By Dave Kopel
America's 1st Freedom, July 2009. More by Kopel on Obama appointments and gun control.
Do you think that American gun laws should be more like those of other, more restrictive countries? Would you like the United Nations to help determine the meaning of the Second Amendment?
If so, then your man of the hour has arrived. His name is Harold Koh.
Harold Hongju Koh is dean of the Yale Law School. By all accounts, he is brilliant, personable and well liked. And he has been nominated for the position of legal adviser to the United States Department of State.
The position involves far more than providing behind-the-scenes legal counsel to Secretary of State Hillary Clinton. The legal adviser formulates and presents the position of the United States globally on legal issues, including negotiating, drafting and deciding the meaning of treaties and United Nations resolutions; representing the United States in international organizations and courts; and interpreting U.S. policies on international law.
As Koh himself has pointed out, the “skill and maneuvering of particular well-positioned individuals … serving as key institutional chokepoints” can tremendously influence America’s relation with international law. The position of State Department legal adviser is perhaps the most powerful of all such positions.
Accordingly, the legal adviser ought to be a strong defender of American rights, interests and liberties against foreign encroachment. But Koh has made it very clear that his aim is just the opposite: to undermine and constrict those rights, including the Right to Keep and Bear Arms.
Writing in the Stanford Law Review about “the most problematic face of American exceptionalism,” the type that Koh ranked highest in “order of ascending opprobrium,” he complained that the United States did not “obey global norms.” Among his examples was that of “claiming a Second Amendment exclusion from a proposed global ban on the illicit transfer of small arms and light weapons.”
His views on gun policy are elaborated in A World Drowning in Guns, a speech published in the Fordham Law Review in 2003. In that speech, Koh declared, “If we really do care about human rights, we have to do something about the guns.” That “something” is “a global system of effective controls on small arms.”
In that speech Koh also expressed his disappointment that the 2001 United Nations gun control conference had not led to a legally binding document. Koh placed much of the blame on John Bolton, who, in representing the United States at the U.N., had declared his opposition to restraining the lawful trade in firearms; subsidizing anti-gun advocacy; limiting arms sales only to governments; and any final document which, in Bolton’s words, “contains measures abrogating the constitutional right to bear arms.”
Koh admitted, “We are a long way from persuading governments to accept a flat ban on the trade of legal arms.” He urged that the next steps be the creation of international arms registries; giving non-governmental organizations—e.g., the International Action Network on Small Arms (IANSA)—power to monitor government compliance with international gun control; and “stronger domestic regulation.” (Emphasis in original for both quotes.)
As a mechanism for implementing the international gun control agenda, Koh pointed to the Organization of American States (OAS) arms control treaty. In April, President Obama announced that he would push for U.S. Senate ratification of that treaty. The OAS treaty needs to be supplemented, Koh said, with “supply-side controls in the United States.” As an example, he pointed to the “particularly intriguing idea” of “promoting ‘smart’ or perishable ammunition.” That is, “bullets that would degrade and become unusable over time.”
American legal scholars were already being helpful, Koh explained: First, they were producing constitutional research to rebut John Bolton’s view of the Second Amendment. Second, their empirical research was refuting the notion “that more guns produce less crime in American society.” Instead, according to Koh, the research showed that “more guns have been associated with more, rather than less, crime.”
He urged the audience not to believe that it was unrealistic to achieve the goal of “harmonizing our own national approach with those of other countries.”
In concluding the speech, Koh recalled that after he left the State Department in 2001, having served as President Clinton’s assistant secretary of state for democracy, human rights and labor, he felt there had been “too much work left undone. After a few sleepless nights, I wrote for myself a list of issues on which I needed to do more in the years ahead. One of those issues was global regulation of small arms.”
How can Koh and the Obama administration implement their vision of global gun control?
Hofstra University Law Professor Julian Ku writes that Koh has “argued for a ‘Constitutional Charming Betsy Canon’ that would guide courts in the interpretation of the U.S. Constitution.” (See Ku’s April 9 entry on the law professor weblog opiniojuris.org.)
In the 1804 U.S. Supreme Court case of Murray v. Schooner Charming Betsy, 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 canon (rule of legal construction) has been applied by many American courts ever since. But to elevate Charming Betsy to a canon of constitutional construction would mean that whenever there is ambiguity, the Constitution should be construed to match international law.
Thus, the Constitution would be subservient to international law, since almost every constitutional case that reaches the Supreme Court involves some kind of ambiguity: What kind of punishment is “cruel and unusual”? What searches and seizures are “unreasonable”? Does the protection of “the freedom of speech” include “hate speech”? If not, does “hate speech” include, as some people have asserted, the speech of the National Rifle Association, Ann Coulter or Ted Nugent? What kind of “Arms” are encompassed in the Second Amendment, and what kinds of controls amount to the right being “infringed”?
Koh believes that the Supreme Court “must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law.” The State Department legal adviser has traditionally played a leading role in shaping the U.S. government’s arguments before the Supreme Court regarding international law.
Koh’s agenda includes constricting the First Amendment, as well as the Second. In the Stanford article, Koh wrote: “Our exceptional free speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet. In my view, however, our Supreme Court can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation.”
Not coincidentally, the four Supreme Court justices who dissented in D.C. v. Heller are already strong advocates of using foreign law to determine the meaning of the American Constitution. In a 2006 article for the Penn State Law Review, Koh praises what he calls the court’s “transnationalist faction” and derides “the nationalist faction.” Just one appointment to the Supreme Court could put the transnationalists firmly in control.
Of course, what cannot be accomplished directly through a Supreme Court ruling can be done in other ways. In 2002, President George W. Bush withdrew the U.S. signature from the International Criminal Court (ICC) treaty because he did not want American citizens to be subject to a court whose rules for fairness and due process are vastly below American constitutional standards. So Koh recommended that crafty ICC advocates find ways to “provoke interactions between the United States government and the ICC”—such as convincing the U.S. to supply evidence in an ICC case. Then, in Koh’s words, the U.S. cooperation with the ICC “could be used to undermine” the president’s withdrawal from the treaty. The ICC could claim that the U.S. cooperation has served to “constitute a de facto repudiation” of the “act of unsignature.” Then, the ICC could assert that it has jurisdiction to prosecute American citizens.
The proposed ICC ploy is one example of Koh’s urging “American lawyers, scholars and activists” to “trigger a transnational legal process,” of “transnational interactions” that will “generate legal interpretations that can in turn be internalized into the domestic law of even resistant nation-states.”
In the context of the right to arms, that “resistant nation-state” would seem to be the United States of America.
Further, Koh wants “human rights advocates” to litigate “not just in domestic courts, but simultaneously before foreign and international arenas.” Remember, in Koh’s view, anti-gun advocacy is a very important form of human rights advocacy. Might Hillary Clinton’s State Department become a behind-the-scenes promoter of international anti-gun lawsuits—just as her husband’s administration worked behind the scenes to promote anti-gun lawsuits in the United States?
Advocacy groups on the outside can be aided by allies on the inside, as Koh explained in the Houston Law Review: “These governmental norm sponsors work inside bureaucracies and governmental structures to promote the same changes inside organized government that non-governmental norm entrepreneurs are urging from the outside.”
Another weapon in Koh’s arsenal is what is called “customary international law.” That’s not as much fun to say as “Constitutional Charming Betsy Canon,” but it's just as important.
One form of international law is “positive law,” which is created by written documents in the form of a law. Examples include treaties, bilateral agreements and so on.
With origins long before wide-ranging international treaties became common, customary law has also been part of international law. Customary law arises from the common behavior of nations who believe that their actions are compelled by international law. For example, in the 18th century, “civilized” nations did not execute enemy soldiers who had been captured, nor did they arrest and imprison ambassadors from foreign nations, even if they were suspected of a crime.
These customary practices were considered by the nations themselves to be legally mandatory, even though there were no applicable treaties about the laws of warfare or the immunities of diplomats. Thus, “customary law.”
In a normal sense, customary law is defined by what nations actually do based on their beliefs about legal requirements. However, Koh and his fellow transnationalists have been hard at work to drastically expand customary law. For example, United Nations General Assembly resolutions have no legal force; they constitute nothing more than the opinion of the majority of the General Assembly. Likewise, pronouncements at meetings conducted by non-governmental organizations (NGOs) are not standard sources of customary international law.
But the transnationalists are adept at cherry-picking miscellaneous items that have no legal force in themselves, bundling them together and adding a far-fetched interpretation of a barely-related clause in a couple of treaties, and declaring their product to be “customary international law.”
Consequently, as State Department legal adviser, Koh could make a pronouncement that international law requires repressive gun controls. Among the sources he could cite is the United Nations Human Rights Council Subcommittee on Human Rights, which has already declared that there is no human right of self-defense, and that there is a mandatory international human right to extremely restrictive gun control. This right is supposedly derived, in part, from the “right to life” guaranteed by various human rights treaties, including the International Covenant on Civil and Political Rights, which the United States Senate has ratified.
Now the final step: Koh contends that American courts must apply customary international law as part of federal common law. As a federal law, it would trump any arms rights protections in state constitutions and statutes.
In the United States, there would be some judges who would not take Koh seriously, and others who would simply use his pronouncement to support an anti-gun result they wanted to achieve anyway. But there might be other judges who perhaps have little interest in the Second Amendment one way or the other, and who are cautious about ensuring that their decisions do not cause trouble for the United States abroad. These judges may be swayed by a State Department declaration that narrow interpretation of the right to arms is necessary to keep the United States from violating its international legal obligations.
In his Senate Foreign Relations Committee confirmation hearing, Koh said that the Second Amendment had legal priority over international law. But this is a meaningless concession, since Koh’s objective is to make the interpretation of the meaning of the Second Amendment conform to the anti-gun, anti-self defense standards of the United Nations and the other transnationalists.
Harold Koh aims to “bring international law home.” If he succeeds, the Second Amendment may become an outcast in its homeland.
Further reading: Ed Whelen of the Ethics & Public Policy Center has written a superb multi-part series on Koh.
Articles by Harold Koh:
“A World Drowning in Guns,” 71 Fordham Law Review2333 (2003).
“Is International Law Really State Law?” 111 Harvard Law Review1824 (1998).
“On American Exceptionalism,” 55 Stanford Law Review1479 (2003).
“The 1998 Frankel Lecture: Bringing International Law Home,” 35 Houston Law Review623 (1998).
“International Law as Part of Our Law,” 98 American Journal of International Law43 (2004).
“Why Transnational Law Matters,” 24 Penn State International Law Review745 (2006).
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