Gun Law Update: Obama Gun Treaty Skirts Congress
Gun Law Update
Gun Law Update
Gun Law Update
by Alan Korwin, Author
Gun Laws of America
April 24, 2009
www.gunlaws.com
--Trouble reading this? See it on line:
www.gunlaws.com/newstuff.htm
1. CIFTA Gun Treaty Removes Congressional Oversight
2. Amend Constitution by Statute, Using EPA Laws
3. National Ammo Shortage Is Suspicious
Permission to circulate this report granted.
1. CIFTA Gun Treaty Removes Congressional Oversight
(Note: How this treaty can overrule U.S. law or the Constitution itself is
discussed at the end, after the treaty analysis below.)
I've completed my review of the South America gun-control treaty that Mr.
Obama wants to get ratified.
It is known as CIFTA, the Inter-American Convention Against The Illicit
Manufacturing Of And Trafficking In Firearms, Ammunition, Explosives, And
Other Related Materials. It can be found here verbatim:
www.oas.org/juridico/English/treaties/a-63.html
-- EVERY aspect of the treaty introduces major required gun controls, most
of which will affect average citizens (as well as the targeted criminal
syndicates, dictators and other bad actors).
-- The controls go way past anything EVER attempted by gun-control groups
in the United States.
-- NONE of the proposed gun controls are likely to pass by themselves
through Congress. If the treaty is enacted they don't have to -- they
become law when the treaty is ratified.
-- Virtually NO PROTECTIONS FOR RKBA are to be found, and the wordings are
loose enough to allow all sorts of attacks on gun rights American enjoy
today.
-- The U.S. government under this treaty GAINS POWER to manage firearms
almost any way it would like to, without checks and balances.
-- Once signed, many of the restrictions and government intrusions become
MANDATORY, and the full Congress, already cut out of ratification (only the
Senate approves treaties) would be cut out of the implementation process
entirely.
-- Top to bottom registration of all firearms, ammunition, ammunition
components and other related materials is required if they are "in transit"
and records must be kept indefinitely. This vague language, and the
requirement to comply are a gun-banner's dream and a rights advocate's
nightmare.
-- "Transit licenses or authorizations" for transfers of firearms are
required for imported firearms, and loose language could include the same
for all domestic firearms.
-- Lengthy recordkeeping is required that directly conflicts with U.S.
law, and would be left up to bureaucrats and arbitrary controls and
implementation.
-- Home reloading of ammunition would become illegal and subject to severe
sanctions, without government licensing that is undefined and could include
almost any conditions, taxes and limitations, including scrupulous
inventorying, recordkeeping and unscheduled audit searches of people who
reload.
-- Similar licensing and controls will be required on anything made "that
can be attached to a firearm," known as "other related materials." This
includes components, parts, replacement parts and such items as wood or
composite stocks, slings, bayonets, bayonet lugs, sights, scopes, rails,
lasers, grips, flash hiders, suppressors, muzzle brakes and other
paraphernalia. Attaching any such parts without a government license would
be "illicit manufacture," a criminal act with undefined penalties.
-- Record sharing requirements ensure that any gun-owner data that must be
destroyed under current U.S. law can be easily stored abroad, and can be
retrieved at will as required under various international "cooperation"
clauses.
If I were advising Mr. Obama IN FAVOR of using this treaty for gun control
-- here is what I would suggest.
This creative vantage point helps me to underscore the serious threat the
treaty presents. I DO NOT approve of any of the anti-rights suggestions,
easily drawn from the treaty language -- they merely show you what
Americans face. Everything I outline below comes directly from the treaty
itself. Be sure you're sitting down.
Alan Korwin, Author
Gun Laws of America
Dear Mr. President,
We commend your common-sense support of the CIFTA Treaty for reducing
illicit arms manufacture and gun trafficking. This is a brilliant stratagem
in the exhausting effort to rid our country of the scourge of gun violence.
With the treaty in place and ratified by the Senate, you will be obligated
to take certain steps with regard to private ownership of firearms that we
have never been able to move through the houses of Congress. Further, you
will be able to take these actions unilaterally, making swift change
possible and, under international obligation to act you are insulated from
direct criticism.
Our attorneys assure us the steps we outline here are in full compliance
with international law and the terms of the treaty itself. Article VI of
the U.S. Constitution unambiguously gives such a treaty a degree of
supremacy over the nation, its laws, the states and the public (even though
some in the powerful gun lobby deny this or point to questionable court
precedents). This is especially useful as we adapt to a global economy,
world courts, an empowered U.N. and environmental concerns on a planetary
scale.
In addition, we know that if a law can be interpreted to either spread or
curtail the proliferation of arms in the hands of average people, the
common-sense interpretation must be to curtail arms whenever possible.
CIFTA provides the perfect platform for this very reasonable approach.
There will be little disagreement that CIFTA's surface goal of keeping
arms out of the hands of dictators, tyrants, terrorists, violent criminal
cartels, syndicates and gangs, insurgents, non-state actors, and genocidal
regimes is a worthy goal. The value for domestic gun control here and
abroad is equally worthy, and lies in virtually every measure required to
track and control arms. We are eager to see your signature on this
important step forward for the safety of Americans.
[Language from CIFTA appears in brackets.]
Statement of Purpose
["...the urgent need to prevent, combat, and eradicate the illicit
manufacturing of and trafficking in firearms, ammunition, explosives, and
other related materials, due to the harmful effects of these activities on
the security of each state..."]
Note that "trafficking" is not explicitly limited by "illicit" and this is
critical. It is perfectly reasonable to bring all firearms trafficking
under control to properly manage the portion that is illicit or
undesirable. This construction is precise and appears throughout the
treaty.
["give priority... because of the links of such activities with drug
trafficking, terrorism, transnational organized crime, and mercenary and
other criminal activities"]
The unconditional inclusion of "other criminal activities" assures a broad
jurisdiction for every facet of existing and not-yet-defined gun crime,
even minor and paperwork violations, if so desired.
["international cooperation... appropriate measures at the national,
regional and international levels... pertinent resolutions of the United
Nations General Assembly on measures to eradicate the illicit transfer of
conventional weapons and on the need for all states to guarantee their
security... support mechanisms such as the International Weapons and
Explosives Tracking System (IWETS) of the International Criminal Police
Organization (INTERPOL)"]
The emphasis on globalization dovetails smoothly with current plans.
Potential exists to wed NICS and IWETS functionality.
["a 'know-your-customer' policy for dealers in, and producers, exporters,
and importers of, firearms, ammunition, explosives, and other related
materials is crucial for combating this scourge"]
Firearms dealers are specifically included in the web of CITRA.
["to eradicate illicit transnational trafficking in firearms is not
intended to discourage or diminish lawful leisure or recreational
activities such as travel or tourism for sport shooting, hunting, and other
forms of lawful ownership and use recognized by the States Parties]
This is one rare spot where "trafficking" and "illicit" are connected, and
then only for transnational acts. We do not expect this to inhibit any
reasonable domestic gun-control activity associated with CIFTA. The sapient
inclusion here of "acceptable" gun activity is neatly compartmentalized and
removed from the ability to apply controls.
["this Convention does not commit States Parties to enact legislation or
regulations pertaining to firearms ownership, possession, or trade of a
wholly domestic character"]
While the treaty doesn't seem to require Parties to enact domestic gun
laws, the careful wording does not prevent Parties from enacting domestic
gun laws either. And it additionally requires that the parties "will apply
their respective laws and regulations in a manner consistent with this
Convention," binding future actions into compliance, while giving a
comfortable appearance of autonomy. Our attorneys were impressed with how
well this is drafted.
Article I, Definitions.
The definitions are suitably robust and need little description here.
However, "Illicit manufacture" includes any ammunition made, "b. without a
license from a competent governmental authority of the State Party where
the manufacture or assembly takes place;". This unequivocally places
dangerous homemade "reloading" operations under any reasonable controls
deemed necessary. Such controls are not optional. Any so-called hobbyist
operating outside a yet-to-be designed licensing scheme would be in
violation. Penalties are to be independently determined by the Parties.
Also note that "an accessory that can be attached to a firearm" is
included as "other related materials," and also subject to illicit
manufacture rules. This provides the broadest controls over anyone making,
transporting, possessing or transferring such items as wood or composite
stocks, slings, bayonets or bayonet lugs, sights, scopes, rails, lasers,
grips, flash hiders, suppressors, muzzle brakes and other paraphernalia.
The tax dollars from this new revenue source is not determined but believed
to be potentially large.
Article II, Purpose.
Reiterates introductory remarks, promotes exchanges of information.
Article III, Sovereignty.
Ensures that territorial jurisdictions and a nonintervention policy are
maintained.
Article IV, Legislative measures.
["States Parties that have not yet done so shall adopt the necessary
legislative or other measures to establish as criminal offenses under their
domestic law the illicit manufacturing of and trafficking in firearms,
ammunition, explosives, and other related materials... the criminal
offenses established pursuant to the foregoing paragraph shall include
participation in, association or conspiracy to commit, attempts to commit,
and aiding, abetting, facilitating, and counseling the commission of said
offenses."]
Once the treaty is signed, laws (if needed) or "other measures"
(regulations, memoranda of understanding, policies, operations manuals, AG
opinions, basically any legal construct without limitation) are required to
implement the terms of the treaty. This is excellent for our purposes. We
believe the legal framework exists to handle most if not all the
requirements outside cumbersome legislative channels, facilitating easy
adoption of the treaty's conditions.
Some objections may be raised by opposition leaders or the gun lobby, but
the signed treaty puts this game well into the home stretch by the time
such annoyances arise.
Article V, Jurisdiction.
["Each State Party shall adopt such measures as may be necessary to
establish its jurisdiction over the offenses"]
CIFTA doesn't even contemplate statutes, just "measures" for establishing
jurisdiction, including rules for extradition.
Article VI, Marking of Firearms.
Serial numbers and similar markings already required on firearms by U.S.
law become an international standard, and now include place of manufacture
and name and address of importers, plus special marks for arms retained for
official use. There is no enforcement mechanism for rogue nations that do
not comply.
Article VII, Confiscation or Forfeiture.
["States Parties shall adopt the necessary measures to ensure that all
firearms, ammunition, explosives, and other related materials seized,
confiscated, or forfeited as the result of illicit manufacturing or
trafficking do not fall into the hands of private individuals or businesses
through auction, sale, or other disposal."]
The treaty, when signed, will once and for all end the intolerable
practice of returning guns and accessories back to the public after they
have fallen into police hands. Our legal opinion is that even recovered
stolen guns would also be unreturnable, since these have been illegally
trafficked as defined. State laws allowing gun resales and auctions will
become null and void, under the U.S. Constitution's supremacy clause. This
may impact some police departments that have come to rely on such revenues,
but the net gain in public safety and gun control is more than worth the
small loss, which could perhaps be mitigated through use of bailout funds
or other government monies.
Article VIII, Security Measures.
["States Parties, in an effort to eliminate loss or diversion, undertake
to adopt the necessary measures to ensure the security of firearms,
ammunition, explosives, and other related materials imported into, exported
from, or in transit through their respective territories."]
It seems clear that the only way to effectively meet this common-sense
security obligation (eliminate loss or diversion of firearms and related
supplies) is to have universal registration and tracking of all firearms in
the country. This long-sought elusive goal now within reach. The phrase "in
transit" effectively touches every firearm, all ammunition and related
gear.
Article IX, Export, Import, Transit Licenses
Port of entry and exit requirements already in place cover this section.
Article X, Strengthening Controls at Export Points
Same as above.
Article XI, Recordkeeping
["States Parties shall assure the maintenance for a reasonable time of the
information necessary to trace and identify illicitly manufactured and
illicitly trafficked firearms to enable them to comply with their
obligations under Articles XIII and XVII."]
This provision provides clear authority to establish large scale
comprehensive gun-registration databases. The "reasonable time" for
recordkeeping had been determined by the FBI, under former AG Reno, as
permanently.
We do anticipate some political objections to this provision, since U.S.
laws place some restrictions on firearm recordkeeping on the public.
However, as we learned under Attorney General Janet Reno, during the
original implementation of the NICS background checks, government systems
can be set up in any manner desired with little effective oversight, and
only after prolonged and arguable challenges need the systems be changed.
The true nature of such complex systems remains difficult to ascertain, is
difficult to monitor on an ongoing basis, can be modified in future
iterations to more closely reflect desired policy without raising warning
flags, and system backups maintained by allies do not fall under the same
controls as domestic versions.
A review of the remaining 19 Articles of the treaty will be provided
shortly. These are minor and deal largely with exchange of information
among the parties, cooperation, training (for which the U.S. can play a
significant role by financing and controlling programs among the Parties),
mutual legal assistance (another area where the U.S. can exert significant
influence), "controlled delivery" or sting operations, extradition of U.S.
citizens, and structural elements such as a consultative committee,
periodic meetings, ratifications, withdrawal, effective dates and dispute
settlements.
An interesting "Annex" exempts certain items from the definition of
explosives, including:
["compressed gases; flammable liquids; explosive actuated devices, such as
air bags and fire extinguishers; propellant actuated devices, such as nail
gun cartridges; consumer fireworks suitable for use by the public and
designed primarily to produce visible or audible effects by combustion,
that contain pyrotechnic compositions and that do not project or disperse
dangerous fragments such as metal, glass, or brittle plastic; toy plastic
or paper caps for toy pistols; toy propellant devices consisting of small
paper or composition tubes or containers containing a small charge or slow
burning propellant powder designed so that they will neither burst nor
produce external flame except through the nozzle on functioning; and smoke
candles, smokepots, smoke grenades, smoke signals, signal flares, hand
signal devices, and Very signal cartridges designed to produce visible
effects for signal purposes containing smoke compositions and no bursting
charges."]
END OF ANALYSIS
The Supremacy Issue
Numerous attorneys and others wrote to challenge my position in Page Nine
#63
www.gunlaws.com/Page9Folder/PageNine-63.htm
that Mr. Obama's
run-around gun treaty could conveniently bypass the legislative process and
the Constitution, like John M. says here:
"While your item in "Page 9" about Congress and the Obamanation
Administration using an Inter-American Treaty on 'arms trafficking' to do
an end-run around the Second Amendment is certainly scary, I'm not ready to
concede (as you appear to do) that a treaty supersedes the Constitution
under Article VI." He goes on to describe why Art. VI and other safeguards
will protect us.
Many people went into greater detail. Cases were cited (Reid v. Covert;
Missouri v. Holland; Whitney v. Robinson; Cherokee Tobacco). One
high-placed lobbyist felt fairly safe because, "While an international
treaty bypasses House consideration, it requires two-thirds of the Senate
for ratification - a tall order even in ObamaNation."
Other people were less sure, like Chuck G. here: "I'm still up in the air
about it as I've heard all my life exactly what you stated."
I too always heard what he had heard -- treaties supercede the
Constitution -- and always thought it odd. Go read Article VI, cl. 2
yourself. The language is crystalline. One attorney at a high-profile think
tank believes, "The federal government will have arguable legal authority
to seize our guns and ammunition if this treaty is signed." So...
1. Opinions on the supremacy issue are inconsistent (though often
adamant).
2. People who say the treaty won't be a problem point to a number of
SCOTUS decisions, and perhaps stare decisis. Maybe that makes those folks
fully comfortable with where Mr. Obama is heading on this. Less so for me.
3. SCOTUS precedents are increasingly ignored by those in power, with
groovy rationalizations each time. And SCOTUS decisions have so eviscerated
key elements of the Constitution, my faith there is shaken, not stirred.
4. The courts, which should provide more balance, a) don't, b) are run by
the very people they're supposed to balance, and c) all too often use the
completely worthless rational-basis test, knowing it's worthless, to allow
every short-of-insane law to stand.
5. Given a choice of support for gun-rights or outright gun bans, we know
which way this administration will go.
6. Four of the current SCOTUS Justices have expressed interest in defining
U.S. law from foreign sources, leaving us one vote away from a new
understanding of the supremacy clause.
7. Perhaps the biggest issue, though, making all else moot, is that new
regs you can easily forecast coming from this treaty will be portrayed as
a) required by international law so we're only doing what's right, b)
required by Article VI however you like to read it, c) consistent with
precedent, and most of all, d) not violative of the Second Amendment so no
big deal.
After all, if, for instance, every home reloading enthusiast simply has to
get a government license, pay an annual tax called a "fee," pass a test,
accept "routine" BATFE searches without notice like FFLs must, and keep
detailed records so government can fulfill its obligation to track all guns
and ammo, backed up with threats of prison time for paperwork errors or a
miscount of a single round, what's wrong with that?
Besides, you have an attorney general to protect you who's on record
saying a ban on any working firearm in your own home is acceptable under
2A, so, what me worry?
You have a choice: assume the treaty won't be a problem, the supremacy
clause will void any abuse and just let Mr. Obama enact the treaty, or
remain a bit more skeptical of this man's motives. Choose wisely.
Alan.
P.S. If Mr. Obama is indeed a Marxist at heart as so many people fear and
some evidence tends to support, a debate over constitutional principles
would be pointless.
2. Amend Constitution by Statute, Using EPA Laws
"The National Parks Service has announced it will not challenge a court
order that temporarily stops the late-term Bush administration policy of
allowing CCW-permit holders to carry in National Parks."
That's the news media's backwards way of saying the bureaucrats running
the National Parks are delighted they don't have to allow CCW-permit
holders to exercise their civil rights in the parks, at least for now.
U.S. District Judge Colleen Kollar-Kotelly issued a temporary injunction,
favoring a lawsuit brought by gun-control and environmental activists. She
gave the Interior Dept., which runs the parks, until April 20 to respond.
The idea that parks must first undergo environmental-impact approval
before partially honoring the right to keep and bear arms is a complete
subterfuge and extremely dangerous on several grounds.
Most obvious, there is NO environmental impact of carrying an unfired gun
in a park or elsewhere. Even fired, at the rate CCW permitees fire their
guns, the impact is so small it is essentially unmeasurable. The District
Court/EPA/Brady effort is a transparent deception, used by hoplophobes and
gun banners, to stop a ruling that would restore limited civil rights (for
government permitees only) and could save lives and deter crime.
The original 25-year-old ban was created during the Reagan era, reversing
the right to carry that existed on these public lands since the nation's
founding.
A bigger problem however is that, if EPA can be used to stop mere
concealed carry on the basis of enviro-impact, what does that say for any
form of outdoor marksmanship? The impact difference between carry and use
is obvious. If the precedent of allowing EPA to regulate CCW stands, this
invites the wholesale destruction of any outdoor target practice on public
land. Officials know this. Nationwide, public land is a mainstay of
open-air exercise of the right to bear arms -- for practicing for
proficiency and safety.
Using environmental threats to deny the civil and human right of self
defense and the constitutional right to keep and bear arms is environmental
terrorism.
The biggest problem though is that this repugnant scheme uses a statute
and its regulations -- the EPA machinery -- to suppress the Constitution
itself, namely the Second Amendment.
An ongoing and increasing problem, EPA and numerous other federal
agencies, FHA, FCC, FTC, FDA, TSA, EEOC and others have suppressed First
Amendment free-speech guarantees for decades. Now, using EPA legislation,
people in charge are making inroads into infringing RKBA out of existence.
Such activity is patently illegal. The terms of the Constitution can only
be changed by amendment, as described in the Constitution itself, and not
by law making from Washington or anywhere else.
People suggesting or implementing such actions should be quickly removed
from office for violation of their oath, and brought up on charges of
denial of civil rights and abuse of power. That had better happen soon,
because we are reaching a tipping point. How many abuses and usurpations
need we endure before people take to their pitchforks?
3. National Ammo Shortage Is Suspicious
Call me skeptical, but something doesn't smell right about the length and
severity of the ammo shortage in America. We're not short of ammo, we're
out. Since November. This is the end of April. WalMart shelves are bare.
Big 5 Sports here in Phoenix got its weekly truck and it had 3 boxes of
.38s (150 rounds), no 9mm, no .357, no .380, no .45. Dealers I've asked
uniformly say their orders are just not being filled, and they get no word
on what or when they'll get more.
Anyone with DIRECT connections to ammo makers is encouraged to ask
questions, get names, and let me know what you hear. I've seen the
unsubstantiated rumors on the web that there's a conspiracy, but the talk
sounds wacky and the parts don't make sense. Why would for-profit companies
voluntarily cut back production in hard economic times when demand has
exploded?
That said, note that most American gun owners are not short of ammo. They
have plenty socked away. They just can't buy more, or replace supplies used
at the range and elsewhere. The situation is most acute however for
newcomers, of which there are hundreds of thousands scared into buying
their first gun, who learn quickly that a new gun without some shells isn't
much of a good deal.
Also note that this panic/obsessive buying is a shot across the bow for
the temperature of America -- what would it take to trigger similar runs on
supplies of toilet paper, bottled water, tobacco, liquor, batteries, light
bulbs, canned goods, coffee, medicines and any other commodities people
depend upon. If ammo, a minor niche product is any gauge, we live in
delicate times.