Analysis by ATT Legal Network shows the #NRA’s claims on the #Armstreaty are unfounded

November 17 2011, 2:31 PM  by Oistein Thorsen

Despite a lot of noise by the National Rifle Association (NRA), that an Arms Trade Treaty (ATT) – currently being negotiated at the United Nations – would impose on the US constitutional right to keep and bear arms, the ATT Legal Response Network’s analysis show’s that there is nothing in the current draft that would infringe upon this right. Nothing in the proposed ATT would have any impact on the ability of individuals within the United States to acquire and possess firearms. That right would continue to be, as it is now, a matter to be determined solely by American law. 

At the July 2011 Preparatory Committee Meeting on the ATT, Wayne LaPierre, the NRA’s Executive Vice-president’s expressed concern that the proposed ATT might result in limiting or regulating individual rights with respect to the possession of firearms within the United States.[1] For the reasons set forth below, we believe that such concerns are unfounded, and reflect a misunderstanding of the nature and scope of the proposed ATT.

From the outset, negotiations with respect to the proposed ATT have focused on regulating international transfers of armaments, and have expressly disclaimed any intention to interfere with the right of any member nation to determine its own internal regulation of firearms within its territory. The original resolution in the United Nations General Assembly which authorized the commencement of the ATT negotiating process, A.61/89, was addressed exclusively to the quest for “common international standards for the import, export and transfer of conventional arms”, and did not relate in any way to the regulation of firearms by any member state within its own territory. All of the negotiations on the ATT have related exclusively to arms transfers across international borders. For example, the most recent Chairman’s Draft Paper to emerge from the July 2011 Preparatory Committee meeting, dated 14 July 2011, recognizes “the sovereign right of States to determine any regulation of internal transfers of arms and national ownership exclusively within their territory, including through national constitutional protections on private ownership.”

Despite the explicit exclusion of domestic gun control regulation from the scope of the proposed treaty, concerns have been expressed that the ATT would create an international enforcement bureaucracy, which might seek to intrude into that area. However, none of the proposals, which have been tabled in the negotiations on the ATT, contemplate the creation of such an international enforcement agency; enforcement of the treaty provisions would be the responsibility of each member nation.  In this respect the ATT would represent no change in the structure of existing U.S. law, which already provides for the comprehensive regulation of international arms transfers. (More information on current US law can be found here.[2])

Concerns have also been expressed that the inclusion of detailed record keeping provisions in the proposed ATT could somehow indirectly cause, or facilitate, restrictions on gun ownership within the United States. These concerns, also, reflect a misunderstanding as to the ATT’s proposed scope. Although various different proposals have been made as to the record keeping provisions of the ATT, all of these proposals would apply exclusively to international arms transfers; none would involve any sort of record concerning gun ownership by individuals within a member State.

The NRA representative also expressed concern that an ATT might require a U.S. citizen who wished to carry a firearm abroad to acquire some sort of permit.  This, also, reflects a misapprehension as to the scope of the proposed treaty, which would apply only to international arms transfers involving a change of ownership. An individual U.S. citizen wishing to carry a firearm into, or through, another country might indeed be obliged to obtain some sort of permit, but that situation exists now, as a result not of any treaty, but of the domestic laws of the other countries concerned. Obviously the Second Amendment and U.S, laws on gun control are not binding on other nations within their own territory.

For more information about the ATT Legal Response Network please e-mail

attlegalresponse [at] gmail [dot] com

 


[1] See LaPierre’s statement here: http://www.nraila.org/Legislation/Read.aspx?ID=6993

[2] Current U.S. law provides that:” In furtherance of world peace and the security and foreign policy of the United States, the President is authorized to control the import and the export of defense articles and defense services.” 22 U.S.C. 2778. The term “defense articles”, as defined in the International Traffic in Arms Regulations (ITAR), 20 C.F.R. 120-130, includes small arms and virtually all categories of military equipment. As the President’s delegate, the Secretary of State is responsible for “the continuous supervision and general direction” of international arms transfers. 22 U.S.C. 2752.  Among other things, the Arms Export Control Act (AECA) establishes as criteria for the licensing of arms transfers “whether the export of an article would contribute to an arms race, aid in the development of weapons of mass destruction, support international terrorism, increase the possibility of outbreak or escalation of conflict, or prejudice the development of bilateral or multilateral arms control or nonproliferation agreements…” 22 U.S.C. 2778 (2).  Other provisions require compliance with specific arms embargoes and with applicable resolutions of the United Nations Security Council. In addition to such general criteria, Congress has added specific provisions like the Restraint in Arms Sales to Sub-Saharan Africa Act, 22 U.S.C. 2773, which directs the President to “exercise restraint” in authorizing arms exports to sub-Saharan Africa in order to avoid diverting needed funds from economic development. In addition to detailed supervision by the State Department’s Directorate of Defense Trade Controls and by the Department of Defense, arms transfers are subject to continuing oversight by the Senate Foreign Relations Committee and the House Foreign Affairs Committee.