You can listen here.
My comment, which got chopped down to a sound bite (see the ellipses), alluded to interplay of Missouri v. Holland and the new U.N. treaty. What if the United Nations passes a resolution banning the private ownership of firearms, pursuant to this treaty. Or, if an international law norm develops limiting use of guns to military uses. Under Heller, Congress could not pass a law banning the private ownership of firearms. But could Congress, pursuant to this treaty, pass a law that banned the private ownership of guns? If Holmes’s dictum is to be believed, then the answer is yes. Congress’s powers to regulate firearms is expanded beyond what the Second Amendment would otherwise allow, pursuant to the treaty. As a practical matter, this will never, ever happen. I discussed this topic several times here and here and here.
Here are my comments:
As is, the Arms Trade Treaty has no direct effect on domestic weapons trade or individuals’ right to bear arms. But Josh Blackman, professor at South Texas College of Law, says the concern by many isn’t so much the Arms Trade Treaty itself but what may come after.
“If the U.S. were to join this treaty and the U.N. passed various rules that limit the ownership of private arms, the U.S. would have to enforce it. And in theory, the United States Congress could pass rules pursuant to this treaty that would limit the right to bear arms among American citizens. … The easiest example is if the U.N. passed a rule saying that the private ownership of firearms not related to military usage is illegal and the United States Congress could pass a rule pursuant to that.”
As an aside, maybe we shouldn’t read Holmes so expansively.
“I wrote so short you couldn’t understand it,” Holmes said, in Corcoran’s recollection, “and White wrote so long that you couldn’t understand it. All we decided was the immediate point.”