International Law and the United States Constitution in Conflict: A Case Study on the Second Amendment

By Alonso, Joseph Bruce | Houston Journal of International Law, Fall 2003 | Go to article overview

International Law and the United States Constitution in Conflict: A Case Study on the Second Amendment


Alonso, Joseph Bruce, Houston Journal of International Law


I.   INTRODUCTION

II.  THE AMERICAN RIGHT TO BEAR ARMS
     A. Legal Status
        1. History
        2. Text
        3. Case Law
     B. Cultural Status

III. THE RELATIONSHIP BETWEEN INTERNATIONAL
     LAW AND UNITED STATES MUNICIPAL LAW
     A. The United States Constitution
     B. International Law
        1. Treaties
        2. Customary International Law
     C. Conflicts Between Treaties and the United States
        Constitution
        1. Conflicts Between Treaties and Municipal Law
        2. International Courts and United States
           Municipal Law
        3. United States Constitution and Treaties

IV.  GLOBAL GUN CONTROL
     A. Scope of "Small Arras and Light Weapons" and
        "Illicit Trafficking"
     B. Conference on Illicit Trade in Small Arras
        1. United States Presence at the Small Arms
           Conference
        2. Agenda
        3. Documents
        4. Future
     C. Convention Against Transnational Organized
        Crime
        1. The Crime Convention
        2. The Protocol Against the Manufacturing of and
           Trafficking in Illicit Firearms, Ammunition
           and Related Materials

V.   CONFLICTS BETWEEN INTERNATIONAL LAW
     AND UNITED STATES MUNICIPAL LAW
     A. Jurisdiction
     B. Involvement of a Untied States Citizen Absent an
        International Element
     C. Choice of Law

VI.  CONCLUSION: CONSEQUENCES OF THIS
     CONFLICT

I. INTRODUCTION

International Law and the United States Constitution in Conflict: A case study on the Second Amendment

Small arms gun control is the subject of recent international focus and law. The right to bear arms carries a unique significance in American law and culture and now faces the possibility of conflict with international gun control. Left unchecked, international gun control will compromise a fundamental human right as viewed by U.S. citizens and much of the government. This discussion explains the United Nations recent efforts of international global gun control and demonstrates how it conflicts with the American right to bear arms.

The first section of this article provides a description of the right to bear arms in the United States. It contains both the legal and cultural backgrounds of this fundamental right, as well as a description of the two most prominent theories concerning the Second Amendment. The second section provides a description of international law and United States domestic law and an analysis of the interaction between the two legal schemes. The third section provides a description of global gun control by detailing two recent conferences on the topic and focusing on international organizations and documents. This discussion focuses on the United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects, the United Nations Convention Against Transnational Organized Crime and its Protocol Against the Illicit Manufacturing of and Trafficking in Fire Arms, Their Parts and Components and Ammunition, and the potential International Criminal Court. The fourth section explains how conflicts between international law and a sovereign state's municipal law will be resolved. More specifically, it focuses on how global gun control conflicts with the United States legal and cultural right to bear arms. The fifth section predicts how the proposed international laws regarding gun control will conflict with the American right to bear arms. The conclusion of this Article then attempts to shed some light on issues of immediate concern, to predict how a conflict might arise in the future, and to recommend steps that may be taken to avoid such a conflict. The American right to bear arms plays a significant role in the balance of power between individuals, as well as between people and sovereigns, and any other political or social group. The Second Amendment was forged out of the Enlightenment's notion of natural rights during times of social and political oppression. …

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