Is the OAS Firearms Convention Unconstitutional?

by Julian Ku

David Kopel, Theodore Bromund, and Ray Walser offer this Heritage Foundation essay analyzing (and attacking) the Inter-American Convention on the Illicit Sale of Firearms, Ammunition, Explosives and Other Related Materials (CIFTA).   Although critical, the essay doesn’t actually focus on the constitutional problems, since those are fairly unclear. In fact, the First Amendment problems seem larger than the Second Amendment problems.  Interestingly, although the writers agree that most constitutional defects could be cured by reservations, the fact that Harold Koh is  the legal adviser in the State Department leads them to argue that such reservations would not be made, or not defended in court if later challenged.

The conflict between the U.S.’s treaty obligations and the Constitution would also be useful to domestic advocates who argue that the Constitution is a barrier to U.S. compliance with “international norms.” Thus, the convention fits neatly into a broader transnationalist strategy to reduce the ability of the U.S. to govern itself through laws and institutions of its own making. By backing the convention, its advocates also advance the idea that the U.S. should act at the suggestion and under the guidance of other states and ultimately of the “international community.”

The defects in the convention are serious and pose prudential risks that cannot be remedied without a substantial number of U.S. reservations to the convention. It is particularly troubling that Harold Koh, a key Administration appointee, offered an unqualified endorsement of the convention before taking office and expressed doubt about the legal validity of reservations. While his criticism of the legality of reservations is baseless, the number and extent of the necessary reservations would be substantial and incompatible with the core of the convention. The U.S. can therefore neither properly ratify the convention with reservations nor safely ratify it without reservations.

I am not as worried as they are about this treaty, or about the legal validity of reservations. But it is true that I have a hard time imagining Koh defending the constitutionality of such reservations in court.

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