The Arms Trade Treaty: A Response to the 2nd Amendment Critique

In my last post on the Arms Trade Treaty, I explained some of the latest draft’s basic features, including restrictions on the ability of states-parties to import and export a variety of conventional arms. In this post I’ll share a few thoughts on the argument that the proposed treaty would violate the Second Amendment.

In general, I think the Second Amendment argument has some major weaknesses. First, most of the restrictions would simply have no effect on the right to keep and bear arms. Here’s the proposed list of regulated items: battle tanks, armored combat vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, and “small arms and light weapons.” As Heller explained, the Second Amendment’s reference to “arms” applies only “to weapons . . . not specifically designed for military use and . . . not employed in a military capacity.” The result is that all but the last items on the list—“small arms and light weapons”—plainly fall outside of constitutional protection. Moreover, even to the extent that the treaty applies to arms covered by the Second Amendment, significant portions of the treaty would not interfere with the right to “keep and bear” those arms. For example, provisions that would restrict exportation—in a sense the very opposite of “keep[ing]” and “bear[ing]”—from the United States surely raise no constitutional problem. And as a practical matter, it’s hard to see how the prohibitions on transfers in violation of Security Council measures or for the purpose of facilitating genocide, crimes against humanity, or certain categories of war crimes would interfere with the right of U.S. citizens to keep and bear arms.

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The Cop on My Porch

On December 1st, the Azana Salon and Spa in Brookfield reopens for business. Unless you have been out of the country for the last five weeks, you no doubt know that the salon was the scene of a mass shooting on October 21, 2012. A gunman entered the building and killed three women, including his wife, who was a salon employee. He wounded four other women and then killed himself. The shooter’s wife had recently obtained a temporary restraining order against him after numerous domestic violence incidents including, according to the Milwaukee Journal-Sentinel, an incident where the shooter slashed his wife’s tires in the spa parking lot.

Domestic violence has always been a devilishly difficult crime to prevent or prosecute. Abusers tend to be controlling and manipulative, and the visible physical injuries they inflict often pale by comparison to the emotional injuries. Victims are often psychologically abused and controlled to the point that they may feel responsible for the attacks, and they often stay in their relationships hoping for change in their partners. Abused women—and it is most often women—are afraid to leave their abusers and rightfully so. The time immediately after a woman leaves is the most dangerous time, since the abusers often succumb to rage and the need to control their victims. This may cause them to escalate the violence, and while Zina Houghton’s death is tragic, it is sadly not unusual for a battered woman to die at the hands of her abuser.

This tragedy reminded me of an experience I had last spring. The doorbell rang at 8 o’clock one night, and I flipped on the porch light so as to peer out before opening the door. A uniformed police officer was standing on my porch. This is almost never a good thing.

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