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http://patriotpost.us/articles/21444
Judicial Benchmarks: Federalism at the High Court

Although the SCOTUS case covered in this article is not directly related to the 2nd Amendment, the author points out that it has 2nd Amendment implications. This article is gun related because the author mentions the role of treaties in regard to federal law, specifically the UN gun-control treaty, the doctrine of federal supremacy on the one hand, and the limitations set upon the federal government by the 10th Amendment on the other hand.

A big constitutional law battle is about to reach its climax – a battle between the Supremacy Clause of the Constitution and the Tenth Amendment. The Supremacy Clause (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.” The Tenth Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Tenth Amendment was intended to assure ratifying States that the powers of the federal government were limited and would not displace powers and areas of law traditionally belonging to the States. However, with an ever-expanding federal government, there have been increasing clashes of federal and state law. For example, real property and land use laws traditionally are within the bailiwick of the States. However, state control of this area is increasing displaced by federal environmental laws and regulations through the process of preemption.

So the fallout from Bond v. U.S. may well have extensive impact on gun owners, and we should be watching this case. If the "U.S." prevails, you can bet your sweet bippie that its "penumbras and emanations" will rapidly be applied to gun-control issues by this administration—the most hostile to the 2nd Amendment in the nation's history.

Thanks for posting TAM. Sends shivers down my spine and I like you am sure no time will be wasted in using a ruling detrimental to the states as a tool to further clamp down on states in all sorts of ways.

The Annoyed Man wrote:http://patriotpost.us/articles/21444
Judicial Benchmarks: Federalism at the High Court

Although the SCOTUS case covered in this article is not directly related to the 2nd Amendment, the author points out that it has 2nd Amendment implications. This article is gun related because the author mentions the role of treaties in regard to federal law, specifically the UN gun-control treaty, the doctrine of federal supremacy on the one hand, and the limitations set upon the federal government by the 10th Amendment on the other hand.

A big constitutional law battle is about to reach its climax – a battle between the Supremacy Clause of the Constitution and the Tenth Amendment. The Supremacy Clause (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.” The Tenth Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Tenth Amendment was intended to assure ratifying States that the powers of the federal government were limited and would not displace powers and areas of law traditionally belonging to the States. However, with an ever-expanding federal government, there have been increasing clashes of federal and state law. For example, real property and land use laws traditionally are within the bailiwick of the States. However, state control of this area is increasing displaced by federal environmental laws and regulations through the process of preemption.

So the fallout from Bond v. U.S. may well have extensive impact on gun owners, and we should be watching this case. If the "U.S." prevails, you can bet your sweet bippie that its "penumbras and emanations" will rapidly be applied to gun-control issues by this administration—the most hostile to the 2nd Amendment in the nation's history.

"....in persuance thereof..." In other words, any law or treaty which complies with the contractual requirements made by the constitution and the bill of rights are valid and have legitimate authority, those that don't, don't. Any questions then the 10th covers any questions, ".......are reserved to the states respectively, or to the people" If it attempts to infringe on the right to bear arms by any means, then it has no legal validity in this country per Article Vl. It seems to me Marbury vrs Madison already addressed this, if it isn't constitional it has no legitimate authority.

As you say, TAM, a very significant case -- significant for many reasons, including its possible effect upon the 2nd Amendment. It may well be the most significant case before the court today.

I recall those many posts here earlier stating, unanimously IIRC, that it was clear that provisions of the UN weapons-control treaty obviously could not result in bestowing power upon the congress or president. I refrained from interjecting myself into that thread, as I would have had to caution those commentators that the law is really not that clear, which would have undoubtedly led to an unhelpful dispute here on the forum.

Well, the law is obviously not all that clear, or this question would not be before the Supreme Court of the United States.

I find wil's comment of interest, where he mentions Marbury v. Madison, and its potential impact on this case. Marbury v. Madison is recognized by many legal scholars as being sheer obiter dictum, where the Supreme Court, perhaps better to say Chief Justice John Marshall, very early on, seized the power to itself to tell the Congress and the President whether or not something they did is, or was, unconstitutional. Nowhere in the Constitution will you find the court given this power. It took it upon itself. Of course through many years of acquiescence on the part of the legislature and the executive this decision has taken upon itself the quality of unchallengeable law. It might have been different, had the Constitution not then been so new that very few persons, including lawyers and judges, really understood it.

This case, TAM, is on the top of my "watch list," and it surprises me not at all that you are the one bringing it to our attention. Well done.

Jim

I hope you'll both keep us informed on this one. I too see it as being a major issue for the future of the country and constitutional freedoms.

b322da wrote:As you say, TAM, a very significant case -- significant for many reasons, including its possible effect upon the 2nd Amendment. It may well be the most significant case before the court today.

I recall those many posts here earlier stating, unanimously IIRC, that it was clear that provisions of the UN weapons-control treaty obviously could not result in bestowing power upon the congress or president. I refrained from interjecting myself into that thread, as I would have had to caution those commentators that the law is really not that clear, which would have undoubtedly led to an unhelpful dispute here on the forum.

..........................

This case, TAM, is on the top of my "watch list," and it surprises me not at all that you are the one bringing it to our attention. Well done.

Jim

Jim, I have to confess that I was one of those who wanted to put my faith in the power of the Senate, and recognition that if they in fact ratified the UN treaty, the democrat party would cease to exist in the ensuing popular uprising. But even at that time, I thought that Reid was smart AND devious to table the U.N. treaty, instead of out and out shooting it down. By tabling it, he preserves the democrat party, but he likes keeping that bit of potential for deviousness around the way that the U.S. likes to keep its biological and chemical weapons stores on hand. . . . .not because it wants to use them now, but because it might want to hold them over someone's heads in the future. Like any good nazi, he'd rather start shooting the prisoners in his stalag than to give in to their will.

That makes him an agent of Satan.

However, it was this particular article in my opening post that made me see how harmful other seemingly unrelated possible cases could be to the 2nd Amendment. For a long time, I put hope in the 4 "conservative" justices + Kennedy to do the right thing by the nation when Congress overreached its authority. But with Roberts siding with the Administration on such an overreach, I've lost faith in any of them to do the right thing. When the administration argued that the O'Care fine was a penalty, but Roberts found that it was a tax, I lost hope. And as more and more details of its evils become apparent, I am predicting that we will see some very significant pressure on the 2nd Amendment emanating from the (poorly named) ACA.

This president promised during his first campaign to fundamentally transform the cultural, legal, and financial underpinnings underpinnings of the nation. I believed him. Others did not. Perhaps now they will. . . . .but I don't have faith in that.

wil wrote:"....in persuance thereof..." In other words, any law or treaty which complies with the contractual requirements made by the constitution and the bill of rights are valid and have legitimate authority, those that don't, don't. Any questions then the 10th covers any questions, ".......are reserved to the states respectively, or to the people" If it attempts to infringe on the right to bear arms by any means, then it has no legal validity in this country per Article Vl. It seems to me Marbury vrs Madison already addressed this, if it isn't constitional it has no legitimate authority.

I don't remember all the different "controls" the UN treaty says member states have to enforce, but I do remember noting the several of them do not outright ban the sale or possession of firearms. They do control international trade in them, which I doubt is constitutionally protected by the 2nd Amendment, and do implement things like a gun registry, which I would bet would also be found to be constitutional if we didn't have FOPA. So yes, if the treaty attempts to do something that violates the Constitution, it can't be valid. But I wouldn't bet my life that the provisions of the treaty would be found to be unconstitutional.

b322da wrote:I recall those many posts here earlier stating, unanimously IIRC, that it was clear that provisions of the UN weapons-control treaty obviously could not result in bestowing power upon the congress or president. I refrained from interjecting myself into that thread, as I would have had to caution those commentators that the law is really not that clear, which would have undoubtedly led to an unhelpful dispute here on the forum.

Actually several people did raise the issue that the law wasn't that clear. I remember having these discussions in the main UN Treaty thread, and was one of a few people trying to point out that the Senate wasn't a reliable stop-gap for this particular treaty. I'm anxious to at least find out how this is decided, we shall see how it effects things like UN Small Arms Treaty...

Not to "annoy" you, TAM, and not to open that dispute I avoided earlier, at least I will not join it if it develops, in my opinion it is also not absolutely clear that an Executive Agreement, not improperly often also termed a treaty, cannot lawfully authorize legislative and/or executive, power outside the fixed terms of the Constitution. In that earlier thread we both mentioned this question was almost, but not entirely (sorry, mewalke) universally laughed at as being impossible, including by at least one lawyer, and I knew I would start a particularly unhelpful debate if I said this then. Please understand that I am not making a case, I am just raising an issue which, whether they accept the truth of it or not, could be of great, if not critical, interest to members of this forum. Much too often people think that the law is what they want it to be, but not necessarily what it really is.

I mean this to be only a caution about our members being too sure about complex legal matters. Being too sure about a question which is unclear enough to rise to the Supreme Court can, to use a meaningful term here, lead to poor situational awareness.

If that should ultimately be the case, there may be another reason entirely why Sen. Reid tabled the UN treaty other than just waiting for a possible GOP disaster in 2014 due to its being so split up. Things that happened nationwide on November 4 have caused some, but not all, credible commentators to opine that we clearly saw evidence of this in New Jersey, Virginia and Alabama -- Alabama, of all places.

I only mean to say that in my humble opinion this question is also open to a decision by the Supreme Court if it gets the question. Funny things happen on the way to the law books, TAM. :)

Jim

b322da wrote:Not to "annoy" you, TAM, and not to open that dispute I avoided earlier, at least I will not join it if it develops, in my opinion it is also not absolutely clear that an Executive Agreement, not improperly often also termed a treaty, cannot lawfully authorize legislative and/or executive, power outside the fixed terms of the Constitution. In that earlier thread we both mentioned this question was almost, but not entirely (sorry, mewalke) universally laughed at as being impossible, including by at least one lawyer, and I knew I would start a particularly unhelpful debate if I said this then. Please understand that I am not making a case, I am just raising an issue which, whether they accept the truth of it or not, could be of great, if not critical, interest to members of this forum. Much too often people think that the law is what they want it to be, but not necessarily what it really is.

I mean this to be only a caution about our members being too sure about complex legal matters. Being too sure about a question which is unclear enough to rise to the Supreme Court can, to use a meaningful term here, lead to poor situational awareness.

If that should ultimately be the case, there may be another reason entirely why Sen. Reid tabled the UN treaty other than just waiting for a possible GOP disaster in 2014 due to its being so split up. Things that happened nationwide on November 4 have caused some, but not all, credible commentators to opine that we clearly saw evidence of this in New Jersey, Virginia and Alabama -- Alabama, of all places.

I only mean to say that in my humble opinion this question is also open to a decision by the Supreme Court if it gets the question. Funny things happen on the way to the law books, TAM. :)

Jim

No apologies necessary, I just wanted to point out a few of us were concerned about the very things you and this case are pointing out. Let's hope the whole thing is relegated to the history books, but I can't help but feel like anti-gun folks have a plan for the treaty...

b322da wrote:Not to "annoy" you, TAM, and not to open that dispute I avoided earlier, at least I will not join it if it develops, in my opinion it is also not absolutely clear that an Executive Agreement, not improperly often also termed a treaty, cannot lawfully authorize legislative and/or executive, power outside the fixed terms of the Constitution. In that earlier thread we both mentioned this question was almost, but not entirely (sorry, mewalke) universally laughed at as being impossible, including by at least one lawyer, and I knew I would start a particularly unhelpful debate if I said this then. Please understand that I am not making a case, I am just raising an issue which, whether they accept the truth of it or not, could be of great, if not critical, interest to members of this forum. Much too often people think that the law is what they want it to be, but not necessarily what it really is.

I mean this to be only a caution about our members being too sure about complex legal matters. Being too sure about a question which is unclear enough to rise to the Supreme Court can, to use a meaningful term here, lead to poor situational awareness.

If that should ultimately be the case, there may be another reason entirely why Sen. Reid tabled the UN treaty other than just waiting for a possible GOP disaster in 2014 due to its being so split up. Things that happened nationwide on November 4 have caused some, but not all, credible commentators to opine that we clearly saw evidence of this in New Jersey, Virginia and Alabama -- Alabama, of all places.

I only mean to say that in my humble opinion this question is also open to a decision by the Supreme Court if it gets the question. Funny things happen on the way to the law books, TAM. :)

Jim

Jim, I'm not annoyed at all. What I'm confessing is that my eyes are being opened. I confess to having once had better faith in the process than I do now, and it is disconcerting, to say the least. The Senate has become a den of thieves, a whitewashed tomb. They think they are "co-presidents" rather than servants of the states that sent them there. And once they get there, they are so eager to be recognized members of the club that they forget about home. "Home" becomes DC, and they never want to leave its enchantments. They will sell the country down the river if that's what it takes to stay there. They've got theirs, and to hades with everyone else.

And Reid is in charge of it. He has no regard for the Constitution, other than how it can be used to bolster his power.

But that is the Senate. SCOTUS can be far more insidious, because against them, The People have almost no electoral recourse. . . . .particularly since Harry Reid's Senate advises and consents on their nominations. SCOTUS is accountable to nobody; not even to the Senate that places them in office. In that environment, Bond v. U.S. ought to scare the pants off of anyone who loves individual liberty.

The Annoyed Man wrote:But that is the Senate. SCOTUS can be far more insidious, because against them, The People have almost no electoral recourse. . . . .particularly since Harry Reid's Senate advises and consents on their nominations. SCOTUS is accountable to nobody; not even to the Senate that places them in office. In that environment, Bond v. U.S. ought to scare the pants off of anyone who loves individual liberty.

Well, there's constitutional amendments, but good luck getting one of those passed in our current political climate.