|Real Danger of the UN’s Arms Trade Treaty Is in the Interpretation, Not the Text|
By Ashton Ellis
Thursday, July 19 2012
Ever heard of transnational legal theory?
If the Obama Administration gets its way, the United Nations Arms Trade Treaty being negotiated in New York this month could become the kind of international legal document that transnational judges inside the United States will use to gut the Second Amendment.
One of the leading American lawyers in the transnational movement is former Yale Law School dean Harold Koh. While at Yale, Koh published an academic article titled, “Agora: The United States Constitution and International Law: International Law as Part of Our Law.” In it, Koh argued that “[in] an interdependent world, United States courts should not decide cases without paying ‘a decent respect for the opinions of mankind.’”
By using the phrase, “a decent respect for the opinions of mankind,” Koh was quoting an excerpt from the Declaration of Independence. The goal was to justify his belief that United States judges should look to the text and history of other countries’ legal documents when interpreting the U.S. Constitution.
But in doing so Koh took the phrase woefully out of context.
The entire sentence reads:
When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect for the opinions of mankind requires that they should declare the causes which impel them to the separation.
Anyone familiar with the basics of American history knows that Koh’s use of the Declaration is a deliberate misuse of the document’s text. When Thomas Jefferson wrote about “a decent respect for the opinions of mankind,” he was saying that Americans owed it to the world to explain why they were declaring their independence from Great Britain. And while the Declaration relies on universal laws about human nature to make its case, the fulfillment of the Declaration’s theory is enshrined in the Constitution – not in modern pronouncements from foreign powers.
Dr. Ted R. Bromund of the Heritage Foundation adds, “Koh is thus asserting that the document by which the U.S. cut all legal and political ties from Great Britain supports the citation of and reliance upon the legal opinions of foreign courts in the United States and, indeed, that U.S. courts ‘should not decide’ cases without considering foreign opinions.”
Koh’s opinion matters because from Yale he became the top legal advisor to the U.S. State Department, the same State Department helping to negotiate the UN’s Arms Trade Treaty in New York this month.
One needs look no further than the name of the UN subsidiary pushing the ATT to understand the treaty’s ultimate goal. The United Nations Office of Disarmament is oriented toward less gun use, not responsible gun use. Indeed, the prime movers of the ATT for the last decade have been ardent gun control non-governmental organizations like Amnesty International, Oxfam and Control Arms. Their involvement helps ensure that whatever text is included in the ATT will incline sharply against individual gun ownership.
Adding Koh’s transnational legal theory to the mix makes the threat to the Second Amendment even worse.
The reason transnational legal theory is so dangerous to America’s constitutional system is that all a transnationalist needs to work with is an international legal document that, if applied to the Constitution, would change the Constitution to fit the international norm. It could be a court opinion by a foreign country’s highest court. It could be a statement by a United Nations subsidiary. Or, in the case of the ATT, it could be an international treaty that the United States doesn’t even sign.
The key for a transnationalist is that so long as an international legal opinion exists, American courts “should not decide cases” before consulting foreign sources.
Thus, under Koh’s theory, the Obama Administration could refuse to sign the ATT, and yet American judges and lawyers would still be able to use the treaty as legal authority.
This helps explain why so much of the criticism of the ATT from conservatives like U.S. Senator Jerry Moran (R-KS), Rep. Mike Kelly (R-PA) and the National Rifle Association’s Wayne LaPierre has focused on arguing for explicit textual language in the treaty acknowledging a private individual’s right to own a gun for the purposes protected by the Second Amendment.
Without such explicit guarantees, it’s easy to see how a transnationalist like Koh – himself rumored to be on the shortlist for a federal judgeship – could use the ATT to gut Second Amendment rights.
Let’s assume that as expected the ATT results in vague compliance terms with no meaningful enforcement mechanism. When serial cheaters like Iran and Russia violate the intent of the ATT – for example, by arming Hamas or Syria – more UN conferences will be called to further define the terms. To a transnationalist, this statement becomes part of international law.
If an international consensus – however defined – emerges among a bloc of nations or courts that individual gun ownership poses a dangerous risk to national security, then a transnationalist like Koh can argue that American courts should show “a decent respect for the opinions of mankind,” and defer to foreign opinions inconsistent with American law.
Combating transnationalist legal theory involves being vigilant at all times in all places. Koh occupies an incredibly influential perch at the State Department. After his service is completed he will no doubt return to an equally influential position in the legal academy. Armed with tenure and financial support from likeminded donors, Koh and his cohorts will continue to bombard judges, attorneys and law students with a method of constitutional interpretation that substitutes foreign opinions for the text and history of the Constitution.
Make no mistake: The United Nations Arms Trade Treaty being negotiated by the Obama Administration is a serious threat to Americans’ Second Amendment rights, but it’s not the actual text that’s the most dangerous. It’s the interpretations that are likely to flow from it.
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