of hate speech.


[DK: The hate speech question would be very interesting, for the reasons that you and varoius posters on the Reid v. Covert line, have raised. The Second Amendment, though, doesn't strike me as a big obstacle, presuming that there's a majority on the S.Ct. for the fundamental issue in Medellin. The Court majority simply says the International Court of Justice mandates are not in violation of the Second Amendment: people will still be allowed to own guns, including handguns. Moreover, the Court could say, while the Second Amendment does implicitly protect a right of self-defense, the boundaries of that right are not frozen, and can change based under evolving social circumstances; the opinion of international law is relevant to demarcating those 2d Amendment self-defense boundaries, just as international law is relevant to the Court's own interpretation of what the 8th Amendment prohibits.]
10.10.2007 8:36pm
JohnThompson (mail):
Daryl beat me to it. last I heard, there was this little thing called the UNITED STATES CONSTITUTION, which last time I checked, contained a provision called the SECOND AMENDMENT. Nuff said?
10.10.2007 8:58pm
Dilan Esper (mail) (www):
The Second Amendment, though, doesn't strike me as a big obstacle, presuming that there's a majority on the S.Ct. for the fundamental issue in Medellin. The Court majority simply says the International Court of Justice mandates are not in violation of the Second Amendment: people will still be allowed to own guns, including handguns. Moreover, the Court could say, while the Second Amendment does implicitly protect a right of self-defense, the boundaries of that right are not frozen, and can change based under evolving social circumstances; the opinion of international law is relevant to demarcating those 2d Amendment self-defense boundaries, just as international law is relevant to the Court's own interpretation of what the 8th Amendment prohibits.

I think we are waist deep in paranoia at this point.

Seriously, David, the Supreme Court may very well hold that the Second Amendment is a collective right-- though I doubt it. But assuming they hold it is an individual right, the gun confiscation scenario is completely different from the consular relations issue, because the consular relations issue really does involve both executive power and an issue (the functions of consuls) that most everyone agrees to be a valid subject for international regulation.

Further, nobody thinks the Second Amendment is like the Eighth Amendment either. The Eighth Amendment is interpreted with reference to international practice because by banning cruel and unusual punishment, it obviously appeals to the opinions of civilized peoples. In contrast, I haven't seen anybody rushing to interpret the First Amendment, for instance, to be consistent with international norms.

Look, at the level you are operating at, I suppose anything is possible. But this is why NRA types look like extremists to vast numbers of people (including myself) who are generally sympathetic to gun rights. There is no value in playing out these vast improbable causal chains.
10.10.2007 9:16pm
PersonFromPorlock:
Just to try something different: if a UN treaty were both incompatible with the Constitution and inescapable as a UN requirement, wouldn't the Court have to declare our membership in the UN void?

Probably not, but it's an interesting alternate scenario.
10.10.2007 10:10pm
PaulK (mail):
"by banning cruel and unusual punishment, it obviously appeals to the opinions of civilized peoples."

This actually isn't so self-evident as many people, Anthony Kennedy included, seem to think it is. There's a compelling argument that "cruel and unusual punishment" is a common-law term of art that describes the relationship between the punishment and the criminal law, not between the punishment and our "evolving standards of decency."
10.10.2007 10:15pm
Justin (mail):
So umm...who do you think was really behind 9/11?
10.10.2007 10:15pm
JOe:
Granted Guiliana did more as NYC mayor to advance gun control, than the other Dem candidate. However, she apparantly was very involved in the selection of Ginsburg &Bryer to Scotus and others such as rosemary burkett to the 11th. It would be hard to imagine Guiliana selecting similar judges. In 6-8 years you will have scalia and kennedy close to retirement. In the mean time, ginsburg, stevens and souter will likely to have been replaced with like minded and younger justices. this means, that for next 15, 20, 25 years we could see a very living breathing constitution.
10.10.2007 10:58pm
Dilan Esper (mail) (www):
This actually isn't so self-evident as many people, Anthony Kennedy included, seem to think it is. There's a compelling argument that "cruel and unusual punishment" is a common-law term of art that describes the relationship between the punishment and the criminal law, not between the punishment and our "evolving standards of decency."

That's just wrong. I understand there are arguments against "living constitution" theories generally, but the word "unusual" is about as clear as the framers can get in indicating that the punishment must be viewed in context of current practice.

Some constitutional provisions-- such as the Seventh Amendment's jury trial guarantee-- clearly fix common law practice in the law. This isn't one of them. The fact that conservatives may hate the results is no reason to give "unusual" anything other than its (ahem) usual meaning.
10.10.2007 11:08pm
ReaderY:
What if the United States made a treaty with Vatican City undertaking to protect its citizens when they visit this country? Presumably all citizens of Vatican City, even those under 0 years of age, would have Article III standing as citizens of a foreign state.
10.10.2007 11:13pm
Edward Swaine:
"The first thing we do, let's kill all the lawyers."
"No, actually, the first thing we should do is to use their perverse talents to enable the UN to come in and steal our guns."
"Then kill them?"
"Oh, absolutely."

I completely understand concerns about the limits of the presidential power theories that are sketched in Medellin -- they're legitimate. But this is a little much. There is (potentially) a Second Amendment issue, as others have observed; unless I'm missing something, the only way this scenario unfolds is if the President's action is actually consistent with the Second Amendment. If so, fine, but in that case the distinctiveness of this horrible is somewhat dissipated.

Moreover, let's ignore some of the niceties here, and assume that the Human Rights Council and the ICJ rubber-stamp the report's vision of international law, that some foreign government decides to be a Clinton Administration sock-puppet (with no assurance that the case will be decided during a four-year term, and no assurance that its good deed will go unpunished), and the demonic President Clinton sees no difference in the means she employs towards her objective of gun control (even in terms of its impact on her reelection). You say, "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." Doesn't Congress, having by hypothesis choked off all avenues for domestic gun control, take the slightest interest in these shenanigans? Or are you relying on turncoat House or a few traitorous Senators as step 2.5, preventing an override?

P.S. I hate to say this, but if you want to go down this road without relying on the outcome of this argument, simply conjure up an executive agreement with [insert your favorite foreign villain here] banning nationals of either state from possessing guns. If you want to dress it up, add in some claims settlement.
10.10.2007 11:17pm
Elmer (mail):
Interesting gedanken. To expand upon Edward Swain's point, the long-term result of the scenario would probably be a reversion to current law and an aversion to both gun control and Democratic presidents for a very long time. Mrs. Clinton might notice that, and someone near to her might mention it as well.
10.11.2007 1:22am
happylee:
Great post. No sleep for me tonight. Where's snuggles, the 1911Carebear?
10.11.2007 3:26am
ThirstyJon (mail) (www):
Wow. Scary stuff.

In the short run, we better pray, vote, and campaign like crazy.

In the long run we better work hard to do the only thing that can prevent Tyranny. Raise up a generation of people who are free on the inside and don't want to unduly support treaties that ruin U.S. sovereignty.

ThirstyJon
freedomthirst.com
10.11.2007 6:42am
Waldensian (mail):
Gun-rights advocates (and I am one) have the right to be a little bit paranoid. That's because guns, unlike cars, generally are not regulated in good faith; i.e., I'm not aware of a group of people trying to use annual inspection requirements to get all cars off the road.

But elaborate theories about international law trumping gun rights in the U.S. -- rights that are recognized and guaranteed by the federal AND many state constitutions -- are just silly.

Guns aren't going to be confiscated, or regulated out of existence, nationwide unless and until all of our political institutions have the will to make that happen. They don't, and they won't, no matter what a bunch of quiche-eating UN-niks may say or do.

To the World Government Eurotypes I say, good luck trying to disarm America. We aren't the British. We are people like this.

How I do love this great land of ours.
10.11.2007 7:39am
gab:
1. It's spelt G-i-u-l-i-a-n-i. The "i" goes before the "u." Every time. How hard can it be?

2. There's a job called "rapporteur?" Where does one apply?
10.11.2007 2:22pm
Kelvin McCabe:
The President of the United States, Hillary Clinton, issue's an order directing the U.S. Attorney's office to prosecute people (in federal court no less) who use a gun in self defense to shoot rapists.... because the act of shooting the rapist would be considered an international 'crime of violence'...against the rapist.

I assume that order would be made in secret? Because i havent stopped laughing since i read that. However hostile the U.N. is against guns and the U.S. for supplying so many of them; i have to believe RAPE can't be high on the list of activities that the U.N. feels need to be shielded or protected from gun violence. Couldnt you have used like burglarly or trespassing or something to make the point?? I realize its just a hypothetical... but im still laughing.
10.11.2007 2:58pm
Heeby Jeeby:
"... I'm not aware of a group of people trying to use annual inspection requirements to get all cars off the road."

Oklahoma repealed car inspections in part to prevent the EPA from hijacking them.
10.11.2007 3:23pm
RobbL:
Hey, wait a minute! what happened to the blessed originalism?

"all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."


Or is that only when you agree with the constitution?
10.11.2007 5:34pm
therut:
Huckabee did away with car inspections in Arkansas. You can now get your tags on the net. Do not have to go anywhere else. They were felt to be useless and a waste of peoples money and time. I love it.
10.11.2007 6:00pm
Wburl:
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; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

You left out a few parts. I will assume it was unintentional.
10.11.2007 9:02pm
demon (mail):
I for one would fight to the death to keep my firearms. This would be the quickest way to start a second civil war, or revolutionary war.
10.11.2007 11:18pm
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