The 2nd Amendment, Heller and International Pressure

[usmarine0352_2005]

It has been discussed if the US would ever simply bypass the 2nd Amendment by signing treaties or other laws to meet International agreements or accords.


Some have said that to this would work and effectively negate the 2nd Amendment.



Is this possible?


Now that Heller has been decided, would it matter at all?


.

 

[bigjohnson]

International treaties take precedence over both US law and the US Constitution. If Obama gets in and signs some sort of UN gun-ban treaty, and it is approved by the Senate, you can kiss your 2nd amendment rights goodbye.
However, I personally feel that no member of the US Senate would vote for such a treaty, unless he's out of his/her mind (or named Kennedy, Shumer, Durbin, Lautenberg, or Feinstein). They remember only too well what happened in 1994 after the Congress passed the Assault Weapons ban.

 

[Art Eatman]

From 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, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."

My limited understanding of the Treaty process is that it's set up by the State Department and then signed by the President. It cannot take effect until it is ratified by the Senate. Ratification takes a 2/3 vote.

From Wikipedia:

"In the United States, the term "treaty" is used in a more restricted legal sense than in international law. U.S. law distinguishes what it calls treaties from treaty executive agreements, congressional-executive agreements, and sole executive agreements. All four classes are equally treaties under international law; they are distinct only from the perspective of internal American law. The distinctions are primarily concerning their method of ratification. Where treaties require advice and consent by 2/3rds of the Senate, sole executive agreements may be executed by the President acting alone. Some treaties grant the President the authority to fill in the gaps with executive agreements, rather than additional treaties or protocols. And finally, Congressional executive agreements require majority approval by both the House and the Senate, either before or after the treaty is signed by the President.

Currently, international agreements are executed by executive agreement rather than treaties at a rate of 10:1. Despite the relative ease of executive agreements, the President still often chooses to pursue the formal treaty process over an executive agreement in order to gain Congressional support on matters that require the Congress to pass implementing legislation or appropriate funds, and those agreements that impose long-term, complex legal obligations on the U.S."

Given the history of the past fifteen years as to such things as CHLs, greater voter understanding of the entire "gun argument" and now "Heller", I'd imagine that any effort to bring us under UN style as regards our firearms would be politically fatal.

Art

 

[romma]

International treaties take precedence over both US law and the US Constitution

I hope you are wrong here bigjohnson.

I believe Our constitution takes precedent over foreign treaties... For elected officials to vote otherwise, would be declaring war on its people and their rights.

 

[Novus Collectus]

The only way to supersede the Constitution is to Amend it through the usual Amendment process first involving Congress, or for the states to call for a Constitutional Convention and eliminate it or Amend it that way as well. A treaty will not override the Constitution. The power to enter treaties is in the Constitution, but the provision does not allow it to be superior to the rest of the Constitution.

If the Supreme Court did not rule the 2nd Amendment was an individual right, an international treaty Congress ratified might have been able to restrict or deny firearms ownership, but since it has been determined to be a Constitutional right, a treaty as such would not be enforceable or Constitutional as I understand it.

 

[Art Eatman]

We've posted at the same time, roughly. So, go back and read my cite from Article VI of the Constitution.

Art

 

[Novus Collectus]

Art, read the treaty clause closer. A treaty does not supersede the Constitution. If you want I can break my understanding of it down for you or use my amateur parsing to explain what I see.

 

[Guy B. Meredith]

So international law can limit our free speech, make arbitrary search and seizure legal, force us to house foreign troops, etc?

I don't think so.

 

[another okie]

Treaties must be made under the power of the constitution, and hence cannot supercede it. However, a wrong-headed Supreme Court could find a way around that.

 

[Sebastian the Ibis]

Treaties are just like legislation except you need 7% more in the Senate (60% for a filibuster- since someone would correct me otherwise) and a foreign government substitutes for the house. So a treaty would get around legislation but not the constitution.

 

[Elza]

another okie: Treaties must be made under the power of the constitution, and hence cannot supercede it. However, a wrong-headed Supreme Court could find a way around that.

I suggested this once on this very forum. I verbally got the snot beaten out of me! I still, however, believe that this will be the downfall of our rights and not just the 2nd Amendment.

 

[Ergosphere]

The Supreme Court ruled on this in Reid v. Covert, 354 U.S. 1, 17 (1956):

Article VI, the Supremacy Clause of the Constitution, declares:

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; . . .

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates, as well as the history that surrounds the adoption of the treaty provision in Article VI, make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary [p17] War, would remain in effect. [n31] It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights -- let alone alien to our entire constitutional history and tradition -- to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. [n32] In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government, and they cannot be nullified by the Executive or by the Executive and the Senate combined.

 

[Gray Peterson]

As the Reid court stated, treaties do not override the constitution. Certainly we should be on the lookout for any treaty, but it overriding the constitution?......

 

[RP88]

why would we want to do that, anyway? So we can 'join the rest of the world'? We still drive on the wrong side of the road, have non-conforming weights and measures, and are generally disliked for many other things than just guns. **** the rest of the world in terms of 'international compliance'. I pity any country that would act like a high school whore as if NATO is some kind of prom queen popularity contest. That would be a politically stupid thing to even consider out loud where anyone could hear you if you were a US politician.

 

[Marcus84]

They remember only too well what happened in 1994 after the Congress passed the Assault Weapons ban.

I was too young to know what was going on at the time. Any links to what happened?

 

[Libertarian52]

Quote:
They remember only too well what happened in 1994 after the Congress passed the Assault Weapons ban.

I was too young to know what was going on at the time. Any links to what happened?

In a nutshell, the Democrats had control of Congress and the Presidency under Clinton. He pressured many up till then pro-gun Democrats to pass the ill-conceived Assault Weapons ban as well as the Brady Waiting period.

Then during the '94 midterm elections, we gun owners showed our collective might and ousted many of those Democrats, including the sitting Speaker of the House, and handed control to the Republicans for the first time in decades.

But the fact that you don't know something that happened so recently has me worried that the politicos from both parties have forgotten the lesson of '94 and will try to pull the same BS under Obama if he should get elected.

 

[usmarine0352_2005]

In a nutshell, the Democrats had control of Congress and the Presidency under Clinton. He pressured many up till then pro-gun Democrats to pass the ill-conceived Assault Weapons ban as well as the Brady Waiting period.

Then during the '94 midterm elections, we gun owners showed our collective might and ousted many of those Democrats, including the sitting Speaker of the House, and handed control to the Republicans for the first time in decades.

But the fact that you don't know something that happened so recently has me worried that the politicos from both parties have forgotten the lesson of '94 and will try to pull the same BS under Obama if he should get elected.

Very true.


Many of the most important 2nd Amendment cases (incorporation, machine guns, etc) will be going before SCOTUS in the next couple of years.


With barely a 5-4 ruling to squeak by, imagine what will happen if the Demorcats appoint 2 or more new Supreme Court Justices, we could lose much more then we gained.

Heller would merely be a won battle in the lost war.

:banghead:

 

[ozwyn]

the numbers game from 94 came down to this: 96% of the politicians who voted for the brady bill lost their jobs.

its one heck of a number when it comes to explaining to politicians why gun control is a great way to be voted out of office.

 

[Art Eatman]

Certainly better that the Reid decision by SCOTUS rules, than a ruling by our present Reid in the Senate.

 

[Sam Adams]

International treaties take precedence over both US law and the US Constitution.

Excuse my Fwench, but that is a bunch of CRAP!!

Treaties can only be signed or ratified pursuant to the authority of the President and Senate AS SPECIFIED IN THE CONSTITUTION.

The Constitution is THE SUPREME LAW OF THE LAND - period, end of report.

Oh, and BTW, if any administration tried to stuff an anti-gun international/UN treaty down the throats of the American public, I sincerely hope that there would be a huge increase in instantaneous fatal lead poisoning among those officials implementing it, as well as a dramatic increase in demand for rope and tar & feathers.

 

[Sam Adams]

US Marine

With barely a 5-4 ruling to squeak by, imagine what will happen if the Demorcats appoint 2 or more new Supreme Court Justices, we could lose much more then we gained.

While I certainly would like to see the next several vacancies on the Supreme Court filled by someone other than Obama or any other Dem, the fact is that the 2 most likely vacancies are Stevens (age 88) and Ginsburg (75 and sick). These 2 voted against us, and even if Obama were to name their replacements, it is unlikely that such would sway the Court in the short term.

Note that the vast, vast majority of federal case law is settled at the District and Circuit Court levels, and any President names hundreds of these judges over the course of a term in office. I DON'T want Obama naming any of them.

 

[lanternlad1]

"International treaties take precedence over both US law and the US Constitution. If Obama gets in and signs some sort of UN gun-ban treaty, and it is approved by the Senate, you can kiss your 2nd amendment rights goodbye."

I don't think so.

http://www.jpands.org/hacienda/article4.html

Also, treaties can be declared unconstitutional by the Supreme Court and overturned. Then there's the case where the Mexican gov tried to stop the execution of Mexican nationals on death row in Texas based on the World Court decisions.

http://smithfiles.com/2008/03/31/7-mexican-born-texas-death-row-inmates-lose-appeals/

The Supremacy of the United States is not going to go away without a fight.

 

[Art Eatman]

From the Reid decision, Post 12, above:

"The prohibitions of the Constitution were designed to apply to all branches of the National Government, and they cannot be nullified by the Executive or by the Executive and the Senate combined."

 

[Rugerlvr]

96% of the politicians who voted for the brady bill lost their jobs.

Yes, but was it the next election, or later? If later, then I suggest it was probably more attrition than anything.

 

[Novus Collectus]

Yes, but was it the next election, or later? If later, then I suggest it was probably more attrition than anything.

Later.

The election following I think they lost maybe 15% to 25%.

Clinton is on record as the reason the Dems lost control of Congress in 94 was because of the passage of the AW ban and the reaction against the Congresspersons who voted for it.