[Amnesty International] 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.).
— Eugene Volokh in Amnesty International brief against right to bear arms