Antonin Scalia has a lurking fear: the Latvian Gun Grab.
In 1995, the Supreme Court decided that Congress could not use the Commerce Power to outlaw carrying a gun into a school zone. In his separate opinion Monday in Bond v. United States, Justice Scalia fretted that the school-zone case “could be reversed by negotiating a treaty with Latvia providing that neither sovereign would permit the carrying of guns near schools.”
I think he’s worrying about nothing, and so are the other conservatives wringing their hands over the Court’s failure to rein in the federal Treaty Power. That’s because the Constitution’s very structure is the Framers’ favored means of preventing federal overreach—a better method, in fact, than judicial review.
Scalia was so worried about the Grab that his opinion, which is formally a concurrence, reads like one of his most ferocious dissents. It’s a concurrence because all nine justices agreed that Carol Anne Bond, the pathetic protagonist of the case, should go free. Six of them—a left-right coalition of Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—agreed that the statute involved, properly read, didn’t reach the crime Bond committed. The other three—Scalia and Justices Clarence Thomas and Samuel Alito—wanted to read the statute broadly and then hold that the Treaty Power was too narrow to permit it.
Since the Treaty Power remains intact, should we worry about the Grab?
The Framers made approving a treaty difficult. Both the president and two-thirds of the Senate must agree on it. They relied on these two parts of the federal government to keep each other honest and thus preserve the Constitution. So 67 senators or so (depending on the number voting), after a public debate, would have to agree that Latvian-U.S. relations should govern guns in American high schools.
Not, as Eliza Doolittle would say, bloody likely.
You’re not satisfied? Then wait, there’s more. Both the House and the Senate would then have to pass a separate statute implementing the Grab Pact. Eliza says that’s not very likely either.
Bond, as I have explained extensively, concerned the Chemical Weapons Convention Implementation Act of 1998, in which Congress made it a crime to use a “chemical weapon,” meaning, in essence any toxic chemical used as a weapon, within the United States. The statute implemented the international Chemical Weapons Convention of 1997, which required all nations signing it to outlaw the weapons domestically.
Flash forward to 2007. Post-9/11 anti-terrorist fervor is strong. Carol Anne Bond smears dangerous chemicals around the home of the woman carrying Bond’s husband’s child. She unwisely targets a mailbox, triggering federal jurisdiction. An overenthusiastic federal prosecutor charges Bond under the act; conviction carries a sentence of “any term of years” (and execution, if the victim had died instead of suffering a mild burn on the thumb).
It was a sad case and a silly prosecution. The six-justice majority made it go away by construing the statute not to apply to “purely local crimes.” That was a perfectly ordinary piece of statutory construction, but it disappointed the right. Scalia’s Latvian scenario was as silly as the prosecution, but behind it lurks a conservative fear that—to quote an amicus brief written for the Cato Institute by Georgetown Law Professor Nicholas Quinn Rosenkranz—since the Court didn’t make itself the arbiter of “proper” treaties, “Congress’s legislative powers are not merely somewhat expandable by treaty; they are expandable virtually without limit.”