December 2, 2022

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International Business Law As A Model Of Neutrality Avoiding Bias Pitfalls In Gun Regulations

After 19 children and two adults in Texas are gunned down by an 18-year-old who legally purchased an AR
AR
-style gun, why do reasonable measures for background checks fail to make their way through our legislative process? How can legal concepts from international business (trade and investment) law and domestic law systems help provide a solution?

International Business Law and the Gun Debate

The focus of the gun debate and disputes concerning international investment and trade law centers on the tension between an individual’s or a company’s rights and the host government’s responsibility to regulate. With this comparison and consideration of US politics, this article answers both questions.

Question 1: Why can’t a reasonable background check regulation make its way through the legislative process?

Slippery-Slope Arguments

How many times have you heard staunch gun-rights advocates argue that enhancing background checks today will result in government confiscation of their guns tomorrow? A slippery-slope argument is an assertion that a relatively small first step leads to a chain of related events, culminating in a significantly detrimental effect.

The slippery-slope argument is fatal to any chance of reaching a reasonable compromise. Take, for example, the 1963 Cuban Missile Crisis. If the US feared that withdrawing its nuclear warheads from Turkey would have created a slippery slope in which the Soviets continued placing weapons within miles of the US border, we might not be here right now. Other examples abound of ways in which ceding to the fear of a slippery slope would have precluded some of history’s most important compromises.

There are also plenty of examples in which slippery-slope predictions have never come to fruition. In spite of some people’s concern that free trade agreements and bilateral investment treaties would eventually lead to a form of economic colonialism, most host governments in developing countries remain the figurative and literal authorities on policy and regulation.

Without any proof, many people accept slippery-slope arguments as legitimate reasons to quash any movement toward compromise. In the case of gun rights, the burden of proof falls on the group that stands firmly against reasonable measures that aim to save lives. There is not a shred of evidence to support the belief that enhanced gun measures will lead to an imminent threat on an American’s Second Amendment rights.

Question 2: How can legal concepts from international business law and other court systems help provide a solution?

When reviewing a case of conflicting interests, international business arbitrators and WTO panels use a doctrine called proportionality.

The Danish Bottles Case: WTO

In the 1980s, the Danish government introduced a law requiring foreign beverage suppliers to use refillable bottles approved for environmental compliance by the host government. Suppliers and importers argued that this regulation unfairly raised production costs and triggered significant financial losses. In reviewing the case, the WTO ruled that the environmental benefits of the regulations outweighed any additional financial burden on suppliers and Danish importers of goods.

The WTO panel did not consider arguments that such regulations at that time might lead to more serious discriminatory environmental regulations against foreign suppliers moving forward. They merely examined the extent to which the regulation infringed the investor’s rights and the extent to which it protected the host country.

The same prism through which judges and arbitrators view international disputes can free us from the chains of slippery-slope arguments. In the gun debate, the proportionality review would consider the extent to which enhanced background checks would infringe on the Second Amendment against the extent to which it adds to the protection of innocent civilians. Without conjecturally anticipating a slippery slope in which minor background checks would lead to an outward denial of the right to bear arms, government officials can pass a reasonable measure that will make it harder to obtain weapons of war.

Sure, many will argue that such measures will not prevent people from obtaining guns by other means. The short answer: it’s worth the additional burden of filling out forms even if it saves only one life.