Amnesty International brief against right to bear arms
As the U.S. Supreme Court considers whether to enforce the Second Amendment right to “bear arms” in New York State Rifle & Pistol Association v. Bruen, an amicus brief from Amnesty International argues that doing so would violate international law. In this post, I’ll examine the arguments in the AI brief.
Back in the days when I was a monthly donor to AI, the group was known for its work in supporting political prisoners around the world. But for a long time AI has involved itself in many other issues, including global gun prohibition. Today, the leading international anti-gun organization is Control Arms, which was cofounded in 2003 by Amnesty International, Oxfam, and the International Action Network on Small Arms (IANSA).
For these groups, a complete embargo on all arms sales to Israel is a longstanding priority. See, e.g., Control Arms, Arms Without Borders: Why a Global Trade Needs Global Controls, Oct. 2006. To prevent Israel from manufacturing its own arms, the groups also favor a ban on commerce in arms-making materials, such as titanium.
It’s not just Israelis whom AI wants to disarm. The group enthusiastically supported hard left Brazilian president Lula da Silva’s 2005 ballot referendum to ban all gun sales. (The ban was defeated 64%-36%).
Even some ardent opponents of civilian gun ownership in general acknowledge that defensive arms are legitimate for people who are the targets of an active genocide campaign. AI disagrees.
The group did a good job of documenting how easy it was for the Islamist government in Sudan to use disarmement to perpetrate genocide against the African Darfuri tribes. Much of the killing was carried out by Arab gangs, the Janjaweed, who were armed by the Sudanese government. As AI reported, the majority of the Janjaweed had five or six guns per person. AI quoted a Darfuri villager: “none of us had arms and we were not able to resist the attack.” In the words of another villager, “I tried to take my spear to protect my family, but they threatened me with a gun, so I stopped. The six Arabs then raped my daughter in front of me, my wife and my other children.” Amnesty International, Sudan: Arming the Perpetrators of Grave Abuses in Darfur, Nov. 16, 2004.
The Pittsburgh Tribune-Review asked Amnesty International’s Trish Katyoka, director of Africa Advocacy for the group, whether the Darfur victims should be armed. Dimitri Vassilaros, “Gun Control’s Best Friend,” Pittsburgh Tribune-Review, Apr. 1, 2005. She answered in the negative:
“We at Amnesty International are not going to condone escalation of the flow of arms to the region.” Indeed, “You are empowering (the victims) to create an element of retaliation.” “Whenever you create a sword-fight by letting the poor people fight back and give them arms, it creates an added element of complexity. You do not know what the results will be.” In sum, “Fighting fire with fire is not the solution to genocide. It is a dangerous proposition to arm the minorities to fight back.”
AI’s position conflates self-defense against murder with “retaliation,” which is revenge after the fact. It’s true that armed victims may add “complexity” to a situation—especially for attackers who used to straightforwardly murdering helpless victims. When the victims are unarmed, you do “know what the results will be”: the victims will be exterminated. Adding complexity to avoid certain mass murders is a life-saving choice.
Part I of the AI amicus brief argues that judicial interpretation of the U.S. Constitution, including the Second Amendment, must subordinate interpretation of the Constitution to what AI claims to be international law. The argument is an extravagant extrapolation of a longstanding rule of statutory interpretation, namely the “Charming Betsy Canon.”
In the 1804 U.S. Supreme Court case Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804), Chief Justice Marshall wrote: “an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains.” The Charming Betsy ship was originally owned by an American but was later sold in St. Thomas to a Dane who sent it on a commercial voyage to the French island of Guadeloupe. The issue before the Court was whether the ship was forfeitable under a congressional statute that forbade American trade with France, which at the time had been engaged in the undeclared naval Quasi-War against the United States. The Marshall Court construed the statute narrowly, so as not to run counter to international law, which allows wartime trade by neutrals (such as Denmark).
In statutory construction, the Charming Betsy canon has been applied by American courts ever since. It has never been applied as a doctrine of constitutional interpretation. If it were, the First Amendment would be a certain casualty. Few if any nations and international treaties interpret “the freedom of speech, or of the press,” or “the free exercise” of religion as strongly as do American courts. Indeed, for most of American history judicial review of the constitutionality of legislation had very few counterparts in the world. Harvard Law Professor Vicki C. Jackson’s 2009 book Constitutional Engagement in a Transnational Era (2009) argues for use of international law in interpreting some constitutional provisions, but not the Second Amendment, which has the “specificity or distinctiveness . . . that makes transnational sources irrelevant.”
AI argues that “The Constitution was . . . drafted with international law as a set of background norms, and this Court should construe the Constitution accordingly.” However, none of the alleged “background norms” that AI cites existed in 1791 when the Second Amendment was ratified, or in 1868 when the Fourteenth Amendment made it enforceable against the states.
Indeed, the Constitution, including the Bill of Rights, was drafted and ratified an intent to counter contemporary norms. For example, while many nations allowed (and still allow) censorship, the Constitution generally forbids it. While unlimited arms control was (and still is) the norm in much of the world, America’s Framers wanted to ensure that government didn’t have a monopoly on the implements of violence because they knew, based on experience, that government could not be trusted with such a monopoly. Whatever the harmful consequences of preventing a government monopoly of force, the Founding Fathers (in 1789) and Founding Sons (in 1868) believed that the alternative was far worse.
Even if the U.S. Senate had ratified an international gun control treaty, “No agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints in the Constitution” Reid v. Covert, 354 U.S. 1, 16 (1957) (Black, J.) (plurality op.).
Along the way, AI accurately cites the 1897 case Robertson v. Baldwin, 165 U.S. 275, 283-86 (1897) for the proposition that the Court sometimes looks at the laws of other nations. In Robertson, a merchant seaman who had jumped ship argued that being forced to complete his labor contract amounted to involuntary servitude in violation of the Thirteenth Amendment. Citing the historic sea laws of Rhodes, Germany, the United Kingdom, and other nations, the Court observed that the laws forbade sailo
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