Skip to comments.Skinning Cats: Legal Means to Disarm the Second Amendment
Posted on 05/06/2007 8:21:20 PM PDT by Carry_Okie
There are few things that keep me up at night, but this is one of them. It may be cynicism, but more likely its the long sad experience of watching the courts over the years. So when your side finally wins one that should have you celebrating, and yet you walk away with a knot in your gut, its probably warranted.
Senior Judge Laurence H. Silbermans majority opinion in Parker v. District of Columbia was a thing of beauty, affirming armed self-defense as an individual right pre-existing the Constitution. It was almost hard to believe. Maybe that's whats bugging me. Such wins are so few and far between that when you do finally see one, youre left waiting for the other shoe to drop.
For decades this property rights activist has witnessed the slow destruction of small landowners means to make a living. News stories occasionally recount the outrage of property owners chased off their land by armed agents of the state. Game officials are now trained in riot control, wearing flak vests, and have little to no background in game management. Streams are fenced, preventing even wildlife from getting a drink. Its spooky.
The principal means instituting these evils are scads of rulings from the Federal bench with virtually no bases in constitutional law, at least, so it appears at first. Whats less commonly known is that the people who wield that power actually operate on a powerful legal foundation based in statutes pursuant to treaty law, and therein lies the rub as far as gun owners are concerned, or should be.
Treaties are powerful. Nations are formed and surrender by treaties (the very existence of the United States is acknowledged by the Treaty of Paris). So given that the leftists have made such use of them in land control, perhaps its not such a stretch for gun rights people to give treaties and international law more thought.
Well start with the scope of their powers. The Constitution, Article VI, Clause 2 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.
Treaty law supersedes both Congressional statues and all state laws, which given the abuse of the Commerce and General Welfare clauses should be enough to give one cause for pause. The obvious saving caveat is the phrase, under the Authority of the United States. It should be fairly obvious that this phrase renders any treaty that involves powers not enumerated in the Constitution void. In other words, the government of the United States does not have the authority to agree to terms with any other nation, the enforcement of which would require powers that exceed its Constitutionally enumerated powers. So in theory at least, a citizen whose rights have been violated by an unconstitutional treaty should be able to sue and have the treaty thrown out.
Its never happened. Thats a red flag. Perhaps weve never had such a treaty?
Im going to rely in detail upon but one example in order to illustrate what an outrage this process has become: The Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere. This treaty is so vague and open-ended that it must be read to be believed; its virtually unlimited scope is clearly beyond the powers granted to the Federal Government under the Constitution.
From the Preamble to the treaty:
"The Governments of the American Republics, wishing to protect and preserve in their natural habitat representatives of all species and genera of their native flora and fauna, including migratory birds, in sufficient numbers and over areas extensive enough to assure them from becoming extinct through any agency within man's control;"
Any agency within mans control, is certainly a commitment that exceeds the Constitutional authority of the Federal government, but it gets worse. After going on at considerable length about wilderness areas and national parks, they come back with this language in Article V Section 1:
"The Contracting Governments agree to adopt, or to propose such adoption to their respective appropriate law-making bodies, suitable laws and regulations for the protection and preservation of flora and fauna within their national boundaries but not included in the national parks, national reserves, nature monuments, or strict wilderness reserves referred to in Article II hereof."
In other words, the treaty applies to every inch of lands and waters within the United States. It commits every dime of the American economy to preserve ALL species. Ratification of a treaty with this scope is a betrayal of American citizens and their land. It commits them to achieve the unachievable: demanding a complete halt in the process of natural selection. That was in 1941.
So, how did this little beastie get ratified? This is the part that should scare gun owners to no end.
I was writing a book on environmental policy that examined this history. I contacted a friend of mine in DC (FReeper sauropod) and asked him to do a little research for me at the Library of Congress. He pulled the entire file on this treaty. In his summary report to a distracted Senate, Executive Report No. 5, April 3 1941, Secretary of State Cordell Hull quite obviously had deliberately misrepresented its virtually unlimited scope. He didnt say anything about land outside of parks and nature preserves.
There was no debate. There was no record of a committee vote. There was no record of a quorum. There was no recorded vote.
The problem is in the Constitution, Article II, Section 2, Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;
Senators present not two-thirds of the full Senate. Its the Constitutions original Trojan Horse.
Hamiltons Federalist #75 makes an attempt to paper-over the obvious contention over the means of ratification.
Though this provision has been assailed, on different grounds, with no small degree of vehemence, I scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan.
Best digested by whom? Although it was a LONG time ago when I read Farrand's Records, I do not recall any extended discussion on the adoption of treaties. I researched the twentty-four references with the string "senators present" for this article, and the only discussion I found was about treaty adoption in general, not a significant discussion on the requirement of a supermajority. This was obvious spin on Hamilton's part.
Another source of objection is derived from the small number of persons by whom a treaty may be made. Of those who espouse this objection, a part are of opinion that the House of Representatives ought to have been associated in the business, while another part seem to think that nothing more was necessary than to have substituted two thirds of all the members of the Senate, to two thirds of the members present.
It was a serious issue, and Hamilton knew it. Later in the paper, he makes his real intentions obvious:
The remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Representatives to a share in the formation of treaties. The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust.
So according to Hamilton, the peoples representatives cant be trusted to have a say in the commitments of the government at a level which supersedes all laws in the country. Great. Then why are they allowed to write the laws? Well, the means to circumscribe them is obvious.
Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy (emphasis in the original!!!), and despatch, are incompatible with the genius of a body so variable and so numerous.
Mr. Hamilton wants the peoples representatives to be ignorant of the terms of a treaty drafted in secret and passed before they know it! Whats this We the People, stuff anyway!
The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project.
So not only does drafting, negotiating, and ratifying the supreme law of the land have to be completed before the people get wind of it, it has to be convenient! Treaties can take many years to negotiate, sometimes even decades. So to argue for expediency at that point is a bit silly.
Now, for the worst part.
The only objection which remains to be canvassed, is that which would substitute the proportion of two thirds of all the members composing the senatorial body, to that of two thirds of the members present. It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority.
The whole point of requiring a supermajority of the Several States (at least thats how it was before the 17th Amendment) to ratify changes to the supreme law of the land almost equivalent to the Constitution itself is a decision of that magnitude should have the approval of the whole people minus a tiny fraction of extremists, who should at least have the time to make their case.
If two thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder.
And now he gets to the closer.
To require a fixed proportion of the whole body would not, in all probability, contribute to the advantages of a numerous agency, better then merely to require a proportion of the attending members. The former, by making a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance.
Punctual attendance? The lack of a quorum call for the ratification of the Convention on Nature Protection readily shows what a joke that can be. Senators can easily have motive not to be in attendance so as not to be held accountable for taking a stand. So, there you have the best case Hamilton could make and he belabored it ad nauseum. His point was effectively, If we sneak one of these through in secret, with just a select group, and in a big hurry, its your fault.
In the last days of the 106th Congress, the U.S. Senate ratified a package of 34 treaties almost without notice. They were ratified as a package. There was no debate. There was no recorded vote. Two of them have implications nearly as broad as the Convention on Nature Protection: the International Plant Protection Convention and the Convention on Desertification. Property rights groups, long used to this kind of perfidy were caught totally by surprise. When the deed was done and Jesse Helms was confronted, he looked at the activists and said that we had dropped our guard.
It was our fault.
Gun owners take note. Only last October, the UN submitted its DRAFT RESOLUTION ON INTERNATIONAL ARMS TRADE TREATY. Were almost there: What the DC Circuit giveth, a Democrat President and a few goons in the Senate could taketh away with complicit Republicans hiding their heads in the sand by simply failing to show up.
This is a situation that may soon call for vigilance at a level at to which gun rights groups are unused, particularly if a Democrat is elected President. We now have a Democrat Senate capable of anything, no matter how outrageous, and Republican moderates easy to cow, particularly if the payoff is to NOT be in attendance. We no longer have a Jesse Helms to gum up the works and buy time. Like sentries on the battle line, this job cannot be trusted to any one man or group at a time. Like any battle against an opposing army, this battle has its enemy generals who should be watched and observed for every move. Like any battle with unknown foe, it will require a means of collecting intelligence. If I could put a wire on Chuck Schumer I would do it.
This little article was meant to alarm you, because alarm is in order. The DC Circuit ruling, while a cause for celebration doesnt have us there yet. If we do win in the Supreme Court, dont think for a second that the gun-grabbing thugs of the left will let the situation get away from them without a fight. The threat we face is unambiguous. The motives are obvious. The enemy is committed. If the Second Amendment is hosed by treaty, we won't get the chance to let it happen again.
There are lots of ways for to skin a cat, this is but one of them.
Private property as a concept is under enarly conatant assualt, the Government carves out exceptions to the idea all the time, and the justify under there idea that anyhting but building a building on the taken property is not a “taking”.
Teh moderates are planning on running on Environmental Protections this coming election, no surprise really as to people in large cities it is easy to support stealing property under color of law out in “Flyover Country”.
Yeah, we might be up for that revolution thing sooner than even I thought. . .
Absolutely terrifying. When you add to this the trend in the world nowdays for corporate mergers and also governmental mergers(the EU, nafta, etc), ever larger and more powerfull entities...I’m scared spitless what the world will look like in 50 years.
Lest we forget, the Battle of Lexington-Concord was over Gun Control.
Well done. I never thought about the 2/3 present. The other thing to remember is Senators weren’t originally popularly elected. They were chosen by their state legislatures.
All this is from an evil obsession with control that seeks to systematically empower despots to outlaw and seize all firearms so that they can impose a totalitarian regime upon a defenseless America.
Some prefer not granting final authority to the Citizens, but rather to the judges who ultimately serve at our pleasure and on our payroll.
It’s at OUR pleasure. It’s OUR payroll.
And our judicial recall/impeachment process, when necessary.
Two-thirds of the senate present not two-thirds of the senate got my attention straight off.Pack of sneaky runts.
Correct. Effectively, treaties were to be ratified by the states.
I think we’re in a mess. I’m close to being fed up. I can’t believe all the nonsense that is happening. We’re supposed to have the world’s greatest deliberative body, the U.S. Senate! How does anyone debate with those who said we lost? Who lost to whom? I am fuming.
"I smell a rat." Immortal words uttered by Christian Statesman Patrick Henry when he refused his invitation to attend the US Constitutional Convention in 1787.
It's up to us. It always has been.
Congress appears to represent everything that the people are for. But when it comes to a vote, rarely do they vote as they tell the people how they would vote.
Tell us what we want to hear. Stab us in the back.
congress is a bunch of overpaid, underworked wimps.
But blue helmets make such wonderful aim points.
Here's my new flag.
Yeah, we might be up for that revolution thing sooner than even I thought.”
Nice thought, but too late.
You couldn’t get three people together to plan a revolution without one of them being a snitch.
And Goliad, the first battle for Texas independence from Mexico.
“Lest we forget, the Battle of Lexington-Concord was over Gun Control.”
I’d like to ask permission to use that some day for a tagline? Actually its so good, and I don’t see a copyright on it - I just might steal it anyway!
A covenant not to defend myself from force, by force, is always void. (Thomas Hobbes)
There is another get-around, they could more easily shut off the sale of ammo, than come for our guns.
Buy more ammo, LOTS more!
The desire to rule over other men, to live off the labor of others, to be a elite, a royalty, never ceases. The serpents were at the beginning and always with us. The serpents names change, but the form is always the same.
And more on subject, don't forget controlling the ammo.
American Model United Nations International
We also believe in the importance of controlling ammunition for small arms and would like to this area approached as a possible solution to the problem. As the Minister of Foreign Affairs, Lloyd Axworthy, has said, "Small arms are ubiquitous, but they are useless without ammunition. We should consider how we might track, control or mark ammunition as one way of controlling the lethal effect of these weaponsÉ sometimes it is too late to stop the supply of the weapons themselves; but if you stop the supply of bullets, you stop the killing." We also wish to stress the utmost importance of increased transparency in the trafficking of small arms.
International Small Arms and Light Weapons Transfers: U.S. Policy
The United Nations definition of small arms are those weapons manufactured to military specifications and designed for use by one person. Light weapons, according to the UN definition, are those utilized by several individuals working together as a crew. Ammunition and explosives required for either small arms or light weapons are covered by the definition.
a package of 34 treaties, all of which were ratified by a show of hands -- no recorded vote.
It's linked in the article. :-)
No kidding. It's just not common knowledge that the means were embedded in the Constitution from the beginning.
Great article; thank you.
The American Revolution was a civil war between the Royalists and small group from the Colonists, less than half at the start. As it seems from then, 1945, 1989, and other clashes between Freedom and Oppression -- Freedom won the battles, but Oppression never stopped the war. The Royalists may get knocked back a step, but they regroup and forge ahead anew, spewing disaffection and poverty all around them.
The Royalists always were and are Socialists, be they politicians, corporate leaders, Islamists, the MSM, ad nauseum. I fear for my Country.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;
Senators present not two-thirds of the full Senate. Its the Constitutions original Trojan Horse.
Methinks that it is time for the People to start pressuring Congress and the state legislatures to enact a Constitutional Amendment that would: 1) Make the approval of 2/3 of all Senators required to pass a treaty; and 2) make it a requirement that each and every treaty that comes before the full Senate be subjected to a recorded vote - separate from all other treaties.
This needs to be done on a 2-track system - first via Congress (i.e. the conventional way that Amendments are proposed) and second via the mechanism of calling for a Constitutional Convention. Congress generally won't move on Amendments unless they are highly popular ideas (like voting rights at age 18), or unless they are pressured to do so. This one isn't going to be highly popular, so we need to turn up the heat on our employees.
While we're at it, we need to clarify the "takings" clause of the 5th Amendment, such that ONLY property being taken for direct public use (not destruction) like schools, bridges, tunnels, roads, military bases, etc. can be taken, even with compensation. To allow Kelo-type takings to benefit private businesses or to enhance property tax revenues at the expense of the present owner's property rights is utterly hideous, and we need to make the SOBs in Congress and in many of the states aware of who they are working for.
We have a 2nd Amendment that makes everything nice-nice, yet we can't have a wide variety of weapons and the ones we can have are priced through the roof.
And God forbid your wife should beat you to the phone after a rough night on the town, because then you'd never be able to defend yourself again.
In Third world hell holes that we call repressed everybody and his favorite goat has a fully automatic AK and the thing only costs about $300!
Something is off.
Exactly what I've been advocating for years.
Although I agree with you in principle, I have a different take on that problem.
Amendments to the Constitution superseed any treaties.
In theory, but not in practice. Read the article.
If that’s the case, can the US Constitution (and the US) be destroyed by a single treaty?
The United States exists, in part, because other governments acknowledge that it exists. That was accomplihsed by treaty. Those treaties pre-exist the Constitution. Nations surrender and are dissovled by treaty.
So in answer to your question, as far as I know, legally yes. The reality is up to the people.
And require premium compensation, like say 125% of the highest reasonable appraisal, as compensation for people having to leave a place they might not have chosen to leave, and a disincentive for governments to use condemnation unless the land is direly needed.
Maybe someone can correct me if I’m wrong, but I seem to remember a case back in the 1950’s where the supreme court ruled that a signed and ratified treaty can NOT supercede the constitution and is null and void if it attempts to.
I’m no lawyer, but, I think that Article VI is clearly stating a hierarchy of laws and authority. The Constitution trumps Federal laws, which trump treaties, which trump State constitutions and laws. I think that proof of treaties’ inferiority to Federal law can be shown by the fact that no Indian tribe, AFAIK, has ever been able to recover damages when Congress abrogates a treaty. (They’ve had to make any recoveries the good, ol’ fashioned way: By bribing Congress!) If your theory were true, the Senate and the President could conspire to amend the Constitution by entering into convenient treaties with any banana republic wanting a little cash.
And you accomplished that--very well.
Alarmed and sickened at the same time.
No treaty has ever been trumped by the Constitution in the Supreme Court. If the example provided in the Convention on Nature Protection isn't enough, I don't know what is.
In seven years discussing this on FR, I've never seen anyone cite such a case, and believe me, there has been occasion.
Wake up America!
Great concept - but how about 150%? Give government a real disincentive to take private property.
However, those rights enumerated were in fact guarantees.
Otherwise a treaty could invalidate the right to free speech along with all the others.
Of course such matters would not prevent them from trying.
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