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« Gun Law Update: Obama Gun Treaty Skirts Congress | Main | Environmental Firearm Abuse »

The Supremacy Issue

Numerous attorneys and others wrote to challenge my position in Page Nine #63 http://www.gunlaws.com/Page9Folder/PageNine-63.htm that Mr. Obama's run-around gun treaty could conveniently bypass the legislative process and the Constitution, like John M. says here:

"While your item in "Page 9" about Congress and the Obamanation Administration using an Inter-American Treaty on 'arms trafficking' to do an end-run around the Second Amendment is certainly scary, I'm not ready to concede (as you appear to do) that a treaty supersedes the Constitution under Article VI." He goes on to describe why Art. VI and other safeguards will protect us.

Many people went into greater detail. Cases were cited (Reid v. Covert; Missouri v. Holland; Whitney v. Robinson; Cherokee Tobacco). One high-placed lobbyist felt fairly safe because, "While an international treaty bypasses House consideration, it requires two-thirds of the Senate for ratification - a tall order even in ObamaNation."

Other people were less sure, like Chuck G. here: "I'm still up in the air about it as I've heard all my life exactly what you stated."

I too always heard what he had heard -- treaties supercede the Constitution -- and always thought it odd. Go read Article VI, cl. 2 yourself. The language is crystalline. One attorney at a high-profile think tank believes, "The federal government will have arguable legal authority to seize our guns and ammunition if this treaty is signed." So...

1. Opinions on the supremacy issue are inconsistent (though often adamant).

2. People who say the treaty won't be a problem point to a number of SCOTUS decisions, and perhaps stare decisis. Maybe that makes those folks fully comfortable with where Mr. Obama is heading on this. Less so for me.

3. SCOTUS precedents are increasingly ignored by those in power, with groovy rationalizations each time. And SCOTUS decisions have so eviscerated key elements of the Constitution, my faith there is shaken, not stirred.

4. The courts, which should provide more balance, a) don't, b) are run by the very people they're supposed to balance, and c) all too often use the completely worthless rational-basis test, knowing it's worthless, to allow every short-of-insane law to stand.

5. Given a choice of support for gun-rights or outright gun bans, we know which way this administration will go.

6. Four of the current SCOTUS Justices have expressed interest in defining U.S. law from foreign sources, leaving us one vote away from a new understanding of the supremacy clause.

7. Perhaps the biggest issue, though, making all else moot, is that new regs you can easily forecast coming from this treaty will be portrayed as a) required by international law so we're only doing what's right, b) required by Article VI however you like to read it, c) consistent with precedent, and most of all, d) not violative of the Second Amendment so no big deal.

After all, if, for instance, every home reloading enthusiast simply has to get a government license, pay an annual tax called a "fee," pass a test, accept "routine" BATFE searches without notice like FFLs must, and keep detailed records so government can fulfill its obligation to track all guns and ammo, backed up with threats of prison time for paperwork errors or a miscount of a single round, what's wrong with that?

Besides, you have an attorney general to protect you who's on record saying a ban on any working firearm in your own home is acceptable under 2A, so, what me worry?

You have a choice: assume the treaty won't be a problem, the supremacy clause will void any abuse and just let Mr. Obama enact the treaty, or remain a bit more skeptical of this man's motives. Choose wisely.


Alan.

P.S. If Mr. Obama is indeed a Marxist at heart as so many people fear and some evidence tends to support, a debate over constitutional principles would be pointless.

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About the Author

  • Freelance writer Alan Korwin is a founder and past president of the Arizona Book Publishing Association. With his wife Cheryl he operates Bloomfield Press, the largest producer and distributor of gun-law books in the country. Here writing as "The Uninvited Ombudsman," Alan covers the day's stories as they ought to read. Read more.

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