Side-stepping the Constitution

[Mauszer]

I'm surprised I haven't seen this posted anywhere yet...

http://www.examiner.com/law-enforcem...hed-by-clinton

Lets forget for a second that an international treaty requires a 2/3 majority vote in the Senate for ratification. This is blatant abuse of the executive branch's authority to enter into treaties with foreign nations in an effort to bypass our legislative branch and undermine the Constitution. Isn't this a direct conflict with the President's oath to "preserve, protect and defend the Constitution?"

Edit: Removed names. They are included in the article mentioned.

[Patriot86]

From my cold dead hand

is the first thing that comes to mind when I read that. The UN wants our guns, let them come and get em.


Thank god the anti gun types won't have a 2/3 majority ANY time soon. In 5 or 10 years though who knows?

Does this kind of treaty have a shelf life (can it be voted on 10 years after passage by the UN? Or does the Senate have X number of months or years to ratify it.)


PS: I can think of atleast 2 other threads where this issue has come up, Just havn't seen activity in weeks.

[hogdogs]

Brought up numerous times here actually...

Brent

[Hardcase]

Lets forget for a second that an international treaty requires a 2/3 majority vote in the Senate for ratification.

It's not really possible to set that aside. The Executive can support any treaty that it wishes, but because of our rather unique system of government, the Legislature must overwhelmingly support it as well.

That treaty is well worth keeping our eyes on, but as far as the Senate goes, it's DOA.

I don't see what the current administration is doing regarding that treaty that is an abuse of its power. The Executive is responsible for negotiating treaties, good or bad, and that's what Secretary Clinton and the State Department is doing. Oh, it's a bad treaty, that's for sure, but not an abuse of power.

[Mauszer]

This is from Senate.gov

Senate Options
The Senate, itself, does not ratify treaties--actual ratification only takes place when the instruments of ratification are formally exchanged between the parties. When a treaty is submitted to the Senate for approval, it has several options for action. Depending on whether or not a two-thirds majority votes in favor, the Senate may approve or reject the treaty as it has been submitted. It may make its approval conditional by including in the resolution amendments to the text of the treaty, reservations, understandings, interpretations, declarations, or other statements. The president and the other countries involved must then decide whether to accept the conditions and changes in the legislation, renegotiate the provisions, or abandon the treaty. Finally, the Senate may choose to take no definitive action, leaving the treaty pending in the Senate until withdrawn at the request of the president or, occasionally, at the initiative of the Senate.

So it seems the treaty cannot be in full force and effect until it is approved by the senate. The site goes further to state:

Executive Agreements


In addition to treaties, which may not enter into force and become binding on the United States without the advice and consent of the Senate, there are other types of international agreements concluded by the executive branch and not submitted to the Senate. These are classified in the United States as executive agreements, not as treaties, a distinction that has only domestic significance. International law regards each mode of international agreement as binding, whatever its designation under domestic law.

[brickeyee]

And a tre4aty cannot alter the terms of the Constitution.

Any portion that did would not be valid (no matter what the Senate ratified).

[Mauszer]

And a tre4aty cannot alter the terms of the Constitution.

Any portion that did would not be valid (no matter what the Senate ratified).

Agreed. It just seems that our administration (and politicians in general really) like(s) to find creative ways around the system of checks and balances which always puts our Constution in the position of defense.

I did however learn quite a bit about treaties just now (which is never a bad thing), and the original article that I referenced needs some editing. In its current form it is fairly inaccurate but still scary stuff.

[Aguila Blanca]

Originally Posted by Patriot86

Does this kind of treaty have a shelf life (can it be voted on 10 years after passage by the UN? Or does the Senate have X number of months or years to ratify it.)

No time limit. There was an international Hague convention regarding international adoptions that was drafted in (IIRC) around 1985 or 1988. The U.S. finally ratified it in March of 2006 (again, IIRC - I might be off by a year, but the fact the U.S. finally signed it totally screwed up our adoption of a child. We were literally about ten days short of completion, and that ratification cost us two more years and several thousand dollars.)

[Patriot86]

So basically Obama can sign this thing and his party can just bide its time waiting for the RIGHT time to force it down our throats, just like healthcare...swell. I think a REPUBLICAN controlled congress needs to pass an amendment to the constitution immediately that CLEARLY states no treaty's shall be signed that interfere with Americans constitutional rights or something to that effect. I know my language is broad but it is needed.

[carguychris]

It's not really possible to set [the 2/3 Senate vote requirement] aside. The Executive can support any treaty that it wishes, but because of our rather unique system of government, the Legislature must overwhelmingly support it as well... That treaty is well worth keeping our eyes on, but as far as the Senate goes, it's DOA.

+1. For the classic example of what happens when the President bets the farm on an unpopular treaty that lacks Senate support, simply Google "League of Nations".

...the original article that I referenced needs some editing. In its current form it is fairly inaccurate but still scary stuff.

IMHO the original article is edited exactly the way the writer intended- it's intentionally misleading and full of weasel words. It's written to exploit the fact that many people don't understand how the American treaty ratification process works. It's meant to scare you for political reasons, not educate you.

I think [the] congress needs to pass an amendment to the constitution immediately that CLEARLY states no treaty's shall be signed that interfere with Americans constitutional rights...

Such an amendment would be redundant. The Constitution is the supreme law of the land and bad treaties don't change that. An unconstitutional treaty is exactly like an unconstitutional domestic law; it can be voided by the courts.

People act like treaties are untouchable and written in stone; they're not. Keep in mind that countries routinely abrogate treaties and ignore international agreements when it's convenient for them to do so. Just because the US Senate ratifies a piece of paper negotiated in an international forum doesn't mean that it can't (and won't) be tossed by the wayside later.

[kozak6]

Yawn.

In other news, the sky is falling. Anybody wanna buy some helmets?

The whole article is recycled quotes of Joan Sharon, who appears to be an ignorant and sensationalist peddler of misinformation.

It's not even interesting. There's already been what, a dozen locked threads about this and two or three reasonable ones?

Critics believe Obama will appear before the public and tell them that he does not intend to pursue any legislation in the United States

Why be realistic? That's so boring.

I mean, erm, damn blue helmets! Cold dead hands and NWO, and such.

[Uncle Buck]

I would suspect that if this treaty ever did pass the Senate, it would quickly be challenged in the courts.

[BlueTrain]

You have it right when you say nations ignore treaties when it is convenient for them to do so. There really isn't such a thing as "neutral" anymore, although the concept was generally honored in WWI, when I suppose men were more honorable. But not in WWII. We weren't so good at keeping treaties with the Indians either, although it really wasn't the government that ignored them, it was the people.

While the constitution may be the supreme law of the land, plenty of people here wish otherwise, generally crying states rights or something like that. I think we should either abolish state governments or the federal government. Just an idea.

[Bartholomew Roberts]

Originally Posted by Patriot86

So basically Obama can sign this thing and his party can just bide its time waiting for the RIGHT time to force it down our throats

He doesn't need to because Clinton already signed the CIFTA Treaty many moons ago. However, even with the Democrats having a filibuster proof majority in the Senate and ratification of CIFTA being a top priority of the Obama Administration (according to their own press release), the Senate never even considered trying to ratify the treaty. I presume Sen. Reid's position as Majority Leader and his need to be re-elected in 2010 helped with that.

http://thefiringline.com/forums/show...ll+arms+treaty

[scpapa]

If it is ratified, can a later Senate vote de-ratify it?
scpapa

[thallub]

And a tre4aty cannot alter the terms of the Constitution.

Any portion that did would not be valid (no matter what the Senate ratified).

What Brickeye said. i really do wish that pro-Second Amendment advocates would do some research.

The guys who write most of this stuff are alarmists. First they tell you that the UN is going to take your guns. Then they tell you that for a small donation they will fight the dastardly UN. The NRA and the other guns rights organizations have bought into this fund raising tactic.

No international treaty, ratified or not, over-rules the US Constitution. In 1957 the US Supreme Court ruled in a case known as Reid vs Covert. Italics are mine.

http://caselaw.lp.findlaw.com/script...vol=354&page=1

Quote:
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 [354 U.S. 1, 17] War, would remain in effect. 31 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. 32 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.

[Bartholomew Roberts]

The NRA and the other guns rights organizations have bought into this fund raising tactic.

The problem, as I've noted before, is that relying on the Supreme Court to invalidate a Small Arms Treaty signed by the President and ratified by the Senate is basically a last ditch effort. There are a lot of ways that strategy could go wrong.

Right now any threat of the UN Small Arms Treaty is remote at best; but that is in no small part because some organizations, like the NRA, have gotten certified as non-governmental organizations (NGOs) and gone to the UN. Just this past summer, Wayne LaPierre addressed the UN Small Arms Treaty group. And the NRA's role in getting a filibuster-proof majority of Senators to say they wouldn't ratify such a treaty was helpful as well.

So, even though it remains a remote threat (in part thanks to such work) there is fighting that needs to be done there and there are organizations that are doing it. However, I'd be skeptical of any organization that claims to be fighting the UN treaty but hasn't even bothered to go to New York and participate in the process.

[thallub]

IMHO the original article is edited exactly the way the writer intended- it's intentionally misleading and full of weasel words. It's written to exploit the fact that many people don't understand how the American treaty ratification process works. It's meant to scare you for political reasons, not educate you.

Very good post. Sorry i read it late.


"Fighting the UN small arms treaty" is part of the fund raising process. The people who run those organizations are aware this is a red herring issue. They are capitalizing on this issue because it stirs up gunowners who are not well informed.

The proposed UN small arms treaty would not restrict gun ownership in member countries. It is about the international peddling of small arms weapons.

[NJgunowner]

Ug, where'd I put that picture of beating a dead horse...

[Al Norris]

[Bartholomew Roberts]

Originally Posted by thallub

The proposed UN small arms treaty would not restrict gun ownership in member countries. It is about the international peddling of small arms weapons.

You state this every time the subject comes up, and every time I feel obliged to point out that there is no draft of the treaty yet, so we can't really say what will be in it. We do know that several of the proposals consider handguns and shotguns to be equivalent to missiles and attack helicopters in terms of manufacturing, sales and export controls. We know that several Latin American nations have called for full registration of ammunition and firearms.

Frankly, I think you are way too optimistic about what this treaty will do. I don't expect the U. S. to ratify the treaty; but I'll bet you money right now that the final result would have restricted gun ownership here if implemented. It may not restrict it as much in the countries that do adopt it, since many of them are already much more restrictive.

[thallub]

Frankly, I think you are way too optimistic about what this treaty will do. I don't expect the U. S. to ratify the treaty; but I'll bet you money right now that the final result would have restricted gun ownership here if implemented. It may not restrict it as much in the countries that do adopt it, since many of them are already much more restrictive.

A vocal few have bought into the conspiracy hype that the dastardly blue hats are out to take our guns away. Some refuse to believe that a UN treaty does not trump the US Constitution.

http://74.6.117.48/search/srpcache?e...6RM7Rhorg7zQ--

Acknowledging also the right of States to regulate internal transfers of arms and national ownership, including through national constitutional protections on private ownership, exclusively within their territory,

[Bartholomew Roberts]

No treaty, UN or otherwise, trumps the Constitution. On the other hand, we have 3-4 Justices on the highest court in the land, and numerous judges in lower courts, who don't think that an individual Second Amendment right exists - and the outlines of that right in case law are still very, very narrow. That is the position of last hope, not the first line of defense.

Originally Posted by thallub

Quote:
Acknowledging also the right of States to regulate internal transfers of arms and national ownership, including through national constitutional protections on private ownership, exclusively within their territory

And as I have already explained 3 or 4 times now, that is a 2009 resolution from a handful of countries proposing what they think should be in the treaty. It isn't a guarantee and there is enough vagueness in that statement to allow significant gun restrictions.

[thallub]

On the other hand, we have 3-4 Justices on the highest court in the land, and numerous judges in lower courts, who don't think that an individual Second Amendment right exists - and the outlines of that right in case law are still very, very narrow. That is the position of last hope, not the first line of defense.

US courts abide by the principle of stare decisis : Let the decision stand. Federal courts do not often reverse themselves. Ever wonder why Roe vs Wade has been confirmed by "conservative" leaning courts?

[Bartholomew Roberts]

Originally Posted by thallub

US courts abide by the principle of stare decisis : Let the decision stand. Federal courts do not often reverse themselves. Ever wonder why Roe vs Wade has been confirmed by "conservative" leaning courts?

I can point you to about 20 lower court decisions RIGHT NOW that say Heller and McDonald taken together stand only for the principle that you have the right to possess a revolver in your home for self-defense subject to reasonable regulation. Just recently, the same D.C. Circuit Court of Appeals that found an individual right in the Second Amendment in Heller I, denied a right to own semi-automatic pistols, high capacity magazines or posses one outside of the home in Heller 2. They also concluded that the current Byzantine registration process in D.C. was constitutional.

My general point is not that we need to man the ramparts and do an all out push on this, we do not. However, one of the reasons it remains a distant threat is because of the good work done by pro-RKBA U.S. NGOs. So we shouldn't dismiss every single attempt to raise funds around this issue as fear-mongering. In particular, both the NRA and SAF have gotten certified as NGOs and are taking an active part in the negotiations, both by reporting on what is going on and addressing the UN committee.

As it stands now though, President Obama has indicated he will only sign the treaty if all the other countries agree to it. Since this would be a significant problem for the arms manufacturing industries in China and Russia, who have much more lax export controls than the United States, I would be surprised if that happens. Even if it did happen, we have enough Senators who have indicated they will not ratify a treaty with offensive provisions that even if the Brady Campaign got to pick Senators instead of selecting by popular vote, we would still be safe until after the 2014 elections.

So, is this an urgent concern? No. But the concerns being raised are not fear-mongering, they are just concerns that aren't immediate.

And concerning draft resolutions of the UN Small Arms Trade Treaty, here are a few more, I've highlighted in bold those portions that might concern U. S. gun owners: http://www.un.org/disarmament/convar...Documents.html

Originally Posted by From the UN Small Arms Trade Treaty Programme of Action 2008

1. We, the States participating in this Conference, bearing in mind the different situations, capacities and priorities of States and regions, undertake the following measures to prevent, combat and eradicate the illicit trade in small arms and light weapons in all its aspects:

At the national level

2. To put in place, where they do not exist, adequate laws, regulations and administrative procedures to exercise effective control over the production of small arms and light weapons within their areas of jurisdiction and over the export, import, transit or retransfer of such weapons, in order to prevent illegal manufacture of and illicit trafficking in small arms and light weapons, or their diversion to unauthorized recipients.

3. To adopt and implement, in the States that have not already done so, the necessary legislative or other measures to establish as criminal offences under their domestic law the illegal manufacture, possession, stockpiling and trade of small arms and light weapons within their areas of jurisdiction, in order to ensure that those engaged in such activities can be prosecuted under appropriate national penal codes.

4. To establish, or designate as appropriate, national coordination agencies or bodies and institutional infrastructure responsible for policy guidance, research and monitoring of efforts to prevent, combat and eradicate the illicit trade in small arms and light weapons in all its aspects. This should include aspects of the illicit manufacture, control, trafficking, circulation, brokering and trade, as well as tracing, finance, collection and destruction of small arms and light weapons.

5. To establish or designate, as appropriate, a national point of contact to act as liaison between States on matters relating to the implementation of the Programme of Action.

6. To identify, where applicable, groups and individuals engaged in the illegal manufacture, trade, stockpiling, transfer, possession, as well as financing for acquisition, of illicit small arms and light weapons, and take action under appropriate national law against such groups and individuals.

7. To ensure that henceforth licensed manufacturers apply an appropriate and reliable marking on each small arm and light weapon as an integral part of the production process. This marking should be unique and should identify the country of manufacture and also provide information that enables the national authorities of that country to identify the manufacturer and serial number so that the authorities concerned can identify and trace each weapon.

8. To adopt where they do not exist and enforce, all the necessary measures to prevent the manufacture, stockpiling, transfer and possession of any unmarked or inadequately marked small arms and light weapons. (BR: Got any firearms made between 1899-and 1968?)

9. [b]To ensure that comprehensive and accurate records are kept for as long as possible on the manufacture, holding and transfer of small arms and light weapons under their jurisdiction. These records should be organized and maintained in such a way as to ensure that accurate information can be promptly retrieved and collated by competent national authorities[b]. (BR: i.e. centralized registration)

10. To ensure responsibility for all small arms and light weapons held and issued by the State and effective measures for tracing such weapons.

14. To develop adequate national legislation or administrative procedures regulating the activities of those who engage in small arms and light weapons brokering. This legislation or procedures should include measures such as registration of brokers, licensing or authorization of brokering transactions as well as the appropriate penalties for all illicit brokering activities performed within the State's jurisdiction and control. (BR: Face to face sales between private parties?)

15. To take appropriate measures, including all legal or administrative means, against any activity that violates a United Nations Security Council arms embargo in accordance with the Charter of the United Nations.

16. To ensure that all confiscated, seized or collected small arms and light weapons are destroye, subject to any legal constraints associated with the preparation of criminal prosecutions, unless another form of disposition or use has been officially authorized and provided that such weapons have been duly marked and registered.

19. To destroy surplus small arms and light weapons designated for destruction, taking into account, inter alia, the report of the Secretary-General of the United Nations on methods of destruction of small arms, light weapons, ammunition and explosives (S/2000/1092) of 15 November 2000. (BR: Cheap surplus ammo? Foreign milsurps?)

20. To develop and implement, including in conflict and post-conflict situations, public awareness and confidence-building programmes on the problems and consequences of the illicit trade in small arms and light weapons in all its aspects, including, where appropriate, the public destruction of surplus weapons and the voluntary surrender of small arms and light weapons, if possible, in cooperation with civil society and non-governmental organizations, with a view to eradicating the illicit trade in small arms and light weapons.

21. To develop and implement, where possible, effective disarmament, demobilization and reintegration programmes, including the effective collection, control, storage and destruction of small arms and light weapons, particularly in post-conflict situations, unless another form of disposition or use has been duly authorized and such weapons have been marked and the alternate form of disposition or use has been recorded, and to include, where applicable, specific provisions for these programmes in peace agreements.

I clipped out quite a bit of stuff to try and reduce the "wall of text" effect; but this is just a single document out of dozens generated by the UN Small Arms Trade Treaty.