Medellin v. Texas - Your RKBA Decided By World Court and the President

[Bartholomew Roberts]

Since it seems like a lot of THR members have so much spare time on their hands they can spend it fighting threats that I consider to be of dubious relation to RKBA (LOST Treaty, studies on terrorism, etc.), I thought they might appreciate something that does bear relation to RKBA and is being decided by the Supreme Court even as I type this - Medellin v. Texas.

The short version goes like this: The United States is a signatory to the Vienna Conventions on Consular Relations. They signed the treaty without reservations in 1963; and the Senate ratified it in 1969. However, the treaty was not self-executing (meaning Congress must enact legislation to carry out the provisions of the treaty if they wish to abide by it). Recently the World Court made a decision regarding immigration. Despite the lack of any law from Congress supporting the World Court decision, the President has ordered states to implement the order of the World Court even though it is contrary to state law and Congress has not passed a law. Texas is challenging this order before the Supreme Court.

Dave Kopel has an interesting example of how the same process could be used to attack RKBA. From Dave Kopel's post at the Volokh Conspiracy:
http://volokh.com/posts/1192051881.shtml

The Bush position is that when the Senate has adopted a non-self-enforcing treaty, the treaty becomes self-enforcing if: 1. The World Court issues a ruling under the treaty in a case in which the United States accepts jurisdiction, and 2. The President then, exercising his foreign policy discretion, decides that the World Court order must be implemented. The position of Medellin's lawyers is even broader, that a World Court ruling is sufficient in itself.

Now let's see how this could work in a gun control hypothetical:

1. President Hillary Rodham Clinton strongly believes in gun control. (Consider that as Senator, she, unlike Senator Obama, actually voted against an appropriations rider to prevent federal funds from being used to fund gun confiscation during/after a natural disaster or similar emergency, even when the confiscation had no legal basis, or was formally prohibited by state law.)

. 2. She can't get 60 votes in the Senate to pass her domestic anti-gun proposals, much less the 2/3 support necessary for ratification of the new UN international gun control treaty. (Without U.S. Ambassadors to the U.N. like John Bolton, a new U.N. gun control treaty is a certainty within a few years. Indeed, it is doubtful that any U.S. delegation can block the forthcoming Arms Trade Treaty.)

3. The United States has ratified the International Covenant on Civil and Political Rights, along with a reservation stating that the Covenant is not self-executing.

4. United Nations Special Rapporteur Barbara Frey (a University of Minnesota law professor) has written a report for the United Nations Human Rights Council. The report has been adopted by the Human Rights Council's subcommission on the Promotion and Protection of Human Rights, which claims that the Report accurately describes existing mandatory international law.

5. Under the report's standards, U.S. gun control laws are in massive violation of the international law obligation (contained, inter alia, in the International Covenant) not to violate "the right to life." For example, most states do not require a periodically-renewed license for the possession of handguns, and hardly any do so for long guns. All states allow ordinary citizens, and the police, to use deadly force against certain felonies (e.g., rape, arson, armed robbery, serious assaults), even when the person using deadly force does not believe that deadly force is necessary to save a life. Even New York City's gun laws are deficient, for they allow licensed owners of rifles and shotguns to use their guns for any lawful purpose (e.g., target shooting, hunting, collecting, self-defense in the home) rather than only for a specified purpose. (For details, see pages 12-14 of my forthcoming article in the BYU Journal of Public Law, "The Human Right of Self-Defense.")

6. In collusion with the Clinton administration, a foreign government brings suit in before the World Court. The suit might be premised on the dangers to the foreign government's nationals when they visit or work in the United States. The Clinton administration accepts the World Court's jurisdiction.

7. The World Court issues a ruling consistent with the standards of the UN Human Rights Council.

8. President Clinton, exercising her foreign policy discretion, declares that all state governments must implement the ruling, by enacting gun licensing systems, and sharply restricting the use of guns for self-defense.

9. We are now at the same point as Medellin v. Texas, with one or more state governments claiming that the President cannot force them to obey a World Court ruling about a non-self-implementing treaty.

10. Based on the October 10 oral argument, it appears that there are currently some Justices on the court who think that the President can. By President Clinton's second term, there might be a majority of Justices, in a Court whose membership was appointed almost entirely by one Clinton or another, who might agree.

 

[mpmarty]

And I used to be an one of those antidisestablishmentarians, how times have changed.

 

[Zundfolge]

While I can see how such a thing could happen hypothetically and theoretically, I just can't imagine that it would go all that smooth for Ms. Clinton ... and being a political animal before an ideological one, I can't imagine she'd take the risk.

 

[Bartholomew Roberts]

And really, that is the key point to all of the "maybe one day if all of these things happened in a row we would be in trouble" threads. The initial bill isn't the problem so long as you keep the majority of representatives appreciative of your rights or scared of your vote.

It is when we fail to keep them nervous of our voting power that we have to worry - and at that point, they won't need "studies on terrorism" or similar subterfuge to achieve their goals - they will have votes to do what they want.

 

[Mannix]

We need to pull the plug on the UN, this compromise of our sovereignty should never be tolerated. Even giving one person the power to give the UN, and organization run by dictators(China, Russia) and bliss ninnies(France and the UK), that kind of jurisdiction is sure to bite us in the butt down the road.

 

[Zundfolge]

We need to pull the plug on the UN

I'm beginning to agree with that.

I used to think it was a good idea for us to be in the UN just so we could keep an eye on things and maybe veto some bad stuff, but unless we can get John Bolton to be our ambassador for life, we may actually be better off leaving the UN.

 

[Phil Lee]

The United States does not have the legal power to negotiate a treaty contrary to the Constitution of the United States. That means in simple terms that the United States may not Constitutionally negotiate a treaty that infringes the right of the people to keep and bear arms.

 

[ServiceSoon]

....

 

[Titan6]

The United States does not have the legal power to negotiate a treaty contrary to the Constitution of the United States. That means in simple terms that the United States may not Constitutionally negotiate a treaty that infringes the right of the people to keep and bear arms.

Without arguing the first point please show me the ruling where the Second Ammendment is an individual right. Last I checked the view of the Fed was a collective Right with the courts silent. Although that may change real soon.

 

[Regolith]

Without arguing the first point please show me the ruling where the Second Ammendment is an individual right.

Parker v. Washington DC. You didn't specify supreme court ruling.

There's a plethora of lower court rulings that rule either way.

 

[precisionshootist]

Last I checked the view of the Fed was a collective Right with the courts silent.

I wouldn't worry too much about the collective right viewpoint as even those that hate the second amendment know deep down its nonsense.

The 2nd amendment is an individual right. No intellectually honest person could arrive at any other conclusion. One does not have to be a constitutional scholar, Supreme Court justice, or professor of constitutional law to understand the nature of the 2nd amendment. If you can read that’s good enough. It means just what it says. This is the real reason we have had many unsuccessful attempts by power hungry politicians and utopia daydreamers to disarm the people of the United States. All have failed. Even if the Supreme Court were to issue an opinion completely to the contrary the only thing that would happen is those nine presidential appointees would quickly be notified by millions of Americans that they are wrong and that their job is to serve us, not the other way around.

 

[ForeignDude]

How Does This Play Into The Issue?

US Constitution, Article VI

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, anything in the Constitution or laws of any State to the contrary notwithstanding.

Am I interpreting this right: elements of the Constitution can be abrogated by treaties duly signed by the President and ratified by the Senate.

 

[Phil Lee]

This provision of the Constitution

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, anything in the Constitution or laws of any State to the contrary notwithstanding.

does not allow amending the Constitution. Provisions for amending are contained elsewhere and requires a ratification process.

I'm aware that various groups have raised this as an issue, but like my comment following, I think this is bogeyman scare tactics.

Without arguing the first point please show me the ruling where the Second Ammendment [sic] is an individual right. Last I checked the view of the Fed was a collective Right with the courts silent.

shows an error in understanding. There has never been any understanding of a "collective right" interpretation outside of gun-control liars who are grasping at straws to maintain their control agenda.

Only lawyers think the Constitution is what the Supreme Courts says it is. Actually, the Constitution has been and always will be the property of the people of the United States. It has been and always will be what the people say it is.

If the people don't accept a ruling by the USSC that the 2nd Amendment isn't an individual right then there will be a conflict between the people and their government like there was over alcohol prohibition, like there was over discrimination against blacks, and like there is today over drug prohibition.

Even if there is a ruling that the 2nd Amendment is an individual right, there will be essentially no change to the fight as people will continue to try to control guns in order to control violence. The major difference with a positive ruling that the right to keep and bear arms is an individual right will come from the requirement that gun control advocates will be forced to have their laws satisfy "strict scrutiny" -- that is, those wishing to control guns will have to argue that the laws will be effective at producing safety and will have to argue that no less restrictive means will accomplish the same end.

 

[revjen45]

The good news is that 45-50% of the people polled said they would not vote for Ms. Klintoon under any conditions. She has the highest negatives of any potential candidate ever.

 

[MiddleAgedKen]

And really, that is the key point to all of the "maybe one day if all of these things happened in a row we would be in trouble" threads. The initial bill isn't the problem so long as you keep the majority of representatives appreciative of your rights or scared of your vote.

It is when we fail to keep them nervous of our voting power that we have to worry - and at that point, they won't need "studies on terrorism" or similar subterfuge to achieve their goals - they will have votes to do what they want.

This is the key point. You know, the Zionists of the late 19th and early 20th centuries were not popular, even in many "mainstream" Jewish circles, because they too pointed to a bunch of things that would have to happen in a row.

And then they did.

Now, I don't suppose they always line up in a row like that. Maybe they won't in this case. I sure hope not; I'd rather raise my kids and tend a few apple trees in some quiet corner of America where the grass is green and the range is just down the road a piece. But if the other side wants what they want badly enough, and they think the math says they can make it stick, they'll try it on--the Constitution, as we have already seen, is not a magic talisman that will restrain them.

No, the only thing that will restrain them, in the long run, is a fundamental estimate of the situation that tells them the day they try will be a very bad day for their side. It's our job to make sure the advantage remains with men and women who believe in ordered liberty.

And to do that, the main thing we have to do is continue to exercise and advocate for our rights: in a law-abiding manner, to be sure, but strenuously and unceasingly.

Example: Get yourself a concealed handgun license/concealed weapons permit. In some circles, the idea of getting a CHL is pooh-poohed as "asking for permission to exercise an inalienable right." I understand and sympathize, but even granting that, there's still another very good reason for getting one where feasible: the message it sends. One who takes the trouble to get a CHL is unlikely to be a Fudd. Another good message along those lines is a CMP Garand.

And with that, now is the time on Schprockets when you say, "Oh, great, another FNG," and go about your business.

 

[Bartholomew Roberts]

This provision of the Constitution
Quote:
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, anything in the Constitution or laws of any State to the contrary notwithstanding.

does not allow amending the Constitution. Provisions for amending are contained elsewhere and requires a ratification process.

And unlike the comment on the Second Amendment, this is actually backed by a Supreme Court decision as well stating that a treaty cannot amend or take precedence over the Constitution. (See Reid v. Covert, 354 U.S. 1, 17 (1956)).

 

[Grizzly Adams]

The point is that we must keep our guard up, exercise our voting rights, and ensure we elect people that are pro-2a! And don't believe that Billary won't try anything if she's elected. The Clintons are capable of anything! Ask Vince Foster. Oh, I forgot, dead people can't talk.

 

[jpk1md]

griz, I think you're wrong on that one......who was it that signed the 1994 AWB into effect? Papa Klinton....

Mama Klinton is a whole lot more unpredictable than Slick Willy was.....she flip flops on issues in the same BREATH!

The 2A would be in grave danger under another Klinton.....not to mention the Socialist Judges she would appoint at ALL levels of the Judiciary.

 

[Elza]

I still question our position regarding UN treaties. Any time it comes up the preceding arguments are always brought up. But what is to keep the USSC from reversing itself? Historically they are unlikely to do so but it doesn’t mean that they can’t. Considering some of the laws that have come about lately (with the support of the USSC) Constitutionality isn’t that much of an argument.

What if:

A UN treaty outlawing private ownership of firearms is accepted by the Senate, signed by the President, and given the green light by the USSC? If Hillary gets the court packed the way she wants it this would certainly not be impossible. Would it be Constitutional? No. Would it be the right? Not just no but hell no. But if it happens what are our options at this point?

If the above scenario is patently impossible, why?

 

[Phil Lee]

I still question our position regarding UN treaties. Any time it comes up the preceding arguments are always brought up. But what is to keep the USSC from reversing itself? Historically they are unlikely to do so but it doesn’t mean that they can’t.

You don't accept that the Constitution is protected against amending by treaty. So, what do you want people to tell you? That YOU MUST WORRY?

OK -- Go worry.

On the other hand, since the USSC can interpreted black is white, you might as well give it up as already lost . . . nothing can be done. The USSC will say the people have no right to guns and that is that. Don't need a treaty at all.

Or, maybe not. Maybe there are protections that the "lawyer" types don't appreciate.

Either way, it is silly to worry unless you can think of something that can be done.

In the end, the Constitution belongs to "We the People" and if "We" don't defend it, we deserve what we get.

 

[mike101]

"The 2nd amendment is an individual right. No intellectually honest person could arrive at any other conclusion."

As anyone who's ever been to the Brady Campaigns's website can tell you, the anti-rights crowd is anything but intellectually honest. Quite the contrary. You never saw a bigger pack of liars in your life.

Look at all the vehement antis who have permits to carry guns, and or surround themselves with armed security people. Boxer, Feinstien, Schumer, The Rosie, Jesse Jackson..............and, I'm sure there are many we don't know about.

 

[LAK]

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

The "authority of the United States" - that is to say, the authority of the Federal government - does not extend to handing over of our absolute legal sovereignty and the subjection of Americans to foreign jurisdiction of any kind for acts (etc) on American soil. Period.

---------------------------

http://searchronpaul.com
http://ussliberty.org
http://ssunitedstates.org

 

[Elza]

Typical response, Phil

<Bad stuff removed by Art>

In theory nothing that is unconstitutional can be enforced. In the real world it depends upon the whims of the USSC. Once something gets the blessings of the ‘nine wise men’ in Washington it matters not what is written in the Constitution. If my view of this is wrong I would like to know why.

 

[Master Blaster]

Amendment XI (1798)

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

When the Supreme Court held in the 1793 case Chisholm v. Georgia that a state could be sued in federal court under Article III of the Constitution, this amendment was rapidly adopted. It provided that states could only be sued in state courts.

States have their own constitutions that prohibit the infringement of the RKBA of citizens of those states. Doesn't this part of the bill of rights require that the issue of this treaty where it conflicts with a state's constitution be tried in a state court???

So wouldn't that be a safeguard?

 

[Elza]

Master Blaster: So wouldn't that be a safeguard?

It (along with others) should protect us. But it all rests with USSC. Once something gets the court’s blessing we’re pretty much out of options. Think about some of the things that are being done in the name of Homeland Security. Mention HS and suddenly anything and everything is acceptable.