The 2nd Amendment, Heller and International Pressure

[geekWithA.45]

The myth that treaties can override the constitution comes up every 6-8 months here.

The short answer is that they can not over ride the constitution.


See here: http://www.thehighroad.org/showpost.php?p=1954046&postcount=13

and here: http://www.thehighroad.org/showpost.php?p=4171695&postcount=32

and here: http://www.thehighroad.org/showpost.php?p=3498646&postcount=9

and here: http://www.thehighroad.org/showpost.php?p=2399968&postcount=2

and here: http://www.thehighroad.org/showpost.php?p=1954014&postcount=10

 

[Cosmoline]

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

No, treaties ratified and signed have the same effect as any other federal law. The Constitution still controls them.

 

[theHeretic]

“The treaty is ... a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States.” Doe v. Braden, 57 U.S. (16 How.) 635, 656 (1853). “It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.”

 

[gc70]

Article VI, Clause 2 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Supremacy Clause simply states the truism that the power of the federal government trumps the state governments. Joseph Story summarized the concept in his Commentaries on the Constitution: "The propriety of this clause would seem to result from the very nature of the constitution. If it was to establish a national government, that government ought, to the extent of its powers and rights, to be supreme."

Treaties are included in the Supremacy Clause because (per Story) "they should have the obligation and force of a law, that they may be executed by the judicial power, and be obeyed like other laws."

The concept that treaties can violate the Constitution is inaccurate. Both Joseph Story and St. George Tucker (in Blackstone's Commentaries) noted that the Supremacy Clause is only effective for constitutional laws and treaties. Story wrote "It will be observed, that the supremacy of the laws is attached to those only, which are made in pursuance of the constitution" and Tucker wrote "a law not limited to those objects, or not made pursuant to the constitution, would not be the supreme law of the land, but an act of usurpation, and consequently void."

The Supreme Court has stated that treaties that violate the Constitution may be held void, although no specific treaty has apparently been judged unconstitutional.

“The treaty is ... a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States.” Doe v. Braden, 57 U.S. (16 How.) 635, 656 (1853).

“It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.” The Cherokee Tobacco, 78 U.S. (11 Wall.), 616, 620 (1871).

Thus, the Constitution establishes a hierarchy of authority:
- the Constitution of the United States
--- laws and treaties of the United States
----- the constitutions and laws of the various states

 

[ConstitutionCowboy]

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.

Actually, it'll be the downfall of those in our government.

Ergosphere has delivered up a good response from the Court that explains it quite well.

And this from Art Eatman:

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

Amen, Art!

Anyhoo, the controlling lingo in Article VI is, "... under the Authority of the United States, ...". If it isn't under the authority granted to government or is a specifically prohibited power, it ain't under the authority of the United States to enter into such a treaty. The Union could enter a treaty setting monetary exchange rates with other countries as allowed by Article I, Section 8, Clause 3, but not an arms-limitation-upon-we-the-people treaty for it would violate the Second Amendment. A treaty to establish a world-wide religion would violate the First Amendment. (On the same token, the Union should not be loaning money or anything else, or giving out "Foreign Aid", to foreign nations. No power has been granted for such activity....But I drift off course.)

Woody

 

[H088]

I would love to have them try, there would be such a huge backlash that pretty much everyone involved would be taken down along with with allot of gun laws they support.