The second paragraph of Article VI of the U.S. Constitution states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
This language has sometimes been misinterpreted by people who claim that an international treaty therefore can effectively override provisions in the Constitution, including the Bill of Rights. That is not the way that the U.S. Supreme Court has interpreted the language of Article VI.
On June 10, 1957, the Court issued a landmark decision in the case of Reid v. Covert, 354 US 1. The case involved a woman named Covert, who was charged with killing her husband while they were living in England, and he was serving in the U.S. military. There was an agreement between the United States and the UK that any crime committed in Great Britain by members of the U.S. military, or their dependents, would be tried by U.S. Military Tribunal. Mrs. Covert had been found guilty of murder by such a tribunal.
The U. S. Supreme Court overturned the conviction, and found that: “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 of the Constitution.” The Court also stated that: “…an international accord that is inconsistent with the U.S. Constitution is void under domestic U.S. law, the same as any other federal law in conflict with the Constitution.”
The High Court specifically distinguished the Reid case from the so-called “Insular Cases,” that had been decided by the Supreme Court in the early 20th Century. These cases included Goetze v. United States, 182 U.S. 221 (1901), Dooley v. United States, 182 U.S. 222 (1901), and Armstrong v. United States, 182 U.S. 243 (1901), among others. The central question in all of these cases was whether full U.S. Constitutional rights were extended to citizens of U.S. Territories acquired by the Treaty that ended the Spanish – American war.
The Supreme Court ultimately decided that the rights were not extended automatically, but were based on considerations, like the official status of the territory as either incorporated or unincorporated. In other words, the issues were far different from those in the Reid case, and Justice Black pointed out in that case that: “neither the cases nor their reasoning should be given any further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperant when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our government”.
It is clear that the Justices in the Reid case were not in favor of further limitations of Constitutional rights, even when the citizens were outside of the U.S., and certainly not because of an international treaty. It is also clear that they were saying that no treaty, even if signed by the President, and ratified by the Senate, can take precedence over the Constitution. This decision has stood for 45 years, and there appears to be no compelling reason for it to be changed.
Article VI of the Constitution only provides that treaties can be considered equal to U.S. statutes and laws when considered by the Court. However, they cannot be used to alter the U.S. Constitution, or to deny Constitutional rights to American citizens, or to the American states. Therefore, even if the U.N. Small Arms Treaty is finalized, signed by the President, and ratified by the U. S. Senate, it would not take away the rights of Americans to keep and bear arms under the provisions of the 2nd Amendment to the Constitution.